Barstool Sports Wins Legal Battle After Michael Rapaport Herpes Claim
September 26, 2022
Today in legal news, Barstool Sports has won their court case against Michael Rapaport and the Chernin Group, who sued them for defamation after Barstool claimed that Rapaport had herpes (they did not specify which strain). You can read the full decision here but I’ve provided you with the highlights below. Let’s get to it!
How the lawsuit began
It all started with an email to Barstool’s managing editor, Keith Markovich.
Michael Rapaport filed suit in New York State Supreme Court, claiming that the blog was causing him harm and damage, insisting that he has never had herpes, the blog post said. Rapaport demanded that we ‘cease’ from posting any content related to his person.
A post on Barstool‘s website then responded with a text message of what appears to be herpetic genitalia sent by a man they called Herp Papi. The response drew laughter and applause from Barstool employees.
The judge finds defamation but dismisses it
The District Court found that the website posted untrue facts that are harmful to another person’s reputation, meaning it had committed defamation. But the judge did not stop there.
The court ruled that while the statement harmed Barstool’s image and might have violated the law, it did not harm Michael Rapaport.
As a result, they dismissed the suit under the jurisdiction of tort (a cause of action arising from wrongdoing) which means unless Rapaport could show he suffered damages as a result of this statement, there was no real case against Barstool.
What makes an opinion protected under freedom of speech? An opinion is protected by free speech if it’s sufficiently factual to be proven as true or false. For example, a statement that the latest Star Wars movie was lame is not protected because it cannot be proven to be true or false. In Barstool’s case,
in which Michael Rapaport alleges he suffers from herpes, his statement could easily be proven true or false based on medical tests and facts. However, when someone makes a statement about themselves, such as being infected with herpes, an individual must show that actual malice exists—
meaning that one knew that what they said was untrue and published it anyway with reckless disregard for its truthfulness.
The judge blames Ayesha for not being funny enough
Ayesha fails to allege that Barstool said anything about her that is obviously and demonstrably false. Ayesha is not a comedian, comedian, or writer. It is not apparent from the Complaint what jokes or statements were made at Ayesha’s expense if any.
The Court can reasonably infer from the Complaint that it was likely these alleged jokes were in poor taste, but this inference falls short of being obviously and demonstrably false.
More importantly, there are no facts alleged in the Complaint showing with substantial certainty what was written and by whom. Consequently, the Court concludes that the complaint must be dismissed without prejudice.
So here is a lesson for all of us: if you are going to get offended about something that someone said, make sure that it’s funny. This case presents an example of a non-funny person getting very upset about something that is not funny and suing over it in federal court. This Court is having none of it.
Accordingly, Ayesha’s complaint will be dismissed without prejudice. She should feel free to try again; maybe next time she can come up with something better than being upset because Barstool allegedly made some inappropriate jokes on Twitter at her expense… or lack thereof.
How both sides lost out on this lawsuit
If you can’t say anything nice, don’t say anything at all. This is a lesson Michael Rapaport and Ashley O’Connor have both learned the hard way, and they’ve paid dearly for it. After Ashley, who works as an office manager at Barstool Sports, refused to take back an accusation that he had herpes,
the company filed a defamation lawsuit against her – one which not only sought to protect their brand name but also to set an example for others in their industry.
Yet while Barstool’s aggressive legal strategy proved effective in defeating the original suit, they may not have known just how high their victory would cost them.
There is no denying that Barstool Sports has had a very tumultuous past. But, as it turns out, there are some benefits to not always being politically correct. Namely, the website can say whatever they want and won’t be sued for it.
It doesn’t always have to be about sports either, as proven with its vitriolic commentaries on the recent Jerry Seinfeld stand-up tour cancellation. However, when it comes to legal matters,
Barstool has been lucky in this instance. The claim of the website having herpes was eventually overturned in a federal court judge’s decision which in turn prevents future claims from being filed against them under these circumstances without running the risk of financial penalties or even an injunction.
Keep browsing Law Scribd for more updates.