Barstool Founder Dave Portnoy looks on in the second quarter during Game Three of the 2022 NBA Finals between the Boston Celtics and the Golden State Warriors at TD Garden on June 8, 2022 in Boston, Massachusetts. (Photo by Maddie Meyer/Getty Images)
Barstool Sports founder Dave Portnoy abandoned his effort to revive a defamation lawsuit against Insider for publishing allegations by women who accused him of sexual misconduct.
In November, a federal judge ruled that the First Amendment protected Insider’s right to publish two stories on the allegations. One ran under the headline “‘I was literally screaming in pain’: Young women say they met Barstool Sports founder Dave Portnoy for sex and it turned violent and humiliating,” on Nov. 4, 2021.
The follow-up story ran roughly one year ago under the headline “3 more women say Barstool Sports founder Dave Portnoy filmed them without asking during sex,” on Feb. 2, 2022. Insider posted an editor’s note standing by both of the articles.
Five days later, Portnoy filed a federal lawsuit in Massachusetts, claiming that Insider ran “hit pieces” that aimed to “cancel” him for “clickbait.”
“Insider’s defamatory scheme was well-planned and nearly a year in the making, and the defamatory stories would serve as the launch for Insider’s promotion on discounted premium subscriptions to its online publication, Business Insider,” the 29-page lawsuit alleged.
It also named Insider’s co-founder and CEO Henry Blodget, editor-in-chief Nicholas Carlson, and reporters Julia Black and Melkorka Licea as defendants.
On Nov. 7, 2022, Chief U.S. District Judge F. Dennis Saylor found that Portnoy failed to vault the “high bar” for establishing actual malice.
Portnoy had claimed that Insider employees had a vendetta against him, allegedly contacting Barstool advertisers shortly following publication of the first report and encouraging them to stop doing business with Portnoy.
“Such allegations of animosity or ill will, however, do not suffice to plead actual malice,” wrote Saylor, a George W. Bush appointee.
Enshrined in the watershed Supreme Court precedent New York Times v. Sullivan, actual malice requires public figures suing for defamation to establish someone knowingly ran false statements or acted with reckless disregard for the truth. It does not mean malicious intent.
The judge noted that Insider accurately reported what the women alleged.
“The complaint does not allege that Insider’s anonymous sources were fake, or that the articles misrepresented what the women told defendants,” Saylor wrote. “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.’”
Portnoy filed an appeal later that month before the First Circuit.
On Wednesday, the parties filed a stipulation of dismissal “with prejudice,” meaning that it cannot be refiled.
The Barstool Sports founder’s lawyer Andrew Brettler, who also represented Prince Andrew, did not immediately respond to an email requesting comment. Neither did counsel for Insider.
Carlson, the editor-in-chief named as one of the defendants, released a lengthy statement celebrating the development.
“We are not surprised,” Carlson wrote. “Our stories were accurate and fair.”
A note on Dave Portnoy dropping his lawsuit against Insider pic.twitter.com/RJc1zmGzt7
— Nich Carlson (@nichcarlson) February 2, 2023
Carlson also noted that Judge Saylor made sure to point out that the reporters 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 of the women.
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