Barstool Sports’ ‘tasteless effort to lampoon’ did not defame Michael Rapaport, appeals court affirms

MANHATTAN (CN) — Barstool Sports’ online smack talk against actor Michael Rapaport was not defamatory, a federal appeals court held on Tuesday.

The 53-year-old actor and comedian claimed in a 2019 amended complaint that the popular sports and pop culture website Barstool Sports, which had briefly hired him as a podcast host, defamed him in public statements and in a diss song video that portrayed him as a racist fraud, having herpes sores, and having physically abused his ex-girlfriend.

The Second Circuit on Tuesday dismissed Rapaport’s revived defamation claims on appeal, finding that Barstool’s statements about him being a racist and a fraud are nonactionable because they “lack a clearly defined meaning” and cannot be proven true or false.

“Moreover, none of Barstool’s statements implied that it was based on undisclosed facts known to the speaker,” the appeals panel wrote in its 11-page opinion. “Therefore, no reasonable reader could find that the statements alleging racism or fraud were conveying facts about Rapaport, as opposed to reflecting the opinion of the speaker.”

The appeals panel noted that the dismissal is supported weighing the entire context surrounding the purportedly defamatory statements.

“The District Court appropriately considered that the statements at issue were made in the context of a hostile, vulgar and hyperbolic feud between Rapaport and Barstool as a result of his termination,” the panel wrote.

“That context 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,” the opinion continues.

Aaron Moss, an attorney representing Barstool Sports told Courthouse News the company is pleased the appeals court recognized such context "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."

"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'," he said Tuesday afternoon. "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."

Rapaport’s defamation claims were added to a 2018 contract action he filed after his eight-month stint at Barstool ended with his firing for making a rude comment about the site's fan base, known as "Stoolies."

U.S. District Judge Naomi Reice Buchwald dismissed Rapaport's defamation claims on summary judgment, finding the disputed statements were not “actionable assertions of fact” to be considered defamatory under New York law. The standard required a reasonable audience to understand that the speaker is stating an objective fact, as opposed to an opinion, Buchwald wrote.

On appeal, the three-judge panel affirmed the lower court’s dismissal, finding that other cited statements about Rapaport having herpes, being a stalker or being a domestic abuser also were nonactionable opinion and in a larger context occurred on media — sports talk radio, online blogs, and the social media platform then known as Twitter — where “audiences reasonably anticipate” opinioned statements.

The panel was composed of U.S. Circuit Judge Denny Chin, an Obama appointee; Trump-appointed U.S. Circuit Judge Joseph Bianco; and Senior U.S. Circuit Judge Richard Wesley, who was appointed by George W. Bush.

Rapaport, a New York native and lifelong Knicks fan, is a Fox Sports reporter and hosts his own podcast on the iHeartPodcasts network, “I Am Rapaport: Stereo,” which is promoted as sharing “his strong, funny & offensive points of view on life, sports, music, film & everything in between.”

Representatives for Rapaport did not immediately respond to requests for comment on Tuesday.

Barstool Sports has been involved in other recent litigation. In 2023, Penn Entertainment paid about $388 million to acquire the remaining stake in Barstool Sports that it did not already own. The company reversed course in August and sold 100% of outstanding Barstool shares back to Dave Portnoy, the 46-year-old founder, after signing a deal with ESPN to rebrand their existing sports betting platform without Barstool.

Portnoy sued Business Insider for defamation in 2022 over the website’s claims of misogyny and nonconsensual sexual misconduct with young women. The Barstool founder’s complaint was thrown out by a Massachusetts federal judge who found that Insider’s statements were not were made maliciously, and his invasion of privacy claims failed because “issues of consent and power imbalance in sexual relationships” are of public interest.

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