Knievel v. Espn ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EVEL KNIEVEL; KRYSTAL KNIEVEL, 
Plaintiffs-Appellants, No. 02-36120
v.
 D.C. No.
CV 01-069 DWM
ESPN, a subsidiary of Walt
Disney, Inc., OPINION
Defendant-Appellee.

Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Argued and Submitted
May 5, 2004—Seattle, Washington
Filed January 4, 2005
Before: A. Wallace Tashima, Richard A. Paez, and
Carlos T. Bea, Circuit Judges.
Opinion by Judge Tashima;
Dissent by Judge Bea
27
30 KNIEVEL v. ESPN
COUNSEL
Wade J. Dahood, Knight, Dahood, Everett & Sievers, Ana-
conda, Montana, for the plaintiffs-appellants.
Nathan Siegel, ABC, Inc., Washington, D.C., for the
defendant-appellee.
OPINION
TASHIMA, Circuit Judge:
Famed motorcycle stuntman Evel Knievel and his wife
Krystal were photographed when they attended ESPN’s
Action Sports and Music Awards in 2001. The photograph
depicted Evel, who was wearing a motorcycle jacket and rose-
tinted sunglasses, with his right arm around Krystal and his
left arm around another young woman. ESPN published the
photograph on its “extreme sports” website with a caption that
read “Evel Knievel proves that you’re never too old to be a
pimp.” The Knievels brought suit against ESPN in state court,
contending that the photograph and caption were defamatory
because they accused Evel of soliciting prostitution and
KNIEVEL v. ESPN 31
implied that Krystal was a prostitute. ESPN removed the
action to federal court and moved to dismiss for failure to
state a claim pursuant to Fed. R. Civ. P. 12(b)(6). The court
granted ESPN’s motion on the ground that the photograph
and its caption were not defamatory as a matter of law. We
have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
I.
Evel’s career as a daredevil began in 1965, when he toured
the United States performing motorcycle stunts such as riding
through fire walls, jumping over live rattlesnakes and moun-
tain lions, and being towed at 200 miles an hour behind race
cars holding on to a parachute. As Evel’s reputation grew, so
did the danger of his stunts. In 1968, he spent 30 days in a
coma after an unsuccessful attempt to jump 151 feet across
the fountains in front of Caesar’s Palace in Las Vegas. Evel
continued to perform daring jumps on his motorcycle, setting
a world record in 1971 when he cleared 19 Dodge cars. In
1973, Evel stunned a crowd of 35,000 in the Los Angeles
Coliseum when he launched from a ski jump over 50 cars
stacked atop one another. In 1974, keeping his promise to a
fan, Evel risked his life on national television in an unsuccess-
ful attempt to clear the Snake River Canyon in Idaho on his
rocket powered “Skycycle.” His awe-inspiring attempt to
jump over 14 Greyhound buses in 1975 continues to hold the
ABC’s Wide World of Sports TV viewing audience record
with a whopping 52% of household share.1
Because of his distinguished career as a motorcycle dare-
devil, Evel Knievel has become one of the most recognized
names in sports throughout the world. The Smithsonian Insti-
tute has dedicated a portion of its museum to honor his
achievements, and at least seven books and four motion pic-
tures have been dedicated to his life. Evel enjoys an excellent
reputation in his community as a humanitarian and an advo-
1
See http://www.evelknievel.com (last visited July 20, 2004).
32 KNIEVEL v. ESPN
cate for the well-being of young people, and he has used his
fame and notoriety to promote anti-drug programs and motor-
cycle safety. He has also served as a spokesperson for several
prominent corporations, including clothing manufacturer
Tommy Hilfiger and tire makers Firestone and Bridgestone.
In April 2001, ESPN held its Action Sports and Music
Awards ceremony, at which celebrities in the fields of
extreme sports and popular music such as rap and heavy metal
converged. Well-known musicians Ben Harper and James
Hatfield were there, as were popular rappers Busta Rhymes
and LL Cool J. Evel, who is commonly thought of as the “fa-
ther of extreme sports,” was in attendance with Krystal. ESPN
arranged to have many of the celebrities in attendance photo-
graphed, including the Knievels. In one photograph, Evel is
flanked on his right by his wife and on his left by an unidenti-
fied young woman. He has one arm around each woman and
he wears rose-tinted sunglasses and a motorcycle jacket.
ESPN published the photograph of the Knievels on the
“Green Carpet Gallery” portion of its “EXPN.com” website.
The EXPN.com site features information and photographs
relating to “extreme” sports such as skateboarding, surfing,
and motorcycle racing. The “Green Carpet Gallery” portion of
the site documents the celebrities that attended ESPN’s
Action Sports and Music Awards. When a viewer clicks on
the Green Carpet Gallery icon, he or she is directed to a pho-
tograph of two men grasping hands, which is accompanied by
a caption that reads “Colin McKay and Cary Hart share the
love.” From there the viewer can click the “next” icon to
scroll through the remaining photographs sequentially. There
are 17 photographs in all, each featuring one or more celebri-
ties, and each accompanied by a caption. One shows a woman
in a black dress, and is accompanied by a caption that reads
“Tara Dakides lookin’ sexy, even though we all know she is
hardcore.” Another shows a man with sunglasses, and is
accompanied by the caption “Ben Hinkley rocks the shades so
the ladies can’t see him scoping.” The photograph of the
KNIEVEL v. ESPN 33
Knievels is the tenth in the sequence, and it cannot be viewed
without first viewing the nine photographs preceding it. Its
caption reads “Evel Knievel proves that you’re never too old
to be a pimp.”
The Knievels allege that in publishing the photograph and
caption on its website, ESPN intended to charge Evel with
“immoral and improper behavior” and bring him and his wife
into “public disgrace and scandal.” They allege that the photo-
graph and caption, which were posted on ESPN’s website for
approximately six days, “exposed [them] to hatred, contempt,
ridicule and obloquy that caused [them] to be shunned and
avoided and maliciously injured the reputation of Evel Knie-
vel.” And because of the photograph and its caption, they
allege, several of Evel’s former clients do not want him asso-
ciated with their product.
ESPN moved to dismiss the Knievels’ complaint pursuant
to Fed. R. Civ. P. 12(b)(6) on the ground that the First
Amendment precludes its liability for defamation because no
reasonable person would have interpreted the caption as an
allegation that Evel was a “pimp” in the criminal sense. The
district court agreed and granted the motion, reasoning that
“the website was obviously directed at a younger audience
and contained loose, figurative, slang language such that a
reasonable person would not believe ESPN was actually
accusing Plaintiffs of being involved in criminal activity.”
The Knievels moved to alter or amend the judgment pursuant
to Fed. R. Civ. P. 59(e), but the motion was denied.
The Knievels then noticed this appeal.2 They contend that
2
The Knievels’ notice of appeal does not reference the underlying order
dismissing their claims, but only the order denying their motion to alter
or amend the judgment. Ordinarily a notice of appeal must designate the
order that is being appealed. Fed. R. App. P. 3(c)(1)(B). We have permit-
ted parties to litigate an order not listed in the notice of appeal, however,
where (1) the intent to appeal that order can be “fairly inferred” and (2)
34 KNIEVEL v. ESPN
the Montana Constitution guarantees them a jury trial on their
defamation claim, and that the district court erred as a matter
of law when it dismissed the action.
II.
We review the district court’s grant of a motion to dismiss
de novo. Cervantes v. United States, 330 F.3d 1186, 1187 (9th
Cir. 2003). When ruling on a motion to dismiss, we accept all
factual allegations in the complaint as true and construe the
pleadings in the light most favorable to the nonmoving party.
Id.We review the district court’s interpretation of Montana
law de novo. Marcy v. Delta Airlines, 166 F.3d 1279, 1282
(9th Cir. 1999). In interpreting Montana law, we must follow
the decisions of Montana’s highest court. See Olympic Sports
Prods., Inc. v. Universal Athletic Sales Co., 760 F.2d 910,
912-13 (9th Cir. 1985). We review de novo the court’s ruling
that the statement was not defamatory as a matter of law.
Steam Press Holdings, Inc. v. Haw. Teamsters & Allied Work-
ers Union Local 996, 302 F.3d 998, 1005 (9th Cir. 2002).
III.
A. Montana Law Does Not Entitle the Knievels to a Jury
Trial
The Montana Constitution provides that “[i]n all suits and
prosecutions for libel or slander the truth thereof may be
the appellee was not prejudiced by the mistake. Lolli v. County of Orange,
351 F.3d 410, 414 (9th Cir. 2003). The Knievels made it clear in their
opening brief that they intended to appeal the order dismissing the action,
not merely the denial of their motion to alter or amend the judgment.
ESPN was not prejudiced by the Knievels’ failure to identify the order dis-
missing the action because the Knievels addressed the merits of their
claim in their opening brief, ESPN didn’t bring the oversight to our atten-
tion, and ESPN addressed the merits in its brief as well. See McCarthy v.
Mayo, 827 F.2d 1310, 1314 (9th Cir. 1987). Therefore, we interpret the
Knievels’ notice of appeal as an appeal of the underlying order.
KNIEVEL v. ESPN 35
given in evidence; and the jury, under the direction of the
court, shall determine the law and the facts.” Mont. Const. art.
II, § 7. The Knievels interpret this provision to mean that they
are entitled to a jury trial because they have a “special consti-
tutional right in a libel and slander case in Montana” that
guarantees them their “fair day in court.” But Montana’s high-
est court, which we are bound to follow, interprets the provi-
sion differently.
[1] The Montana Supreme Court has repeatedly affirmed
the ability of judges to dispose of defamation claims where
there are no issues of fact warranting a jury trial. Hale v. City
of Billings, 986 P.2d 413, 418 (Mont. 1999) (holding that
whether a statement is “capable of bearing a defamatory
meaning” is an issue that “a court can and should rightfully
determine upon a motion for summary judgment”); Small v.
McRae, 651 P.2d 982, 994-95 (Mont. 1982) (holding that it is
“clearly settled” that “where there is a failure to establish an
essential element of the [defamation] cause of action, the case
becomes one of law for the Court”); Griffin v. Opinion Publ’g
Co., 138 P.2d 580, 586 (Mont. 1943) (holding that notwith-
standing the ambiguous language of the Montana Constitution
“it is for the court and not the jury to pass upon demurrers to
the complaint”), overruled on other grounds by State v. Hel-
frich, 922 P.2d 1159, 1161 n.1 (Mont. 1996).
While our Constitution like that of Missouri, Colo-
rado, South Dakota and Wyoming provides that in
libel suits ‘the jury, under the direction of the court,
shall determine the law and the facts,’ yet the deci-
sions clearly show that the function of the court and
jury is not greatly different in the trial of libel from
what it is in other cases.
Griffin, 138 P.2d at 586. The Knievels’ argument that they are
entitled to a jury trial is untenable in light of the Montana
Supreme Court cases to the contrary.
36 KNIEVEL v. ESPN
The Knievels point to Hale’s pronouncement that “[u]nless
the evidence is so overwhelming that any other conclusion
would be unreasonable, the issue of whether the statements
were true or false is a determination for the jury alone to
make.” Hale, 986 P.2d at 417-18 (internal quotation marks
omitted). But that language does nothing more than point out
that where there is a disputed issue of fact as to the truth or
falsehood of a statement, that disputed issue of fact must be
submitted to the jury. It does not stand for the proposition that
questions of law or undisputed questions of fact must be sub-
mitted to a jury. Hale, like the cases before it, recognized that
courts can rule on whether a statement is capable of a defama-
tory meaning as a matter of law.
Even if the Montana Constitution did establish a rule that
defamation plaintiffs are entitled to a jury trial in state court,
that rule would not bind a federal court exercising its diversity
jurisdiction. Under the doctrine of Erie R.R. v. Tompkins, 304
U.S. 64 (1938), federal courts sitting in diversity must apply
the Federal Rules of Civil Procedure. Hanna v. Plumer, 380
U.S. 460, 470-71 (1965) (“The Erie rule has never been
invoked to void a Federal Rule [of Civil Procedure].”); see
also Herron v. S. Pac. Co., 283 U.S. 91, 94-95 (1931) (hold-
ing that a state law requiring the jury to decide the issue of
contributory negligence cannot interfere with authority of a
federal court to direct a verdict where there are no facts in dis-
pute). And as every trial lawyer knows, federal courts may
decide cases as a matter of law where the complaint fails to
allege facts sufficient to state a claim upon which relief could
be granted. See Fed. R. Civ. P. 12(b)(6).
B. The Photograph and Caption Were Not Defamatory
as a Matter of Law
In enforcing laws that impose liability for mere speech, a
right explicitly guaranteed to the people in the United States
Constitution, states tread perilously close to the limits of their
authority. Courts have acknowledged the tension between def-
KNIEVEL v. ESPN 37
amation claims and the First Amendment’s protection of
speech, and held that when reviewing state-law cases that
raise First Amendment issues, appellate courts must “make
sure that ‘the judgment does not constitute a forbidden intru-
sion on the field of free expression.’ ” Bose Corp. v. Consum-
ers Union, 466 U.S. 485, 499 (1984) (quoting New York
Times Co. v. Sullivan, 376 U.S. 254, 285 (1964)); see also
Underwager v. Channel 9 Australia, 69 F.3d 361, 366 (9th
Cir. 1995) (“Although defamation is primarily governed by
state law, the First Amendment safeguards for freedom of
speech and press limit state law.”).
[2] In order to survive ESPN’s motion to dismiss, the Knie-
vels must not only establish that the photograph and caption
about which they complain are “reasonably capable of sus-
taining a defamatory meaning,” Cochran v. NYP Holdings,
Inc., 58 F. Supp. 2d 1113, 1121 (C.D. Cal. 1998), aff’d and
reasoning adopted, 210 F.3d 1036, 1038 (9th Cir. 2000), they
must also show that they are not mere “comment within the
ambit of the First Amendment.” Id. We can resolve both ques-
tions as a matter of law. Id. at 1120; Dodds v. Am. Broad. Co.,
145 F.3d 1053, 1065-68 (9th Cir. 1998) (dismissing action for
failure to state a claim because statements were non-
actionable opinion); Dworkin v. Hustler Magazine, Inc., 668
F. Supp. 1408, 1415 (C.D. Cal. 1987) (“It is for the court to
decide [whether a statement is actionable defamation] in the
first instance as a matter of law.”), aff’d, 867 F.2d 1188,
1193-94 (9th Cir. 1989).
[3] When evaluating the threshold question of whether a
statement is reasonably capable of sustaining a defamatory
meaning, we must interpret that statement “from the stand-
point of the average reader, judging the statement not in isola-
tion, but within the context in which it is made.” Norse v.
Henry Holt & Co., 991 F.2d 563, 567 (9th Cir. 1993) (citation
omitted). In Norse, we held that a biographer’s statement that
plaintiff, poet Harold Norse, “thought of himself as ‘dark-
horse Norse,’ ignored and unpublished,” was not reasonably
38 KNIEVEL v. ESPN
capable of a defamatory meaning in the context in which it
appeared. Norse argued that the sentence implied that he was
not published at the time. We disagreed, holding that the
essence of the sentence was not that Norse was unpublished,
but rather that Norse felt snubbed by the literary community.
“In context,” we held, “the word ‘unpublished’ does not mean
literally that Norse had never published before 1963. Rather,
it reflects Norse’s own perception of himself as an artist who
was unfairly neglected and ignored, a poet who believed that
he was not as successful as he deserved to be in his publishing
efforts at that stage in his career.” Id.The same reasoning applies in this case. Although the word
“pimp” may be reasonably capable of a defamatory meaning
when read in isolation, we agree with the district court’s
assessment that “the term loses its meaning when considered
in the context presented here.” As discussed in more detail
herein, the term “pimp” as used on the EXPN.com website
was not intended as a criminal accusation, nor was it reason-
ably susceptible to such a literal interpretation. Ironically, it
was most likely intended as a compliment. But we need not
definitively resolve that issue here because even if the photo-
graph and caption are reasonably capable of a defamatory
meaning, they are not actionable under the First Amendment.
[4] The First Amendment protects “statements that cannot
‘reasonably [be] interpreted as stating actual facts’ about an
individual.” Milkovich v. Lorain Journal Co., 497 U.S. 1, 20
(1990) (quoting Hustler Magazine v. Falwell, 485 U.S. 46, 50
(1988)). Courts have extended First Amendment protection to
such statements in recognition of “the reality that exaggera-
tion and non-literal commentary have become an integral part
of social discourse.” Levinsky’s, Inc. v. Wal-Mart Stores, Inc.,
127 F.3d 122, 128 (1st Cir. 1997). By protecting speakers
whose statements cannot reasonably be interpreted as allega-
tions of fact, courts “provide[ ] assurance that public debate
will not suffer for lack of ‘imaginative expression’ or the ‘rhe-
torical hyperbole’ which has traditionally added much to the
KNIEVEL v. ESPN 39
discourse of our Nation.” Milkovich, 497 U.S. at 20 (quoting
Falwell, 485 U.S. at 53-55).
[5] When determining whether a statement can reasonably
be interpreted as a factual assertion, we must examine the “to-
tality of the circumstances in which it was made.” Under-
wager, 69 F.3d at 366.
First, we look at the statement in its broad context,
which includes the general tenor of the entire work,
the subject of the statements, the setting, and the for-
mat of the work. Next we turn to the specific context
and content of the statements, analyzing the extent of
figurative or hyperbolic language used and the rea-
sonable expectations of the audience in that particu-
lar situation. Finally, we inquire whether the
statement itself is sufficiently factual to be suscepti-
ble of being proved true or false.
Id. The context in which the statement appears is paramount
in our analysis, and in some cases it can be dispositive. See
Dworkin, 867 F.2d at 1193 (holding that courts must “exam-
ine the facts surrounding the publication, the context in which
the statements were made, and the nature of the language
used”); Koch v. Goldway, 817 F.2d 507, 509 (9th Cir. 1987)
(“Context does resolve the matter.”).
[6] Because the reasonable interpretation of a word can
change depending on the context in which it appears, not all
statements that could be interpreted in the abstract as criminal
accusations are defamatory. In Greenbelt Coop. Publ’g Ass’n
v. Bresler, 398 U.S. 6 (1970), newspaper articles reporting on
the contents of a public meeting regarding a pending develop-
ment permit stated that some people at the meeting character-
ized the developer’s negotiating position as “blackmail.” Id.
at 7. The developer recovered in state court for libel on the
ground that the articles accused him of the crime of black-
mail. The Supreme Court reversed, holding that the statement
40 KNIEVEL v. ESPN
was protected First Amendment speech because “[n]o reader
could have thought that either the speakers at the meetings or
the newspaper articles reporting their words were charging
[the developer] with the commission of a criminal offense.”
Id. at 14. On the contrary, it held, “even the most careless
reader must have perceived that the word was no more than
rhetorical hyperbole, a vigorous epithet used by those who
considered [the developer’s] negotiating position extremely
unreasonable.” Id.[7] A speaker’s use of “loose, figurative” language can also
determine whether his or her statement can reasonably be
interpreted as a factual allegation. In Standing Comm. on Dis-
cipline of the United States Dist. Court v. Yagman, 55 F.3d
1430 (9th Cir. 1995), we held that an attorney could not be
sanctioned for accusing a district judge of being “dishonest”
because the other terms the attorney used to describe the
judge — “ignorant,” “ill-tempered,” “buffoon,” “sub-standard
human,” and “right-wing fanatic” — made it clear that the
attorney intended only to signal his general contempt for the
judge, rather than to accuse him of corruption. Id. at 1440; see
also Old Dominion Branch No. 496, Nat’l Ass’n of Letter
Carriers v. Austin, 418 U.S. 264, 284 (1974) (holding that the
use of the word “traitor” could not be reasonably interpreted
as a representation of fact because it was used “in a loose, fig-
urative sense to demonstrate the union’s strong disagreement
with the views of those workers who oppose unionization”);
Cochran, 58 F. Supp. 2d at 1124-25 (holding that a statement
that suggested that defense attorney Johnnie Cochran lied and
exhibited unethical conduct was not actionable as a matter of
law because the statement appeared in an opinion column and
the author used “loose, figurative, and hyperbolic” speech
throughout the column). On the other hand, we held that Yag-
man could be sanctioned for accusing Judge Keller of being
“drunk on the bench” because he made that accusation on a
separate occasion and there was “nothing relating to the con-
text in which this statement was made that tends to negate the
KNIEVEL v. ESPN 41
literal meaning of the words he used.” Yagman, 55 F.3d at
1441.
1. Taking Into Account Material Not Alleged in the
Complaint
In evaluating the context in which the statement appeared,
we must take into account “all parts of the communication
that are ordinarily heard or read with it.” Restatement (Sec-
ond) of Torts § 563 cmt. d (1977). In doing so, we deviate
from the general rule that courts, when ruling on a motion to
dismiss, must disregard facts that are not alleged on the face
of the complaint or contained in documents attached to the
complaint. Hal Roach Studios, Inc. v. Richard Feiner & Co.,
896 F.2d 1542, 1555 n.19 (9th Cir. 1990). Our approach is
permissible under the “incorporation by reference” doctrine,
which permits us to take into account documents “whose con-
tents are alleged in a complaint and whose authenticity no
party questions, but which are not physically attached to the
[plaintiff’s] pleading.” In re Silicon Graphics Inc. Sec. Litig.,
183 F.3d 970, 986 (9th Cir. 2002) (quoting Branch v. Tunnell,
14 F.3d 449, 454 (9th Cir. 1994)) (alteration in original). We
have extended the “incorporation by reference” doctrine to
situations in which the plaintiff’s claim depends on the con-
tents of a document, the defendant attaches the document to
its motion to dismiss, and the parties do not dispute the
authenticity of the document, even though the plaintiff does
not explicitly allege the contents of that document in the com-
plaint. Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th Cir.
1998) (holding that the district court properly considered doc-
uments attached to a motion to dismiss that described the
terms of plaintiff’s group health insurance plan, where plain-
tiff alleged membership in the plan, his claims depended on
the conditions described in the documents, and plaintiff never
disputed their authenticity); see also Horsley v. Feldt, 304
F.3d 1125, 1135 (11th Cir. 2002) (taking into account news-
paper article containing allegedly defamatory statement under
the “incorporation by reference” doctrine where it was “cen-
42 KNIEVEL v. ESPN
tral” to plaintiff’s claim, defendant attached it to the motion
for judgment on the pleadings, and plaintiff did not contest its
authenticity). The rationale of the “incorporation by refer-
ence” doctrine applies with equal force to internet pages as it
does to printed material. Just as a reader must absorb a printed
statement in the context of the media in which it appears, a
computer user necessarily views web pages in the context of
the links through which the user accessed those pages.
The Knievels attached to their complaint only the photo-
graph and caption that they argue was defamatory, and they
do not allege or describe the contents of the surrounding
pages in their complaint. ESPN argued below, and on appeal,
that viewers accessing the website could not help but to see
at least some of the surrounding web pages in order to view
the photograph and caption that the Knievels allege to be
defamatory. ESPN attached copies of the pages surrounding
the Knievels photograph to its motion to dismiss and included
a CD-ROM containing a digital replica of the relevant por-
tions of the EXPN.com website in its supplemental excerpts
of record on appeal. The Knievels do not dispute ESPN’s con-
tention that a viewer accessing the Knievels photograph must
also access the surrounding pages on the EXPN.com website,
nor do they dispute the authenticity of the materials and CD-
ROM attached to ESPN’s motion to dismiss. When browsing
the CD-ROM, we found that in order to access the photo-
graph, one must first view, at minimum, the nine photographs
that precede it and the EXPN.com home page. Therefore, we
take into account the web pages attached to ESPN’s motion
to dismiss under the “incorporation by reference” doctrine.
2. The Use of “Loose, Figurative” Language
[8] Our first inquiry is into the “broad context” of the state-
ment, which includes “the general tenor of the entire work,
the subject of the statements, the setting, and the format of the
work.” Underwager, 69 F.3d at 366. The district court found,
and we agree, that the content of the EXPN.com main page
KNIEVEL v. ESPN 43
is lighthearted, jocular, and intended for a youthful audience.
It is equally clear that the subject matter of the page is not
merely extreme sports themselves, but the youth culture and
style associated with extreme sports. The page directs the
viewer to “[c]heck out what the rockstars and prom queens
were wearing,” and offers a “behind the scenes look at all the
cool kids, EXPN-style.” Most importantly, however, we
observe that the page features slang phrases such as “[d]udes
rollin’ deep”3 and “[k]ickin’ it with much flavor,”4 neither of
which is susceptible to a literal interpretation, and neither of
which one would expect to hear uttered by anyone but a teen-
ager or young adult. A reasonable viewer exposed to the main
page would expect to find precisely that type of youthful,
non-literal language on the rest of the site.
[9] Next, we examine the “specific context and content of
the statements, analyzing the extent of figurative or hyper-
bolic language used and the reasonable expectations of the
audience in that particular situation.” Underwager, 69 F.3d at
366. Again, the overwhelming presence of slang and non-
literal language guides our inquiry. The web pages immedi-
ately preceding and following the Knievel photo use slang
words such as “hardcore”5 and “scoping,”6 and slang phrases
3
“Rollin’ deep” means “[d]riving along in a cool car.” http://
www.voxcommunications.com/03rollindeep.htm (visited April 9, 2004).
4
“Kick it” is a phrase used in rap music to mean “to give to (someone)
or let (someone) have it.” 2 J.E. Lighter, Random House Historical Dictio-
nary of American Slang 349 (Random House 1997) (“Random House Vol.
II”). “Kick flavor” means “to perform; to be entertaining.” Id. at 774.
5
“Hardcore” can have multiple meanings, depending on the context.
Compare Random House Vol. II, at 31 (defining term to mean “unswerv-
ingly dedicated”); with http://www.slangsite.com/slang/H.html (visited
April 16, 2004) (noting that the word “hardcore” can be “1. Used to
describe anything [that is] cool or liable to hurt you 2. Used to describe
a person that is into something more than everyone else, usually in a tough
sense[, or] 3. Referring to music of the ‘hardcore’ genre”).
6
To “scope” is to evaluate a member of the opposite sex visually. Rich-
ard A. Spears, Ph.D., NTC’s Dictionary of American Slang and Colloquial
Expressions 333 (NTC Publishing Group 2d ed. 1995).
44 KNIEVEL v. ESPN
such as “throwing down a pose,” “put a few back,” and “hot-
tie of the year,”7 none of which is intended to be interpreted
literally, if indeed they have a literal meaning at all. We think
that any reasonable viewer would have interpreted the word
“pimp” in the same loose, figurative sense as well.8 See Yag-
man, 55 F.3d at 1440.
[10] But even if a viewer had interpreted the word “pimp”
literally, he or she would have certainly interpreted the photo-
graph and caption, in the context in which they were pub-
lished, as an attempt at humor. See Hustler Magazine Inc.,
485 U.S. at 49 (holding that farcical interview published in
pornographic magazine in which minister admits to a
“drunken incestuous rendezvous” with his mother in an out-
house was not actionable because it “could not ‘reasonably be
understood as describing actual facts . . . or actual events in
which [the minister] participated’ ”); Polygram Records, Inc.
v. Superior Court, 216 Cal. Rptr. 252, 257 (Ct. App. 1985)
(holding that an “obvious joke, told during an obvious com-
edy performance,” was not defamatory as a matter of law).
The “Green Carpet Gallery” pokes fun at many of the celebri-
ties it portrays. One photograph features two women smiling,
and is accompanied by the caption “Shannon Dunn and Les-
lee Olson make it look easy to be cheesy.” Another depicts a
man taking a step toward the camera, and is accompanied by
the caption “Todd Richards tells the camera man to step off
7
The term “hottie” refers to “an attractive or sexually promiscuous per-
son of the opposite sex, usually a woman.” Random House Vol. II, at 185.
8
“Pimp” has traditionally meant a man in charge of prostitutes. Web-
ster’s New World Dictionary 1025 (2d ed. 1986) (defining “pimp” as “a
man who is an agent for a prostitute or prostitutes and lives off their earn-
ings.”). But “[t]oday it’s a very ambiguous term, used as either a compli-
ment or an insult towards a male. In its positive form, it means that the
person is ‘cool.’ In its negative form, it insults their attitudes, clothing, or
general behavior.” http://www.ocf.berkeley.edu/~wrader/slang/p.html
(visited April 9, 2004); see also http://www.slangsite.com/slang/P.html
(visited April 16, 2004) (noting that the term “pimp” can also be used
“when complimenting a person on their mastery of the subject matter”).
KNIEVEL v. ESPN 45
his lady.” Just as no reasonable reader would interpret those
captions as allegations of fact, no reasonable reader would
interpret the photograph of the Knievels as a serious allega-
tion of criminal wrongdoing.
[11] We acknowledge, like the district court did, that taken
in isolation and given a literal interpretation, ESPN’s sugges-
tion that Evel is a pimp is “sufficiently factual to be suscepti-
ble of being proved true or false.” See Underwager, 69 F.3d
at 366. But we assess the meaning of the word in the context
in which it was used. Because the caption cannot reasonably
be interpreted literally in this context, the fact that its literal
interpretation could be proven true or false is immaterial.
[12] The Knievels correctly point out that the fact that a
statement is an attempt at humor does not immunize the
speaker against liability for defamation. See Polygram, 216
Cal. Rptr. at 260 (holding that “the jocular intent of the pub-
lisher will not relieve him from liability if it is reasonable to
not understand the utterance as a joke”) (quoting Arno v.
Stewart, 54 Cal. Rptr. 392, 397 (Ct. App. 1966)). They argue
that notwithstanding ESPN’s attempt at humor, the word
“pimp” is by its very nature always an insult in a “proper law-
abiding society.”
The writer of this appellate brief graduated from a
pool hall he attended every day during his high
school years and he most certainly did not lead a
sheltered life across the tracks on the north side of
his city. “Pimp” was an insult then and always has
been in a proper law-abiding society.
But that argument, based entirely on the anecdotal childhood
experience of the Knievels’ lawyer, utterly fails to address the
context in which the word appeared, and context can be dis-
positive as to whether or not a statement is actionable under
the First Amendment. See Koch, 817 F.2d at 509 (“the context
of a statement may control whether words were understood in
46 KNIEVEL v. ESPN
a defamatory sense”). Read in the context of the satirical, ris-
que, and sophomoric slang found on the rest of the site, the
word “pimp” cannot be reasonably interpreted as a criminal
accusation.
IV.
For the foregoing reasons, we AFFIRM the judgment of the
district court.
BEA, Circuit Judge, dissenting:
Shakespeare’s Iago said it best:
Good name in man and woman, dear my lord,
Is the immediate jewel of their souls.
Who steals my purse steals trash;
‘Tis something, nothing;
‘Twas mine, ‘tis his, and has been slave to thou-
sands;
But he that filches from me my good name
Robs me of that which not enriches him,1
And makes me poor indeed.
William Shakespeare, Othello, Act III, scene iii (1604).
With considerable less lilt than Iago, but with perhaps the
same desire to poison the mind not of a Moor—but of
millions—defendant ESPN wrote below a photograph of
Knievel, his attractive wife and a younger woman: “Evel
Knievel proves you are never too old to be a pimp.”
In a classic example of ipse dixit, the Majority here con-
1
Except in this case, where it did apparently enrich ESPN insofar as
ESPN received free publicity at the expense of Knievel.
KNIEVEL v. ESPN 47
cludes that no reasonable person could view that photo of
Evel and Krystal Knievel, and the unidentified young woman,
captioned with the phrase quoted, and believe a longtime
daredevil now seeks money by living less on motorcycles and
more off of women. Because I believe that a reasonable per-
son could view this photo and its caption as defamatory of the
Knievels, I respectfully dissent.
I
A. Defamation, Constitutional Limitations and Pleading
Requirements
To make out a case for defamation under Montana law,2 a
plaintiff must prove: “(1) that the published material was
false; (2) that defendants are chargeable with fault in the pub-
lication; (3) that actual injury to [plaintiff] ensued for which
he may recover his actual damages; and (4) [ ] that the publi-
cation was made by defendants with knowledge of its falsity
or in reckless disregard for the truth or falsities thereof.” Mad-
ison v. Yunker, 180 Mont. 54, 67, 589 P.2d 126, 132 (1978).
Courts have held that, to comport with the First Amend-
ment, only statements that can “reasonably be interpreted to
state actual facts about an individual” are capable of defama-
tory meaning and are therefore actionable. Milkovich v.
Lorain Journal Co., 497 U.S. 1, 20 (1990) (internal quotation
marks and citations omitted); see also Cochran v. New York
Post, 58 F. Supp. 2d 1113, 1121 (C.D. Cal. 1998) (noting that
“the threshold question is whether a reasonable fact finder
could conclude that the statement is sufficiently factual to be
susceptible of being proved true or false”).
A court may properly determine “whether a statement is
fairly susceptible of a defamatory meaning when presented
2
I agree with the majority that diversity jurisdiction exists. 28 U.S.C.
§ 1332. See Majority Op. at III.A.
48 KNIEVEL v. ESPN
with a motion to dismiss.” Cochran, 58 F. Supp. 2d at 1120.
In general, however, a complaint should not be dismissed for
failure to state a claim unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim
which would entitle him to relief.” Conley v. Gibson, 355
U.S. 41, 45-46 (1957) (emphasis added). Moreover, the court
must read the complaint generously and draw all reasonable
inferences in favor of the plaintiff, accepting the complaint’s
allegations as true. See id. at 46.
Accordingly, a court’s power at the pleading stage to hold
that a statement is not defamatory as a matter of law is lim-
ited. “It is only when the court can say that the publication is
not reasonably capable of any defamatory meaning and can-
not be reasonably understood in any defamatory sense that it
can rule as a matter of law, that it was not libelous.” McBride
v. Merrell Dow & Pharmaceuticals Inc., 717 F.2d 1460, 1465
(D.C. Cir. 1983) (emphasis added). See also Condit v.
National Enquirer, Inc., 248 F. Supp. 2d 945, 964 (E.D. Cal.
2002) (“[a]ssuming, arguendo, there are non-defamatory
readings of the [allegedly defamatory] word ‘attacks’[ ], all
that the law requires is that the headline is reasonably suscep-
tible to one defamatory meaning”) (emphasis added); Kaelin
v. Globe Communications Corp, 162 F.3d 1036, 1040 (9th
Cir. 1998) (“[s]o long as the publication is reasonably suscep-
tible of a defamatory meaning, a factual question for the jury
exists”) (emphasis added).
Here, the Knievels’ complaint alleges general and special
damages — including an allegation that plaintiff was dropped
by former clients who have seen the photograph and caption.
See Knievel Complaint ¶ 6, p. 7. Accordingly, the Knievels
argue that the photo and caption here are “capable of defama-
tory meaning” and is therefore actionable.
B. Ninth Circuit Three-Part Test
Under Ninth Circuit caselaw, to determine whether a state-
ment is capable of defamatory meaning, we use the following
three-part test:
KNIEVEL v. ESPN 49
[t]o determine whether a statement implies a factual
assertion, we examine the totality of the circum-
stances in which it was made. First, we look at the
statement in its broad context, which includes the
general tenor of the work, the subject of the state-
ments, the setting, and the format of the work. Next
we turn to the specific context and content of the
statements, analyzing the extent of figurative or
hyperbolic language used and the reasonable expec-
tations of the audience in that particular situation.
Finally, we inquire whether the statement itself is
sufficiently factual to be susceptible of being proved
true or false.
Underwager, 69 F.3d at 366 (following Partington, 56 F.3d
at 1153 and Unelko, 912 F.2d at 1051).
Prior to application of the three-part test, the preliminary
question is “whether a reasonable factfinder could conclude
that the contested statement implies an assertion of objective
fact.” Unelko Corp. v. Rooney, 912 F.2d 1049 (9th Cir. 1990)
(emphasis added); see also Norse v. Henry Holt & Co., 991
F.2d 563, 567 (9th Cir. 1993) (“[t]o determine whether the
statement has a defamatory meaning, [courts] interpret it from
the standpoint of the average reader”).
The “average reader” is a “reasonable factfinder,”
Milkovich v. Lorain Journal Co., 497 U.S. 1, 21 (1990)
(“[t]he dispositive question in the present case then becomes
whether a reasonable factfinder could conclude that the state-
ments . . . imply an assertion that petitioner Milkovich per-
jured himself”). Put another way, the “average reader” is a
“reasonable juror.” Cochran, 58 F. Supp. 2d at 1121 (state-
ment is defamatory if “a reasonable juror could conclude that
the allegedly defamatory implications constituted provably
false assertions of fact”) (emphasis added).
The issue is not “whether the court regards the language as
libelous, but whether it is reasonably susceptible of such a
50 KNIEVEL v. ESPN
construction.” Kelly v. Schmidberger, 806 F.2d 44, 46 (2d Cir.
1986) (emphasis added). Indeed, “[t]his court may not . . .
interfere with the jury’s role by treating as nondefamatory a
statement that a reasonable juror may fairly read in context as
defamatory.” Sharon v. Time, Inc., 575 F. Supp. 1162, 1165
(S.D.N.Y. 1983).
In determining whether the “reasonable juror” would find
a particular statement defamatory, courts have held that
“words charged to be defamatory are to be taken in their natu-
ral meaning and that the courts will not strain to interpret
them in their mildest and most inoffensive sense to hold them
nonlibelous.” Mencher v. Chesley, 297 N.Y. 94, 99 (1947);
see also Rodriguez v. Panayiotou, 314 F.3d 979, 986 (9th Cir.
2002) (a court must “place itself in the position of the . . .
reader, and determine the sense of meaning of the statement
according to its natural and popular construction” and the
“natural and probable effect [it would have] upon the mind of
the average reader”).
Moreover, if the language at issue is “capable of both a
defamatory and a nondefamatory meaning, there exists a
question of fact for the jury.” Dunn v. Gannett New York
Newspapers, Inc., 833 F.2d 446, 449 (3d Cir. 1987). See also
Jewell v. NYP Holdings, Inc., 23 F. Supp. 2d 348, 363
(S.D.N.Y. 1998) (“[i]f the statement complained of is suscep-
tible of more than one meaning, at least one of which is
defamatory, the claim must go to the jury”).
For example, applying the three-part test in Underwager,
we have held that a reasonable factfinder could conclude that
a statement made in the context of a satirical television pro-
gram implied an assertion of objective fact. In Unelko Corp.
v. Rooney, a manufacturer of rain-repellant windshield glass
coating “Rain-X” brought a defamation action against televi-
sion personality who stated on television program that the
product “didn’t work.” The defendant, Andy Rooney, moved
for summary judgment. The district court granted summary
KNIEVEL v. ESPN 51
judgment on the ground that none of Rooney’s statements
were capable of defamatory meaning. We reversed and held
that “the tenor of Rooney’s segment notwithstanding, the
statement ‘it didn’t work’ could reasonably be viewed as
implying an assertion of objective fact.” In so holding, this
court reasoned that:
[t]he tenor of Rooney’s segment notwithstanding,
the statement ‘it didn’t work’ could reasonably be
viewed as implying an assertion of objective fact.
The humorous and satirical nature of Rooney’s seg-
ment of ‘60 minutes’ does not negate the impression
that he was making a factual assertion about [the
product’s] performance when applied to his vehi-
cles. Although part of a humorous report, the state-
ment ‘it didn’t work’ was presented as fact and
understood as fact by several viewers who wrote to
CBS.3 The humor in Rooney’s statement about [the
product] is derived not from hyperbole or exaggera-
tion, but from the fact that his report of the product’s
effectiveness was the antithesis of what its inventor
presumably desired. Rooney’s negative evaluation of
[the product’s] capabilities differs significantly from
his personal assessment of the other items he
received in the mail; thus it receives no protection
based on the overall tenor of his ‘60 minutes’ seg-
ment.
Unelko, 912 F.2d at 1054 (emphasis added).
3
Here, the Knievels allege several clients who saw defendants’ web site,
believed the slur and cancelled Mr. Knievel’s contracts. See Knievel Com-
plaint at ¶ 6, p. 7.
52 KNIEVEL v. ESPN
II
A. Application of the Test to the Photo and Caption
Here, while the Majority correctly states the Ninth Circuit’s
three-part test, it incorrectly applies the test to the properly
pleaded facts in the present complaint.
1. First Prong: Broad Context
Under Underwager, the court first looks at the broad con-
text in which the statement appears: “the general tenor of the
work, the subject of the statements, the setting, and the format
of the work.” Underwager, 69 F.3d at 366.
The “broad context” here is correctly stated: the website on
which the photo and caption at issue appear, EXPN.com, and
the specific photo gallery (termed the “Green Carpet Gal-
lery”) with the caption “EXPN style.” See Majority Op. at
III.B.2. Here, the Majority concludes that when viewed in the
broad context of the website on which the photo and caption
at issue appear, the statement is not reasonably susceptible of
defamatory meaning. See Majority Op. at III.B.2.
To determine whether a statement is defamatory, courts
should first look at the publication in which the statement
appears. For example, in Falwell v. Flynt, 805 F.2d 484, 484
(4th Cir. 1986), minister Jerry Falwell sued Larry Flynt, pro-
prietor of Hustler Magazine, for libel, invasion of privacy and
intentional infliction of emotional distress as a result of the
magazine’s running an advertisement depicting Falwell hav-
ing sex with his mother in an outhouse. At the close of the
evidence, the court dismissed plaintiff’s claim for invasion of
privacy. The jury rendered a verdict for the defendants on the
libel claim, on the ground that “no reasonable man would
believe that the parody was describing actual facts about Fal-
well.” Falwell, 797 F.2d 1270, 1273 (4th Cir. 1986), over-
ruled on other grounds, Hustler Magazine v. Falwell, 485
KNIEVEL v. ESPN 53
U.S. 46 (1988). There were several grounds upon which the
jury could have so concluded. For example: (1) the ad
appeared in a satirical pornographic magazine; (2) the ad was
inherently unbelievable insofar as Falwell was a religious
minister; and (3) at the bottom of the page is a disclaimer
which states: “Ad parody — not to be taken seriously” and the
parody is listed in the table of contents as “Fiction; Ad and
Personality Parody.” Id. at 1272 (emphasis added).
Unlike the ad parody published in Hustler magazine in the
Falwell case, here the EXPN website is not an overtly non-
factual, satirical publication,4 nor does ESPN contend that it
is. Here, there was nothing to suggest satire. ESPN was not
holding up the “vices” of anyone to “ridicule or contempt,”
the function of satire. Second, it is not inherently unbelievable
that a daredevil attract, and perhaps exploit, women. Last,
there has not been a semblance of a disclaimer, then or now.
Second, in analyzing the broad context in which the photo
and caption appear, the Majority’s analysis of the “broad con-
text” was erroneously narrowed by its acceptance of defen-
dant’s argument that to determine “broad context” all that
matters is to whom the publication is targeted. The district
court erroneously concluded that:
[the] language used [in the caption] make[s] it obvi-
ous that the target audience is teenagers and young
adults who are likely to use many of the terms on the
website in everyday conversation” and “[t]he web-
site was directed at a younger audience.5
4
See also Dworkin v. Hustler Magazine, Inc., 867 F.2d 1188, 1193 (9th
Cir. 1989) (“the appearance of the language in a magazine known for its
pornographic content robs the statements of defamatory meaning”) (inter-
nal citations omitted).
5
There is no evidence in the record to support the district court’s conclu-
sion that the targeted audience is likely to use many of the terms in the
website in everyday conversation. Nor can judicial notice be taken, had it
54 KNIEVEL v. ESPN
Knievel v. ESPN, Inc., 223 F.Supp. 2d 1173, 1180-1181 (D.
Mont. 2002). The Majority erroneously follows suit. See
Majority Op. at III.B.2 (“[t]he content of the EXPN.com main
page is lighthearted, jocular, and intended for a youthful audi-
ence”).
Since the EXPN.com event and website are targeted at the
hip, young and irreverent who revel in slang and do not take
statements “seriously,” the Majority reasons “no harm, no
foul.” However, the case law does not allow a court to judge
whether a statement is defamatory by asking who was
intended to read or hear it. The true test is “who did read or
hear it.” The general law of defamation is that a publisher is
liable for the unintended results of his publication. See
Tomaso v. Pan American, 235 Cal. Rptr. 292 (1987). More-
over, as even the Majority acknowledges, the jocular intent of
the speaker does not insulate him from liability. See Polygram
Records, Inc. v. Superior Court, 216 Cal. Rptr. 252, 257 (Ct.
App. 1985) (“jocular intent of the publisher will not relieve
him from liability if it is reasonable not to understand the
been requested (which it was not) that youngsters call each other “pimps”
in a jocular and light-hearted manner, rather than to provoke street corner
fights. But even if we were to accept the stereotype of youth the Majority
shares with the district court, neither consider a stereotype of other possi-
ble viewers: the more aged, the adolescents brought up in traditional or
religious families, where modesty and decency are core values; the per-
sons active in gender equity activities who greatly resent the power
inequality which exists between pimps and prostitutes. One could go on.
The point is the district court and the Majority have closed the door to
consideration of the audience that makes up the “reasonable person” stan-
dard by which to judge the credibility of the statement, after positing a sin-
gle stereotype: the “trash-talking” adolescent the alleged defamer claims
to have targeted. Somewhat inconsistently, the Majority nevertheless
inveighs against the anecdotal evidence offered by Knievel’s attorney
regarding the definition of the term “pimp.” See Majority Op. at III.B.2.
The function of the court at this pleading stage is not to choose between
the versions to find what is credible; it is to determine whether plaintiffs’
submission is conceivably credible.
KNIEVEL v. ESPN 55
utterance as a joke”); see also Rodriguez v. Panayiotou, 314
F.3d 979, 987 (9th Cir. 2002) (rejecting the argument that
allegedly “humorous” language was protected where “the col-
orful and humorous language [defendant] used [ ] did not
negate the impression that [defendant] was seriously main-
taining [plaintiff] committed [the act]”).
On this issue, the Majority’s focus of claimed “broad con-
text” is, quite simply, not broad enough. One should include
not only the audience ESPN claims, and the court accepts, as
the one targeted. What about those dowdy corporate bour-
geois who are Knievel’s clients and who allegedly have aban-
doned him because of the photograph and caption? Put
another way, one cannot judge the liability of a defamer by
the composition of what he claims is his targeted audience.
One also has to consider not only who was targeted, but who
was hit.
2. Second Prong: Specific Context
We next analyze the specific context in which the statement
was made, including “the extent of figurative or hyperbolic
language used and the reasonable expectations of the audience
in that particular situation.” Underwager, 69 F.3d at 366.
In analyzing the specific context in which the defamatory
statement appeared, courts will examine the type of language
used both in the allegedly defamatory statement, and in
nearby statements. This usually involves examination and
comparison of specific phrases and words. See Cochran, 58
F. Supp. 2d at 1123-25; Underwager v. Channel 9 Australia,
69 F.3d 361, 367 (9th Cir. 1995) (considering examples of
phrases broadcast in TV program to determine that negative
statements about psychologist were opinion not fact); Stand-
ing Comm. on Discipline of U.S.D.C. for the C.D. Cal. v. Yag-
man, 55 F.3d 1430, 1440 (9th Cir. 1995) (considering specific
context of “string of colorful adjectives” to determine that
word “dishonest” was not factual assertion); Horsley v.
56 KNIEVEL v. ESPN
Rivera, 292 F.3d 695, 702 (11th Cir. 2002) (examining spe-
cific context by comparing defendant’s statements with plain-
tiff’s, where allegedly defamatory statement was made during
television talk show appearance).
We have recognized that “[e]ven in contexts in which the
general tenor of the work suggests that the author is express-
ing personal opinions, it is possible that a particular statement
of opinion may imply a false assertion of objective fact and
therefore fall outside the scope of the First Amendment’s pro-
tection.” Partington v. Bugliosi, 56 F.3d 1147, 1155 (9th Cir.
1995); Standing Committee on Discipline of the United States
District Court for the Central District of California v. Yag-
man, 55 F.3d 1430 (9th Cir. 1995) (per Kozinksi, J.).
Here, the Majority concludes that when viewed in the spe-
cific context of a photo gallery (the “Green Carpet Gallery”)
in which there were other photos and captions that included
so-called “jocular phrases,” the statement about Knievel was
merely “loose, figurative and hyperbolic” and therefore not
actionable. The Majority concludes:
[t]he overwhelming presence of slang and non-literal
language guides our inquiry. The web pages immedi-
ately preceding and following the Knievel photo use
slang words such as “hardcore” and “scoping” and
slang phrases such as “throwing down a pose,” “put
a few back” and “hottie of the year,” none of which
were intended to be interpreted literally . . . .
Majority Op. at III.B.2.
Accordingly, the Majority concludes “[w]e think that any
reasonable viewer would have interpreted the word ‘pimp’ in
the same loose, figurative sense as well.” Majority Op. at
III.B.2. In reaching this dubious conclusion, the court articu-
lates two principle rationales: (1) “pimp” has a “slang” mean-
ing as well as a common meaning; thus, the slang meaning
KNIEVEL v. ESPN 57
excludes the common meaning; and (2) no reasonable person
could view the photo and caption and believe that Knievel
was a pimp and the women with him were whores. Both are
incorrect.
a. Slang v. Dictionary Definition of Term “Pimp”
The Majority concludes that the definition of the word
assigned by Plaintiffs is not the only definition and therefore
that the term is not capable of defamatory meaning. See
Majority Op. at III.B.2. Rather, the Majority reasons, in slang
commonly used today, calling someone a pimp is not neces-
sarily an insult and can be a compliment. See Majority Op. at
III.B.2. & n. 8 (“[t]oday [pimp is] a very ambiguous term,
used either as a compliment or an insult towards a male. In
its positive form, it means that the person is ‘cool.’ In its neg-
ative form, it insults their attitudes, clothing, or general
behavior”).
This analysis is a classic example of circular reasoning. To
conclude that the slang definition is the correct reference
point is to decide the issue. Not so fast. Even were the hip
usage—a sharp-dressing dude—widespread, even ESPN does
not claim such meaning is unanimous amongst “average per-
sons.” Norse v. Holt & Co., 991 F.2d at 567. That is as it
should be, since “pimp’s” pejorative meaning made it into
Webster’s Collegiate Dictionary, but not Appellees’ hip offer-
ing nor, with respect, the Majority’s application of the term.6
6
According to Webster’s Collegiate Dictionary (Tenth Edition), “pimp”
is defined as: “Pimp. n [origin unknown] (1600): a man who solicits cli-
ents for a prostitute.” See also Oxford English Dictionary (Second Edi-
tion): “Subject [Origin obscure] a. One who provides means and
opportunity for unlawful sexual intercourse; a pander, procurer.” Web-
ster’s New International (Second Edition): “n. 1. A procurer, pander.”
American Heritage Dictionary of the English Language (Third Edition):
“Pimp, n. One who finds customers for a prostitute; a procurer.” “Pimp,
n. a go-between in illicit sexual affairs; especially, a prostitute’s agent; a
pander.”
58 KNIEVEL v. ESPN
As noted above, courts can look at any reasonable construc-
tion of a word to determine whether its use was defamatory.
See Flowers v. Carville, 310 F.3d 1118, 1127-28 (9th Cir.
2002) (Kozinski, J.). For example, in Flowers, the court held
that a statement by a presidential candidate’s campaign aide
that plaintiff had “doctored” documents was capable of
defamatory meaning where a dictionary definition provided
that “doctor” is a crime. The court reasoned:
[d]efendants argue that “doctor” can also be used in
a neutral sense; Webster’s does define it alternatively
as “to adapt or modify for a desired end by alteration
or special treatment,” as in “[doctored] the play by
tightening its whole structure and abridging the last
act.” Id. We doubt, though, that anyone would
understand the statement in this sense — just as we
doubt that anyone would assume Flowers “doctored”
the tapes by nursing them back to health. At the very
least, it isn’t the only reasonable construction; if a
statement is “susceptible of different constructions,
one of which is defamatory, resolution of the
ambiguity is a question of fact for the jury.”
Flowers, 310 F.3d at 1127-28 (internal citations omitted). All
the more here. In Flowers, a non-defamatory meaning of
“doctor” had made its way into Webster’s. A non-defamatory
meaning—indeed any other meaning—of “pimp” has yet to
do so. Even so, the use of allegedly “slang” language does not
negate the fact that the statement is susceptible to different
constructions — both of which are reasonable.
Indeed, in a recent case, the California Court of Appeals
held that the term “pimp,” allegedly used “in jest” was rea-
sonably capable of defamatory meaning. See Hughes v.
Hughes, 122 Cal. App. 4th 931 (Sept. 28, 2004). In Hughes,
the plaintiff alleged that he was defamed by his sons’ state-
ment, published in the Vanity Fair magazine, that “[o]ur dad’s
a pimp.” Id. at 934. The court concluded that the term “pimp”
KNIEVEL v. ESPN 59
was capable of defamatory meaning and the case was prop-
erly tried to a jury. In so holding, the court noted that “the dic-
tionary definition of pimp is a man who solicits clients for a
prostitute” and reasoned that, “[s]o long as the statement ‘our
dad’s a pimp’ can reasonably be understood to mean that
plaintiff had at one time engaged in pimping activity, it was
for the jury to determine if that is how the statement should
be understood.” Id. at 936-937 (citing Merriam-Webster
Online Dictionary (2004) at ).7
b. “Loose, Figurative or Hyperbolic” Language
The Majority next reasons that the term “pimp” is “loose,
figurative or hyperbolic” language and is therefore not capa-
ble of defamatory meaning. See Majority Op. at III.B.2. Not
so.
First, there is nothing “loose, figurative or hyperbolic”
about the term “pimp.” The noun describes criminal activity
in Montana,8 and should be especially loathsome to the “hip”
7
Alas, for plaintiff Hughes, in California, truth is still a defense. See
Hughes v. Hughes, 122 Cal. App. 4th 931 (Sept. 28, 2004) (plaintiff
alleged that statement “our dad’s a pimp” was defamatory; defendants
contended that truth was a defense under California law; by special ver-
dict, the jury held that defendants did not defame plaintiff; plaintiff
appealed on the ground that, inter alia, the evidence in support of the ver-
dict was insufficient and the court gave an erroneous jury instruction; Cal-
ifornia Court of Appeal affirmed, holding that evidence of past and present
actions was sufficient and relevant to a determination of whether the alleg-
edly defamatory statement was true and the jury was properly instructed).
But note, Hughes got a trial; his complaint was not dismissed.
8
See MONT. CODE ANN. § 45-5-602(1)(e) (“[a] person commits the [fel-
ony] offense of promoting prostitution if the person purposely or know-
ingly . . . procures a prostitute for a patron”). Moreover, procuring a
prostitute is illegal in Nevada where the photograph was taken. See NEV.
STAT. ANN. § § 201.300(1)(a), (f) et seq. (“[a] person who: (a) [i]nduces,
persuades, encourages, inveigles, entices or compels a person to become
a prostitute or to continue to engage in prostitution . . . (f) [r]eceives, gives
or agrees to receive or give any money or thing of value for procuring or
attempting to procure a person to become a prostitute or to come into this
state for the purpose of prostitution is guilty of pandering”).
60 KNIEVEL v. ESPN
who sometimes espouse political correctness, for it connotes
despicable sexist conduct of domination and exploitation.
Second, the terms used to describe the other individuals
ESPN displayed in the photo gallery implicitly allude to an
individual’s promiscuity (“share the love”; “hottie”), conceit
and self-centeredness (“throwing down a pose”), drinking
prowess (“put a few back”), attitude (“hardcore”) and general
hipness (“give a shout out to EXPN”). Slang is used to
describe being left alone, greeting someone or drinking beer.
These terms are aptly deemed “loose, figurative and hyperbol-
ic” phrases.
On the other hand, the description of Knievel is unique.
While all the others are described in terms implying fun-filled
misconduct of one sort or another, only Knievel was described
as a criminal, per dictionary definition. For example, the pro-
miscuous women are called “hotties”, not “whores” or
“sluts”; the beer-drinkers are not called “public drunks.” None
of the other terms describes any criminal activity, much less
the loathsome anti-feminist characteristics of a “pimp.”
The “loose, figurative and hyperbolic” language used to
describe the other individuals actually highlights the fact that
while all others are described as sexy, hip and with-it, the
hard, factual description of plaintiff as a criminal and abuser
of women is reserved for Knievel. Courts have recognized
that “[s]tatements that could reasonably be understood as
imputing specific criminal or other wrongful acts are not enti-
tled to constitutional protection merely because they are
phrased in the form of an opinion.” Standing Committee on
Discipline v. Yagman, 55 F.3d 1430, 1440 (9th Cir. 1995)
(statement that judge was “drunk on the bench” was action-
able and not mere rhetorical hyperbole).
It may well be that some people reading the web site take
“pimp” to be a commendation indicating “cool,” but that is
not what the complaint has alleged, nor what the district court
KNIEVEL v. ESPN 61
found to be a reasonable interpretation (before that interpreta-
tion was massaged by tendentious interpretations of “con-
text”). See Knievel v. ESPN, Inc., 223 F. Supp. 2d 1173, 1180
& n. 1 (D. Mont. 2002) (concluding that “[t]he Court con-
cludes that use of the term pimp is capable of the meaning
prescribed by Plaintiffs: that Evel and Krystal Knievel were
involved in criminal activity involving prostitution”).
Is it so “unreasonable” to conceive of an executive of a cer-
tain age, concerned with his market share of “average person”
consumers, believing that a reputed daredevil has decided to
supplement his income by living off “his ladies,” a couple of
which are shown in the photo? Again, so long as a reasonable
interpretation is defamatory, plaintiff has stated a claim for
relief. See Kaelin, 162 F.3d at 1040.
3. Third Prong: Susceptibility of Being Proven True or
False
Finally, under the Ninth Circuit’s three-part test, the court
must determine whether the “statement itself is sufficiently
factual to be susceptible of being proved true or false.”
Underwager, 69 F.3d at 366.
This is the strongest element in favor of plaintiff. Whether
one is a “hottie” may depend upon who is saying it, and, per-
haps, his recognized expertise in identifying “hotties.” One
man’s “hottie” may be another’s “dog.” It may depend against
whom one is being compared. Different speakers can mean
different things by that term. Similarly, “hardcore.” These are
relative adjectives defining subjective attitudes of sexual
prowess or promiscuity and attitude.
In contradistinction, “pimp” has a literal dictionary defini-
tion that is clearly susceptible of being proven true or false.
The Majority eludes this inconvenient fact when it ignores the
dictionary definition and simply takes the “slang” definition
of “pimp” as the only usage which the law allows. It is uncon-
62 KNIEVEL v. ESPN
troverted that, in the literal sense of the word, the term pimp
“is sufficiently factual to be susceptible to being proved true
or false.” Majority Op. at III.B.2. However, the Majority
assumes that the question is whether the slang usage of
“pimp” is capable of being proven true or false. Not surpris-
ingly, the Majority concludes it is not. It seems equally plausi-
ble that, when used in the slang sense, the term “pimp” is
irreducibly subjective and not capable of being proved true or
false. However, the Majority’s analysis begs the question by
impermissibly reducing the possible meaning of “pimp” from
common usage to slang. Moreover, the Majority’s reasoning
is contrary to the caselaw: the issue is whether an “average
person” in the community (not just the slang users) would
consider the term “pimp” defamatory.
III
The fundamental principle of First Amendment law is to
facilitate the search for truth by encouraging “uninhibited,
robust and wide open” public debate. New York Times v. Sul-
livan, 376 U.S. 254, 270 (1964). One can agree that “public
debate [must] not suffer for lack of ‘imaginative expression’
or the ‘rhetorical hyperbole’ which has traditionally added
much to the discourse of our Nation.” Falwell, 485 U.S. at 53-
55.
However, in my view, the word “pimp” is reasonably sus-
ceptible to a defamatory meaning. Were the court to hold that
the district court erred in denying the defendant’s motion to
dismiss, it would do no more than decide that the complaint
presents an issue of fact for a jury to decide.9 In my view, it
9
Or perhaps, the court would dismiss on motion for summary judgment,
were the defendant to establish, by evidence, and beyond material triable
issues of fact, all of the factual premises upon which the Majority here
relies: (1) the only audience that saw the show were adolescents; (2) all
such adolescents are so hip they understand only the slang usage of
“pimp”; (3) all such adolescents use “pimp” in exclusively jocular and
light-hearted exchanges. Perhaps the defendant could establish all these
foundational facts, but one tends to doubt a broadcaster would hazard rep-
resenting to its advertisers such a restricted audience.
KNIEVEL v. ESPN 63
is not for us to say that the publication “did not hurt the plain-
tiffs by tending to deprive them of friendly association with
a considerable number of respectable members of their com-
munity.” Mencher, 297 N.Y. at 102. Rather, I believe “it is
the right of the plaintiffs to have a jury say whether the false
words did, in fact, so defame them.” Id. (emphasis added).
Accordingly, I respectfully dissent.