Barstool Sports wins defamation claim despite inflammatory allegations against plaintiff

This case tells us how difficult it is to win a defamation case in New York. Plaintiffs can win when someone conveys a disparaging falsehood about them, but there are numerous defenses that can force the trial court to dismiss the case prior to trial.

The case is Rapaport v. Barstool Sports, Inc., a summary order issued on January 9. Barstool is a media enterprise with a presence on the Internet and satellite radio, among other places, where the hosts talk about sports, politics, pop culture, etc., in an unfiltered and controversial manner. Rapaport is an actor, performer and comedian who signed a contract with Barstool as one of its commentators. But the parties then had a falling out, and other Barstool personalities publicly called Rapaport a racist and a fraud, said he had stalked and physically attacked his ex-girlfriend, and that Rapaport has herpes. If the allegations were false, you would think this would be actionable defamation case, but the case was dismissed in the district court and the Court of Appeals that plaintiff has no case.

You can only win a defamation case when the defendant asserts untrue facts against you. Opinions are not fact and cannot predicate a defamation case. We also consider the context of the allegedly defamatory statements, in that hyperbole and non-literal language is not actionable, and if the reader or listener would understand that the forum is not the place for serious discussion, then the disparaging comments are not actionable. Here is why the district court dismissed the case:

[T]he 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.

In other words, the fact that these statements were made on the Barstool platform, and not the New York Times podcast, doom this case. The New York Court of Appeals has said that "the forum in which a statement has been made, as well as the other surrounding circumstances comprising the ‘broader social setting,’ are only useful gauges for determining whether a reasonable reader or listener would understand the complained-of assertions as opinion or statements of fact.”  The Second Circuit also says that the context of this case "was one within which even certain ostensibly factual statements could be reasonably understood as part of a 'tasteless effort to lampoon' because they were made '[i]n the emotional aftermath of a [situation] when animosity would be expected to persist' and in circumstances where 'an audience may anticipate the use of epithets, fiery rhetoric or hyperbole.'”