Dave Portnoy’s Defamation Lawsuit vs. Insider Dismissed; Articles Accused Barstool Founder of ‘Violent and Humiliating’ Sexual Encounters

Photo by Cliff Hawkins/Getty Images

The defamation lawsuit that Barstool Sports President Dave Portnoy filed against Insider has been dismissed, ending a year-long saga of litigation over two articles that made sexual misconduct allegations regarding his relationships with multiple young women, and Portnoy’s own admissions in the complaint were a big part of why his case failed.

The dispute began with a Nov. 4, 2021 article by Insider’s Julia Black headlined “‘I was literally screaming in pain’: Young women say they met Barstool Sports founder Dave Portnoy for sex and it turned violent and humiliating.”

“Dave Portnoy makes no secret of the fact that he likes to have sex with young women, and to push the boundaries of what is considered socially acceptable,” wrote Black. In the article, she reported on accusations from multiple anonymous young women in their late teens and early twenties — all above the legal age of consent but half Portnoy’s age. These women said they first connected with Portnoy over social media, exchanging flirtatious private messages that soon led to the Barstool Sports founder arranging to meet them for sexual liaisons that they allege “turned into frightening and humiliating experiences that have taken a toll on their mental health.”

One woman identified by the pseudonym “Madison” in the article said that Portnoy had bought her a first-class plane ticket to visit him. After they had dinner, Madison said he pulled out his cell phone to film her without her permission and treated her as “just a human sex doll,” describing their encounter as “so rough I felt like I was being raped.”

“It hurt and I was literally screaming in pain,” she said, and he spit in her mouth and “choked me so hard I couldn’t breathe.”

Portnoy had denied the claims in the Insider article, calling it “100 percent false” with “not an ounce of credibility to it.”

A second Insider article followed on Feb. 3, 2022, bylined by Black and Melkorka Licea, with more women coming forward to accuse him of videotaping them without their consent during “frightening and humiliating” sexual encounters that were so rough, one woman said he broke one of her ribs, slapped her on the butt so hard it left red marks that “lasted for days,” and slapped her across the face “full force.”

Portnoy denied the new allegations and threatened to sue, claiming he would never settle the case and there was “no amount” of money they could pay to get him “off their backs,” vowing that he “won’t rest till I put these people out of business.”

He made good on his threat with a complaint against Insider, the two reporters Black and Licea, and Insider’s CEO Henry Blodget and editor-in-chief Nicholas Carlson, filed Feb. 7 in the federal district court in Massachusetts, but on Monday, Chief Judge F. Dennis Saylor IV granted the defendants’ motion to dismiss.

Saylor’s reasoning, described in the memorandum of law embedded below, was under a federal rule of civil procedure requiring complaints to state a claim upon which relief may be granted, agreeing with defendants’ arguments that Portnoy could not prove the statements in the two articles were false and that the statements were protected by the First Amendment.

Case law precedent on defamation is very clear that the burden is on plaintiffs to prove that the allegedly defamatory statements are false, wrote Saylor, and “subjective statements and statements of opinion are protected under the First Amendment as long as they do not present or imply the existence of facts which are capable of being proven true or false.”

Portnoy’s fame cut against him in this lawsuit; public figures must meet the higher burden of proving defamatory statements were made with “actual malice,” and the court held that his complaint “does not clear that high bar.” This same legal principle was the stumbling block for Sarah Palin’s defamation lawsuit against The New York Times earlier this year. Portnoy’s own complaint described him as “the well-known founder of Barstool Sports,” and “one of Massachusetts’s most well-known entrepreneurs and media personalities.”

Digging into the specific claims in the complaint, Saylor noted that Portnoy “does not dispute that he had sex with the women, or that he filmed them during sex…[n]or 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.’”

The evidence Insider reviewed to corroborate the women’s accusations — including “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 [Portnoy]” — constituted “independent verification” of their claims and “thus further undercuts an inference of actual malice,” wrote Saylor. Portnoy was not alleging that the articles’ anonymous sources were “fake” or that the articles “misrepresented” their claims, the judge added, and had admitted 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.”

“Accordingly, because the complaint fails to plausibly allege that any of the statements at issue were published with actual malice, the Court will grant the motion to dismiss the defamation claim,” Saylor concluded.

A secondary claim by Portnoy for invasion of privacy was also rejected by Saylor for failing to meet the requirements of Massachusetts law, citing case law finding that if a right to privacy existed, it “does not extend to matters that are a part of the public domain or to matters of public concern.”

The defendants argued that their reporting on “Portnoy’s troubling behavior towards much younger women” was “part of ‘the broader social context’ of the #MeToo movement.” Portnoy attempted to counter by arguing that because the women didn’t work for Barstool Sports or have any other “hierarchical relationship” with him, the allegations fell outside of the #MeToo movement.

Saylor found Portnoy’s argument an overly “narrow view of newsworthiness,” adding that “[i]ssues 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.”

Read the full opinion below:

Dismissal of David Portnoy vs. Insider, Inc. et al. by Sarah Rumpf on Scribd

—