Greenberg Glusker Litigation Team Secures Victory in Second Circuit for Client Barstool Sports in Defamation CaseJanuary 9, 2024 – Press Release
Aaron Moss, Ricardo Cestero, and Steve Stein of Greenberg Glusker’s Litigation Department, along with Intellectual Property Department Chair Jesse Saivar, prevailed in a Second Circuit Court of Appeals decision issued on January 9, 2024, concerning defamation claims brought by actor and comedian Michael Rapaport.
Rapaport first sued Barstool, its founder Dave Portnoy and other Barstool personalities in 2018 for defamation, claiming that Barstool defamed him by making statements relating to him being a racist, a fraud, having herpes, and abusing his ex-girlfriend. Rapaport sought over $15 million in damages.
Barstool argued that these comments needed to be considered in context. Rapaport, the self-proclaimed “MVP of Talking Trash,” engaged in a public war of words in which he attacked and insulted Barstool, the company that was paying him, along with its employees and fans. Barstool responded in kind through humorous and over-the-top social media and blog posts. Many of these statements were hyperbolic in nature—for example, Barstool released a diss track video depicting Rapaport as a cartoon saltine cracker. Barstool argued that, for these and other reasons, no reasonable person who read, heard or viewed these statements would understand them to be statements of fact.
The Southern District of New York agreed with Barstool, issuing in March 2021 a lengthy summary judgment decision in which it found that these statements were nonactionable statement of opinion. The District Court’s decision was unique in that it included many images of the risqué posts at issue, underscoring that they were made in the context of an online schoolyard brawl.
On January 9, 2024, the Second Circuit affirmed this decision (read the opinion here), concluding “the district court carefully and correctly determined on this record that no reasonable reader or listener could have viewed any of the challenged statements to be conveying any expressed or implied facts about Rapaport.” The Second Circuit held that the statements claiming that Rapaport was a racist and fraud “are non-actionable because they lack a clearly defined meaning and, in this context, are incapable of being objectively proven true or false.” The Second Circuit wrote that the district court correctly found that the other statements at issue—that Rapaport has herpes, is a stalker, or has committed domestic abuse—were also non-actionable opinion “based on careful evaluation of all of the surrounding circumstances.”
Of the court’s ruling, Mr. Moss stated, “This case involved what can best be described as the internet’s version of a schoolyard brawl between a media company known for its irreverent and hyperbolic humor and the self-proclaimed ‘MVP of Talking Trash.’ We’re pleased that the Second Circuit took this context into account in evaluating the over-the-top insults at issue in this case and recognized that no reasonable person would believe them to be statements of fact. Crude memes and vulgar diss tracks featuring a talking lesion and an anthropomorphic cracker may not be the highest form of discourse, but they were rightly protected in the context of this case.”
This dispute has been hotly litigated for over five years, with the parties taking dozens of depositions and filing extensive summary judgment briefings. The lawsuit has contained many twists and turns. For example, a clip from Portnoy’s deposition went viral, garnering over 2.5 million views. And at the November 15, 2023, oral argument before the Second Circuit, Mr. Moss read aloud a series of Rapaport’s profane and vulgar online posts to underscore the context in which they were made.