Judge tosses David Portnoy's complaint over articles about his sex life; he appeals

A federal judge in Boston this week dismissed Barstool Sports publisher David Portnoy's lawsuit against another Web site that accused him of manhandling women during sex, ruling that as a public figure, he had to prove malice but he failed to do so.

Portnoy, a former Lower Mills resident who claims he now lives on Nantucket after moving his operation to New York, filed an appeal yesterday in the US Court of Appeals for the First Circuit, in Boston.

Portnoy sued Insider in February, alleging the site got lots of stuff wrong, smeared him and invaded his privacy when it wrote about the way he had sex with some young women.

In his ruling, US District Court Judge F. Dennis Saylor first had to determine whether Portnoy was a "public figure" with a higher bar to cross to prove libel. Saylor said Portnoy himself made the case that he is, noting that his own lawsuit referred to him both as "the well-known founder of Barstool Sports" and "one of Massachusetts’s most well-known entrepreneurs and media personalities," as well as somebody with "celebrity and notoriety."

And that means proving "actual malice," that not only did Insider post falsehoods, but that they did so deliberately, out of, well, malice - and that means more than just proving ill will, like, say, publishing articles about Portnoy's alleged love of rough activities to coincide with the quarterly earnings statements of the company that now actually owns Barstool Sports, or even just that the Insider reporter couldn't stand his guts. Did Insider publish stuff that was wrong with "reckless disregard for the truth?" No, Saylor wrote:

The complaint alleges that defendants knew prior to publishing their articles that the three women's accounts were either "fabricated,” "entirely fabricated,” or "pure fiction.” Plaintiff, however, does not dispute that he had sex with the women, or that he filmed them during sex. Nor does he dispute that one of the women told him that she injured her rib during one of their sexual encounters, and that she allegedly "boasted to [him] that he 'still holds [her] title for most aggressive sex.'” Thus, "the complaint . . . itself point[s] to undisputed facts that preclude [the Court] from inferring" that the women's accounts of violent, unenjoyable sexual encounters with plaintiff "would have seemed so implausible as to cast doubt" on defendants' belief that they were true.

But what about Insider painting Portnoy as a rapist? Saylor says Insider didn't say that.

Plaintiff cannot seek to establish actual malice by challenging statements that defendants did not publish. And as plaintiff himself concedes, Insider’s articles do not expressly accuse him of criminal sex assault. ...

Nor does the fact that the articles do not expressly accuse plaintiff of sexual assault itself give rise to an inference of actual malice. While it is true that "defamation can occur by innuendo as well as by explicit assertion" ... the articles do not dispute that the women acknowledged that the encounters were at least initially consensual, if ultimately unwelcome or distressing. ("Allison does not describe what happened to her as sexual assault but said she was still deeply disturbed by the experience."); ("'I always think back to it,’ she said, ‘like, Yes, it was technically consensual sex, but that was not the sex I consented to.'"); ("Four of them said the sex that was recorded started consensually but then turned violent and frightening beyond what they would have agreed to had they been asked.")).

However, even assuming that the articles imply that plaintiff sexually assaulted one or more of the women, the complaint nevertheless fails to plausibly plead facts alleging that defendants published the articles with a reckless disregard for the truth. The complaint does not allege that Insider's anonymous sources were fake, or that the articles misrepresented what the women told defendants. Furthermore, plaintiff 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, thus "undercut[ting] any inference of actual malice."

Also:

And while ... the complaint alleges that defendants knowingly relied on biased sources, Insider's articles make clear—and plaintiff does not deny—that defendants corroborated the women's accounts with photographs, text and social media messages, videos, medical reports, police documents, an Uber receipt, and statements from at least three friends who saw or spoke with the women soon after their interactions with plaintiff. Defendants' independent verification of the women's accounts thus further undercuts an inference of actual malice.

And Unsider didn't ignore "contrary" evidence, the judge continues, as he further delves into the complaint and Portnoy's sex life:

[T]he articles clearly disclose that the women met plaintiff for the express purpose of having sex, that one of the women had discussed her “rape fantasy” with plaintiff prior to having allegedly violent sex with him, that one woman who found his recording “odd and creepy” nevertheless chose to meet him again for sex, and that some of the women continued to communicate with plaintiff—sometimes in sexually explicit language—even after having allegedly unpleasant sex with him. Accordingly, the complaint does not plausibly allege that defendants intentionally ignored contrary evidence.

Saylor also rejected the privacy claim by the man who once posted a photo showing Tom Brady's son's penis.

Portnoy claimed that Insider violated his privacy by posting some "highly personal" messages exchanged between Portnoy and the women, under a Massachusetts law that bars disclosure of such messages when there's "no legitimate, countervailing interest" in publishing them. But Massachusetts courts have been lenient towards publishers in cases involving "legitimate public concern," and a public figure in the #metoo era fits that criterion, Saylor concluded.