Even as plaintiffs in defamation cases attack the actual malice standard, they often mistake what “actual malice” really means. A recent federal district court decision demonstrates how defendants can capitalize on those misconceptions to win an early dismissal.

In Portnoy v. Insider, Inc. et. al., David Portnoy, founder of the popular sports blog Barstool Sports, claimed he was defamed by two articles published online by Insider, Inc.  The articles reported on alleged sexual encounters between Portnoy and several anonymous young women. According to the articles, the women claimed that their encounters with Portnoy, which began consensually, had turned “violent and humiliating,” or that he had filmed them during sex without their consent.

Insider moved to dismiss Portnoy’s case and argued, in part, that he failed to plead that the allegedly defamatory statements in the articles were published with actual malice. As first articulated by the Supreme Court in New York Times Co. v. Sullivan, the First Amendment prohibits public officials or public figures from pursuing a claim for defamation unless they can prove a statement was made with “actual malice;” i.e., with knowledge that the statement was false or with reckless disregard of its falsity. Given his status as the well-known founder of Barstool Sports, the parties did not dispute that Portnoy was a public figure.

Portnoy argued that he could prove actual malice because the articles were published “in order to destroy his reputation and increase Insider’s viewership and subscription revenue.” But the court rejected this theory, and noted that “actual malice” is not malice in the ordinary sense – i.e., acting with “ill will” – but a subjective doubt about the truth of the statements at issue. Nor does a desire to increase profits constitute actual malice. Finally, the court rejected Portnoy’s argument that defendant knew the allegations were false because he had denied them, and held that denials “are so commonplace” that they cannot alone serve as evidence of actual malice.

Portnoy highlights several misconceptions about pleading actual malice, and confirms that courts will dismiss defamation claims early if defendants can bring those pitfalls to their attention.