MANHATTAN (CN) — Actor Michael Rapaport urged an appeals panel on Wednesday morning to revive his civil defamation claims against the popular sports and pop culture website Barstool Sports, which had briefly hired him as a podcast host.
The 53-year-old actor and comedian claimed in a 2019 amended complaint that Barstool defamed him in public statements and in a diss song video that portrayed him as having herpes and having physically abused his ex-girlfriend.
The defamation claims were added to a 2018 contract action filed by Rapaport after his eight-month stint at Barstool ended with his firing for making a rude comment toward their 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 requires a reasonable audience to understand that the speaker is stating an objective fact opposed to an opinion.
Rappaport appealed the dismissal, claiming there was no humor in Barstool’s allegations. The defamatory attacks on his character were merely spread to hurt his reputation and cause speculation, he said in an appeals brief.
The actor further asserted on appeal that the district court ignored his financial and reputational harm as a a result of Barstool's defamatory campaign.
"This was nowhere characterized as satire. This was not a Saturday Night Live sketch. This was a one-sided campaign to destroy Mr. Rapaport’s career, by all means necessary,” the brief states. "And it worked. Appellants' podcast was destroyed, with its rating going from 4.5 stars to 1.5 stars, advertisers lost, and the comment section littered with incendiary statements repeating the Appellees' statements that Mr. Rapaport beat women, has herpes, is a stalker, a fraud, and a racist."
During oral arguments before the Second Circuit Court of Appeals, U.S. Circuit Judge Denny Chin asked, “Would a reasonable listener or reader really take this as truth?”
“Absolutely,” Rapaport’s attorney Busch replied. “Absolutely?” Judge Chin asked in response.
The Obama-appointed judge asked Rapaport’s attorneys if they were ignoring the fact that the actor was dishing out his own share of boorish insults as well.
Rapaport’s appeal says Barstool repeatedly defamed him for purportedly carrying the sexually transmitted herpes infection, referring to him as a "Herpes-riddled fuck," a "herpe-having, race baiting, D-list actor," and a "75-year-old, herpe-having piece of shit."
Busch pointed to the recent herpes-related libel precedent from the U.S. Court of Appeals for the Eleventh Circuit, which upheld rapper Cardi B’s $4 million defamation verdict against YouTuber Tasha K, who had referred to the “WAP” rapper as “Cold Sore B” and accused her of testing positive for herpes.
“Isn’t part of the context Mr. Rapaport making similarly distasteful comments about the Barstool personalities?” the judge asked Rapaport’s lawyer.
Aaron Moss, an attorney representing Barstool, argued on Wednesday that “context is key,” telling the judges, “For better or worse, Michael Rapaport and Barstool Sports inhabit the same online ecosystem… one that thrives on hyperbole-fueled conduct [and] insults.”
Rapaport holds himself out as the "MVP of Talking Trash," Moss told the panel, noting the actor had a reputation for making offensive comments long before the Barstool spat. "He has no agenda but talking shit,” the lawyer said, preemptively apologizing for the coarse language.
Moss later recited a February 2018 Rapaport tweet responding to Barstool Sports bloggers, saying, “The only thing I ever beat was my dick in your mom’s pussy.”
Barstool argued in its appellee brief that Rapaport’s professional career had not suffered the harm he claimed, and said he “thrived” after his firing from the sports website, including landing a starring role on the Netflix series "Atypical."
"After he was fired from Barstool, Rapaport received a $700,000 podcast guarantee from the Luminary podcast network, which was well above the $400,000 podcast guarantee he had received from Barstool," the brief states.
Judge Chin was joined on the panel by the Trump-appointed U.S. Circuit Judge Joseph Bianco and George W. Bush-appointed U.S. Circuit Judge Richard Wesley.
The Second Circuit did not immediately issue a ruling on Rapaport’s appeal.
Barstool Sports and its founder Dave Portnoy have each had run-ins with the law as well, including various copyright issues and Portnoy being detained during Super Bowl LIII for creating fake press passes.
Earlier this year, Penn Entertainment Inc. paid about $388 million to acquire the remaining stake in Barstool Sports that it did not previously own, but it reversed course in August and sold 100% of outstanding Barstool shares back to Portnoy after signing a deal with ESPN to rebrand their existing sports betting platform without Barstool.
Rapaport, a New York native and lifelong Knicks fan, is currently a Fox Sports reporter and host of 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.”
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