The actor’s defamation suit against Barstool Sports founder Dave Portnoy over a clown t-shirt has been thrown out.
Michael Rapaport does not look like he has herpes in a clown t-shirt sold by Barstool Sports, a judge has ruled.
The actor is suing the website founder and former employer Dave Portnoy for both breach of contract and defamation — but the defamation part was thrown out on Monday.
Following a short stint as a podcast host for the sports site, the comedian was fired by Portnoy in February of 2018 for apparently insulting its own fans, and Rapaport made sure to throw some zingers as he left.
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Among the potshots he made at his former boss was a mocked up picture of them having sex. Portnoy responded in kind by selling a t-shirt on the website depicting Rapaport as a clown with a red nose and — most contentiously — a red spot on his chin.
In his lawsuit, Rapaport claimed Barstool Sports staff called him a “herpe having, race baiting, D-list actor” and “old crusty herpe”, and thus claimed the T-shirt insinuated he had a sexually transmitted disease.
Not so, said U.S. Southern District Court Judge Naomi Reice Buchwald.
“While hardly flattering to Rapaport, this image standing alone is not actionable because a reasonable audience would not understand the shirt to be asserting as a fact that Rapaport has herpes,” she wrote in a 64-page ruling published Monday, Newsweek reported.
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The breach of contract claims remain however, and will move to trial.
On Tuesday, Portnoy appeared to gloat over the decision, posting a clip to Twitter of a deposition he gave related to the case back in September 2019.
In the clip, he can be heard telling Rapaport’s lawyer, under questioning, that he created the t-shirt because he predicted Rapaport would do stuff like challenge him to a fight and make pictures of himself “having sex with me from behind.”
“In honor of Rappaport getting his ass kicked in court here is the time I put his lawyers in a mental torture chamber,” he tweeted. [sic]
“Just to clarify Rapaort [sic] had his idiot coworkers there who may be dumber than he is sitting across the table from me furiously scribbling notes to themselves. That’s who I gave the thumbs up to at the end.”
On Tuesday, a completely separate feud between Rapaport and NBA star Kevin Durant also blew up, after the former accused the latter of sending him “disgusting” messages and challenging him to fight:
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