July 31, 2021

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Barstool Sports Survives Saying Michael Rapaport Had Herpes In This Incredible Federal Opinion

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, SEO, Wordpress Support & Insurance, Mortgage, Loans, Legal, Etc BlogsCan a media entity like Barstool Sports ever be effectively sued for defamation? The answer is obviously yes, but satirical media sources such as the one presided over by David Portnoy have certain built-in protections that may not be enjoyed by others, making it much more difficult for a potential plaintiff to prevail.

On March 29, Judge Naomi Reice Buchwald of the U.S. District Court for the Southern District of New York issued a memorandum and order in the pending case of Michael Rapaport v. Barstool Sports, Inc. et al. on cross-motions for summary judgment, which granted the defendants’ motion to remove Rapaport’s counts of fraud and defamation. The 64-page opinion was either the most difficult or enjoyable document that the federal judge ever issued, as it was laced with profanity and very vulgar images since it was important for the judge to recount the salient facts in the background section.

The interesting, defamation-related analysis, begins on page 29 of the memorandum. Rapaport’s cause of action for defamation was based on approximately 80 statements made by the defendants, and Buchwald said none of them were actionable. The statements included accusations that Rapaport was being racist, a fraud, a hack, and a wannabe, as well as Rapaport having herpes and abusing his ex-girlfriend.

A basic way for a defendant to avoid liability for an alleged defamatory statement is to show that the statement itself was not one of fact but instead grounded in opinion. Under New York law, the court must decide whether the claimed defamatory statements would have been understood by a reasonable audience as assertions of fact that were proffered for their accuracy, and the court is to focus on the overall context in which the assertions were made to determine whether a reasonable reader would have believed that the challenged statements conveyed facts, as opposed to opinions, about the plaintiff.

The tone and apparent purpose of the publication should be taken into consideration, such as when the tone of the publication indicates that the writer is presenting information as satire or fiction. Furthermore, the court is to acknowledge that there are circumstances where the audience may anticipate the use of epithets, fiery rhetoric, or hyperbole, which leads to a statement being classified as opinion rather than a statement of fact.

Buchwald began applying the above to statements concerning Rapaport being a racist, a fraud, a hack, a wannabe, and a liar. She concluded that these types of labels cannot be statements of fact, because they cannot be objectively proven true or false. The discussion on race is particularly interesting. Rapaport introduced evidence that he is married to a Black woman and that he has had many Black guests on his podcast. Buchwald said that such evidence cannot rise to the level of establishing objective proof that Rapaport is not a racist (while carefully indicating that she also does not intend to suggest that Rapaport is a racist).

While one cannot easily objectively prove that someone is a racist, it is somewhat easier to prove whether someone has herpes or has committed domestic abuse. Rapaport met his burden of proof by providing a negative test result for herpes and demonstrating that he was never convicted of battery. Yet, the allegations of defamation were still kicked out by Buchwald because she held that the statements, in the context they were provided, would not have been understood by the audience as assertions of fact proffered for their accuracy. Basically, the defendants were given a win here because they are generally spewing overtly biased viewpoints full of epithets, vulgarities, hyperbole, and nonliteral language and imagery.

The specific language used by Buchwald to shield the defendants could be important for future litigants involved in allegations of defamation arising from blogs, podcasts, and social media. She wrote, “the statements were largely laden with epithets, vulgarities, hyperbole, and non-literal language and imagery; delivered in the midst of a public and very acrimonious dispute between the Barstool Defendants and Rapaport that would have been obvious to even the most casual observer; and published on social media, blogs, and sports talk radio, which are all platforms where audiences reasonably anticipate hearing opinionated statements.”

Buchwald dove deep into many specific statements such as those uttered by the defendants in what was referred to as a “Fire Rap” diss track, which included calling Rapaport a “herpes-having motherf**ker giving girls the heebie jeebies,” a “herpes-ridden f**k,” the “perp with the herp,” and a “75-year old, herpe-having piece of shit.” First, Buchwald noted that these comments were made while the parties were engaged in a hostile public feud, which would cause the audience to anticipate the use of hyperbole. Second, Buchwald examined the tone and apparent purpose of the diss track and concluded that the audience would not come to think the claims reflected an accurate factual assessment of Rapaport. In what must have been an extremely awkward or entertaining experience for Buchwald, she highlighted that the defendants used other sensational assertions surrounding the alleged defamatory material, such as that Rapaport was a “f**king 10 gallon drum of curdled milk” and a “walking blob of jizz.” Third, with regard to the allegation that Rapaport had herpes, Buchwald pointed to a post that the defendants made highlighting a red lesion under Rapaport’s lip, impliedly stating that the defendants at least had some grounds for their theory.

The ruling seems to provide broad protections to statements made on generally satirical and over-the-top blogs and social media accounts. It almost feels as though the defendants could have gotten away with saying anything as long as the statements had any chance of being classified as opinions with the authors not explicitly saying, “I know this to be true.”


Darren Heitner is the founder of Heitner Legal. He is the author of How to Play the Game: What Every Sports Attorney Needs to Know, published by the American Bar Association, and is an adjunct professor at the University of Florida Levin College of Law. You can reach him by email at [email protected] and follow him on Twitter at @DarrenHeitner.

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