The ‘McAfee’ Feud Highlights a Real Dilemma for Livestreamers

Man talking into mic
Prostock-Studio/Shutterstock Spaxiax/Shutterstock CNuisin/Shutterstock Linzi Silverman

Earlier this week, New York Jets quarterback Aaron Rodgers appeared on streaming sports talk favorite “The Pat McAfee Show” (an ESPN production that airs on cable and also streams on ESPN+ and YouTube). During the long segment, Rodgers – a “friend of the show” who makes recurring appearances – continued his ongoing war of words with late-night host Jimmy Kimmel. But Rodgers took the fight to the next level, suggesting that Kimmel’s name was likely to appear on the just-unsealed list of Jeffrey Epstein associates. Of course, being an associate of the infamous late sex offender has all sorts of negative connotations. Essentially, Rodgers was accusing Kimmel of being a pedophile, or at least engaging in unsavory sex-for-hire scenarios, without actually coming out and speaking those words. 

Kimmel personally responded on Twitter/X, denying ever having had any contact with Epstein or appearing on any list of his associates. To Rodgers specifically, he added: “Your reckless words put my family in danger. Keep it up and we will debate the facts further in court.”

Opening the following day’s show, McAfee personally addressed the controversy, and his response provided some genuine insights into the realities of producing three-plus hours of live daily content. McAfee notes that the off-the-cuff nature of his show teamed with the fact that the conversations turn to current events or political issues, sometimes makes controversy inevitable, but noted “when there are accusations made about people, that can lead to lawsuits.”

McAfee proceeds to discuss a legal tangle he had just last year with a different notable quarterback, Brett Favre. Last year, McAfee referred to Favre on the air as a “thief” who was “stealing from poor people in Mississippi,” referring to the state’s civil lawsuit relating to misspent welfare money. Favre filed a defamation suit against McAfee, but withdrew it after the host agreed to read an apology on the air, acknowledging that his statements “were based solely on public information and allegations.”

The bulk of McAfee’s response to Kimmel focuses on his argument that these were not sincere allegations against the late-night host, but simply jokes that went a bit too far. Rodgers was not claiming that Kimmel genuinely had associated with Jeffrey Epstein, the argument goes, but was simply engaging what McAfee categorizes under the legally ambiguous umbrella term “talking sh*t.” 

In McAfee’s view, the “good times” and “laughs” that his show occasionally generates wouldn’t be possible without this kind of freewheeling, “roll with the punches” atmosphere. To put up any kind of guardrails, even something like “try not to imply that a well-known person is a pedophile,” kills the vibe. In essence, McAfee argues that his show is about spontaneity, and compromising on that to protect the reputations of people whose names might get mentioned, risks losing the “magic” as well.

If you accept that, at times, the “McAfee Show” is indeed magical (and, dear reader, I leave this to you), it’s hard to argue with this logic. In fact, this entire scenario is playing out in the immediate aftermath of a different McAfee broadcast going viral online. During a New Year’s Day episode of “College GameDay,” host Rece Davis referred to Jalen Milroe’s apparel brand, LANK, which he referred to as an acronym for “Let A Naysayer Know.” McAfee jumped in, joking about how he’d thought a different, more offensive N-word was going to substitute for “Naysayer.” (He did not specify which N-word, of course.)

That’s a prime example of an off-the-cuff moment that couldn’t have been scripted, but which many fans nonetheless appreciated and found worthwhile enough to share. So, clearly, some degree of spontaneity matters in creating worthwhile content, and it’s probably not even possible for McAfee and his team to produce a tightly scripted, rigidly formatted 3-hour show every day utilizing any other process. 

It’s also intriguing to hear McAfee insist that he’s operating entirely without a plan or an outline, as he does in his pseudo-apology. There’s a wide gulf between scripting a full show and at least having some kind of outline based on where a segment is likely to travel. Recall, as well, that Rodgers is not a one-off random guest who just showed up at the studio ready to gab for a bit. He’s a regular, paid contributor to “The Pat McAfee Show” who makes frequent appearances (especially recently, when his schedule has not been overburdened by playing football).

Expecting him to, if not workshop what he plans to say with a staffer before the cameras roll, at least keep his commentary within roughly acceptable legal guidelines doesn’t feel like too big a request that will choke out all possibility of being spontaneously funny. After all, everyday creators face these same obstacles without the legal team at ESPN to take up the case should trouble arise. (Kimmel’s show airs on ABC, which, like ESPN, is owned by Disney. So we’re really looking at an intra-corporate showdown, if anything.) 

It might be possible for a Twitch or YouTube streamer to make the same “Hey, I was just joking around! That’s what we do here!” argument, but without the confidence that a well-known, powerful “Brett Favre type” will accept an apology and back down, that takes a high degree of confident assertiveness.

This isn’t purely theoretical, either. In 2022, rapper Cardi B. won a $4 million slander and invasion of privacy lawsuit against YouTuber Latasha Kebe (aka Tasha K) and her company, Kebe Studios LLC. Kebe had posted around 40 videos making a variety of unsubstantiated allegations against Cardi, including allegations that she was a former prostitute and cocaine user. 

Remember Carole Baskin, the exotic cat lover who “Tiger King” Joe Exotic tried to have murdered? Last year, she claimed on her YouTube channel that a former assistant, Anne McQueen, had stolen from her. When McQueen threatened to sue, Baskin sought legal protection against a defamation suit brought by McQueen, claiming that she’s a media company. In November, a Florida appeals court tossed out this defense. Media brand or not, Baskin is responsible for not posting slander on her channel.

As well, far-right activist Ammon Bundy found himself staring down an internet defamation suit last year. In July, he was ordered – along with a few associates – to pay $50 million in damages to St. Luke’s Regional Health, after accusing hospital staff of child trafficking on his YouTube channel without substantiation.

Of course, many of these allegations did not surface on nominal entertainment programs and therefore appeared to carry more weight in terms of believability (at least, for fans of the broadcast and its central personality). Still, concerns about potential slander or defamation claims absolutely have an everyday, chilling effect on what creators do and say. Being free-wheeling and funny is great, especially if you’re talking about sports or pop culture, but once it gets down to actual allegations against real people that listeners might take seriously, that probably demands at least one more level of care, research, and preparation.

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