Barstool founder David Portnoy on Monday sued Insider for defamation, claiming the publication falsely accused him of sexual assault in two exposés on his life. The complaint also names Insider co-founder and CEO Henry Blodget, global editor-in-chief Nicholas Carlson, and writer Julia Black as defendants. The case was filed in a federal district court in Boston.
The two stories describe Portnoy, 44, as assaulting three unnamed women and recording them without their consent. Portnoy is depicted as a sexual predator who preys on women half his age.
Through his attorneys, which include Howard Cooper at Todd & Weld, Portnoy flatly denies the accusations, dismissing them as “outright fabrications.” He contends that Insider acted with “malicious intent” and, guided by “clickbait journalism,” sought to generate reader traffic and accompanying advertising revenue at the expense of honest reporting. In that same vein, Portnoy charges that Insider sought to exploit modern “cancel culture” and, to inflict maximum harm, timed the stories to coincide with earnings announcements of Penn National Gaming. Penn owns a 36% stake in Barstool.
Portnoy argues the stories amount to defamation per se, meaning false statements so obviously damaging to the plaintiff’s reputation that they relieve the plaintiff of having to prove damages. Falsely claiming another person has committed a crime, suffers from an infectious disease or engages in extramarital affairs have all counted as defamation per se in case law. The Insider stories depict Portnoy as committing at least two types of crimes: sexual assault and unlawful recording.
Portnoy, who has 2.7 million followers on Twitter and is host of a popular podcast, is likely to be classified by the court as a public figure. Public figures ordinarily must establish actual malice, meaning proof the claims were published with knowledge of being false or with reckless disregard as to whether they were true or false.
The complaint asserts that Insider intentionally omitted potentially exonerating or mitigating details. They include a police report that “does not accuse Mr. Portnoy of any criminal conduct whatsoever,” a statement from the mother of one of the accusers that “contained no allegations of rape, sexual assault, or any other crime for that matter” and various communications between an accuser and Portnoy that allegedly undermine the claims. This depiction portrays Insider as acting with malice: By omitting reference to conflicting evidence, Insider either knew the stories had potential errors or didn’t care either way.
Portnoy also draws attention to the way Black communicated with him. As Portnoy tells it, Black emailed him in April 2021 with an interview request for an Insider profile. The email (as retold by Portnoy) underscored there was “no particular angle here” and that she was interested in discussing his building of a media empire and how he had “becom[e] the face of the meme stock movement.” Portnoy declined and later learned, through persons whom Black had allegedly contacted, the story would focus on his interactions with women. In November, Black emailed Portnoy with a request for comment on 38 bullet points of what he termed “false and unsubstantiated allegations,” and warned him he had 24 hours to comment.
The complaint also includes a claim for invasion of privacy, charging that Insider unlawfully disclosed private information without Portnoy’s consent. The information includes “highly personal text messages and social media messages.” These invasions of privacy and violations of “personal integrity,” Portnoy says, left him feeling “humiliated” and “ashamed.”
In the weeks ahead, Insider and the other defendants will answer the complaint and file a motion to dismiss. Attorneys for the defendants will likely raise several defenses.
First, they’ll argue the stories are accurate. If the stories’ claims are true, there is no defamation, even if the stories could be portrayed as overly harsh, opportunistic or journalistically unfair. There is no better defense to defamation than truth.
Second, Insider will likely insist it engaged in extensive due diligence in reporting on the story and that the story was reviewed carefully by editors and attorneys. Portnoy’s complaint notes that the story apparently took eight months to investigate. That is a long window of reporting and suggests significant energies were spent to get the story right. The more that Insider can insist it acted responsibly, the more it can effectively parry the claims.
Third, Insider can rely on significant discretion the First Amendment supplies media companies in reporting on matters of public concern. The U.S. Supreme Court has emphasized the freedom of the press, a freedom that Barstool has used in becoming a dominant force in media. Here, Insider can stress that Portnoy turned down an interview request—an opportunity to give his side—that might have reshaped the reporting.
Fourth, Insider will likely cast doubt on Portnoy suffering invasion of privacy. It can accentuate that Portnoy has made his personal life part of his public persona and used it to market products and services. This defense is not a sure-fire winner: A few years ago, Gawker thought this defense would work in Hulk Hogan’s case, which centered on publication of an edited sex tape. Hogan won a $140 million judgment.
Portnoy v. Insider has been assigned to Chief Judge F. Dennis Saylor IV, a former federal prosecutor who was appointed to the court in 2004. Saylor might be a particularly good fit for this media law case. He earned a Bachelor of Science in journalism from Northwestern’s Medill School of Journalism before going to law school at Harvard.
Should Portnoy’s lawsuit advance past a motion to dismiss, Portnoy, Blodgett and Black would all likely have to provide sworn testimony about the underlying accusations and the reporting. Emails and texts, including those between reporters and editors who worked on the story, could also be subject to disclosure. The case is many months, if not years, from a jury trial and could end in a settlement at any time.
Portnoy’s lawsuit comes as a federal jury in New York City hears former Alaska Gov. Sarah Palin’s case against The New York Times for defamation. One difference in Palin’s case is that the Times acknowledged it erred in attempting to link Sarah Palin’s PAC to the shooting of former Congresswoman Gabby Giffords. Here, Insider stands by its reporting.
