A Massachusetts federal judge on Monday dismissed Barstool founder David Portnoy’s defamation and invasion of privacy lawsuit against Insider over two exposés that portrayed him as a sexual predator. In addition to the publication, the suit named its co-founder and CEO Henry Blodget, global editor-in-chief Nicholas Carlson and writers Julia Black and Melkorka Licea. Chief Judge F. Dennis Saylor IV reasoned that Portnoy came up short in making the case that the defendants published the articles with actual malice.
The stories, published on Nov. 4, 2021 and Feb. 2, 2022, described Portnoy as preying on young women, recording them without consent and possibly assaulting them. Portnoy denied the allegations and argued that Insider defamed him in publishing false claims that hurt his reputation. Portnoy suggested the stories were designed to convince readers to sign up for Insider’s paid subscription service, which was required to read the full text. He noted that Insider marketed a “68% off” promotion on the day the first story ran.
Insider maintained it enjoys broad discretion under the First Amendment and that Portnoy cannot prove the stories’ content is false. The publication also insisted that Portnoy, as a public figure, could not prove actual malice, i.e. proof the claims were published with knowledge that they were false or with reckless disregard as to whether they were true or false.
Public figures must show actual malice in a defamation suit, and the judge observed that neither Portnoy nor Insider disputed that he is a public figure. The complaint, in fact, described Portnoy as “the well-known founder of Barstool Sports” and “one of Massachusetts’s most well-known entrepreneurs and media personalities.”
Saylor, who studied at Northwestern’s Medill School of Journalism before going to law school at Harvard, then proceeded to critique Portnoy’s complaint. The suit alleged a “targeted smear campaign” that included contacting Barstool’s advertisers and urging them to cut ties with Barstool, but Saylor ruled “such allegations of animosity or ill will … do not suffice to plead actual malice.”
Saylor also questioned the complaint’s assertion that Insider knew the articles contained “fabricated” accounts by three women. Saylor noted that Portnoy “does not dispute he had sex with the women, or that he filmed them during sex.” He also found it telling that Portnoy didn’t challenge that one of the women said she injured a rib during a sexual encounter with him or that Insider did not “expressly accuse him of criminal sex assault.”
As far as “reckless disregard for the truth,” Saylor noted that Insider “corroborated the women’s accounts” by incorporating eyewitness statements, photographs, texts, social media messages, medical reports, an Uber receipt and other materials reflective of due diligence. The judge also underscored that Portnoy “admits that Insider investigated its first article for months, requested an interview with him, sought his comment before publication, included his denials and hyperlinked to his press conference and his lawyer’s full denial letter.” The complaint also doesn’t assert the anonymous sources were fabricated.
Saylor also found Portnoy’s invasion of privacy claim lacking, too. Portnoy argued Insider had unlawfully disclosed private information without his consent, but Insider rebutted that “Portnoy’s troubling behavior towards much younger women … is part of ‘the broader social context’ of the #MeToo movement.” In response, Portnoy insisted allegations of misconduct against him are not part of the #MeToo movement since he never worked with the accusers.
Saylor wasn’t persuaded by Portnoy’s #MeToo distinction. “The Court,” Saylor wrote, “declines to adopt that narrow view of newsworthiness. Issues of consent and power imbalance in sexual relationships are very much matters of current public concern, and the legitimate public interest in those issues is not limited to matters that arise only in the employment context.” He reasoned that Portnoy “had no reasonable expectation of privacy in the text and social media messages published by Insider.”
Portnoy can appeal the dismissal to the U.S. Court of Appeals for the First Circuit.