FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

EVEL KNIEVEL; KRYSTAL KNIEVEL, 

Plaintiffs-Appellants, No. 02-36120

v. D.C. No. 

ESPN, a subsidiary of Walt CV 01-069 DWM

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
COUNSEL

Wade J. Dahood, Knight, Dahood, Everett & Sievers, Anaconda, 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 rosetinted 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

30 KNIEVEL v. ESPN
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 mountain 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 unsuccessful 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 daredevil, Evel Knievel has become one of the most recognized

names in sports throughout the world. The Smithsonian Institute has dedicated a portion of its museum to honor his

achievements, and at least seven books and four motion pictures have been dedicated to his life. Evel enjoys an excellent

reputation in his community as a humanitarian and an advo1

See http://www.evelknievel.com (last visited July 20, 2004). 

KNIEVEL v. ESPN 31
cate for the well-being of young people, and he has used his

fame and notoriety to promote anti-drug programs and motorcycle 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 “father of extreme sports,” was in attendance with Krystal. ESPN

arranged to have many of the celebrities in attendance photographed, including the Knievels. In one photograph, Evel is

flanked on his right by his wife and on his left by an unidentified 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 photograph 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 celebrities, 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

32 KNIEVEL v. ESPN
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 photograph 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 Knievel.” And because of the photograph and its caption, they

allege, several of Evel’s former clients do not want him associated 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

2The 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 permitted 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)

KNIEVEL v. ESPN 33
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 Workers 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 dismissing the action because the Knievels addressed the merits of their

claim in their opening brief, ESPN didn’t bring the oversight to our attention, 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. 

34 KNIEVEL v. ESPN
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 constitutional right in a libel and slander case in Montana” that

guarantees them their “fair day in court.” But Montana’s highest court, which we are bound to follow, interprets the provision 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 notwithstanding 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. Helfrich, 922 P.2d 1159, 1161 n.1 (Mont. 1996). 

While our Constitution like that of Missouri, Colorado, 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 decisions 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. 

KNIEVEL v. ESPN 35
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 submitted to a jury. Hale, like the cases before it, recognized that

courts can rule on whether a statement is capable of a defamatory 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) (holding 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 dispute). 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 def36 KNIEVEL v. ESPN
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 intrusion on the field of free expression.’ ” Bose Corp. v. Consumers 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 Knievels must not only establish that the photograph and caption

about which they complain are “reasonably capable of sustaining 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 questions 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 nonactionable 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 standpoint of the average reader, judging the statement not in isolation, 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 ‘darkhorse Norse,’ ignored and unpublished,” was not reasonably

KNIEVEL v. ESPN 37
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 reasonably 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 photograph 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 exaggeration 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 allegations of fact, courts “provide[ ] assurance that public debate

will not suffer for lack of ‘imaginative expression’ or the ‘rhetorical hyperbole’ which has traditionally added much to the

38 KNIEVEL v. ESPN
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 “totality of the circumstances in which it was made.” Underwager, 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 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 expectations 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. 

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 “examine 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 development permit stated that some people at the meeting characterized 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 blackmail. The Supreme Court reversed, holding that the statement

KNIEVEL v. ESPN 39
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 Discipline 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, figurative 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 Yagman 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 context in which this statement was made that tends to negate the

40 KNIEVEL v. ESPN
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 (Second) 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 contents 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 contents 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 complaint. Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th Cir.

1998) (holding that the district court properly considered documents attached to a motion to dismiss that described the

terms of plaintiff’s group health insurance plan, where plaintiff 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 newspaper article containing allegedly defamatory statement under

the “incorporation by reference” doctrine where it was “cenKNIEVEL v. ESPN 41
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 reference” 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 photograph 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 portions of the EXPN.com website in its supplemental excerpts

of record on appeal. The Knievels do not dispute ESPN’s contention 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 CDROM attached to ESPN’s motion to dismiss. When browsing

the CD-ROM, we found that in order to access the photograph, 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 statement, 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

42 KNIEVEL v. ESPN
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 teenager 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 hyperbolic 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 nonliteral language guides our inquiry. The web pages immediately 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 Dictionary 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 “unswervingly 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”). 

6To “scope” is to evaluate a member of the opposite sex visually. Richard A. Spears, Ph.D., NTC’s Dictionary of American Slang and Colloquial

Expressions 333 (NTC Publishing Group 2d ed. 1995). 

KNIEVEL v. ESPN 43
such as “throwing down a pose,” “put a few back,” and “hottie 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.8See Yagman, 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 photograph and caption, in the context in which they were published, 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 outhouse 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 comedy performance,” was not defamatory as a matter of law).

The “Green Carpet Gallery” pokes fun at many of the celebrities it portrays. One photograph features two women smiling,

and is accompanied by the caption “Shannon Dunn and Leslee 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

7The term “hottie” refers to “an attractive or sexually promiscuous person of the opposite sex, usually a woman.” Random House Vol. II, at 185.

8

“Pimp” has traditionally meant a man in charge of prostitutes. Webster’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 earnings.”). But “[t]oday it’s a very ambiguous term, used as either a compliment 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”).

44 KNIEVEL v. ESPN
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 allegation of criminal wrongdoing. 

[11] We acknowledge, like the district court did, that taken

in isolation and given a literal interpretation, ESPN’s suggestion that Evel is a pimp is “sufficiently factual to be susceptible 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 publisher 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 lawabiding 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 dispositive 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

KNIEVEL v. ESPN 45
a defamatory sense”). Read in the context of the satirical, risque, 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 thousands;

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 con1Except in this case, where it did apparently enrich ESPN insofar as

ESPN received free publicity at the expense of Knievel. 

46 KNIEVEL v. ESPN
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 person 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 publication; (3) that actual injury to [plaintiff] ensued for which

he may recover his actual damages; and (4) [ ] that the publication was made by defendants with knowledge of its falsity

or in reckless disregard for the truth or falsities thereof.” Madison v. Yunker, 180 Mont. 54, 67, 589 P.2d 126, 132 (1978).

Courts have held that, to comport with the First Amendment, only statements that can “reasonably be interpreted to

state actual facts about an individual” are capable of defamatory 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. 

KNIEVEL v. ESPN 47
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 limited. “It is only when the court can say that the publication is

not reasonably capable of any defamatory meaning and cannot 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 susceptible 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 susceptible 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 defamatory meaning” and is therefore actionable. 

B. Ninth Circuit Three-Part Test 

Under Ninth Circuit caselaw, to determine whether a statement is capable of defamatory meaning, we use the following

three-part test: 

48 KNIEVEL v. ESPN
[t]o determine whether a statement implies a factual

assertion, we examine the totality of the circumstances 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 statements, 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 expectations 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 statements . . . imply an assertion that petitioner Milkovich perjured himself”). Put another way, the “average reader” is a

“reasonable juror.” Cochran, 58 F. Supp. 2d at 1121 (statement 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

KNIEVEL v. ESPN 49
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 natural 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 susceptible 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 program 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 television 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

50 KNIEVEL v. ESPN
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 segment of ‘60 minutes’ does not negate the impression

that he was making a factual assertion about [the

product’s] performance when applied to his vehicles. Although part of a humorous report, the statement ‘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 exaggeration, 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’ segment. 

Unelko, 912 F.2d at 1054 (emphasis added). 

3Here, the Knievels allege several clients who saw defendants’ web site,

believed the slur and cancelled Mr. Knievel’s contracts. See Knievel Complaint at ¶ 6, p. 7. 

KNIEVEL v. ESPN 51
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 context 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 Gallery”) 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, proprietor 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 having 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 Falwell.” Falwell, 797 F.2d 1270, 1273 (4th Cir. 1986), overruled on other grounds, Hustler Magazine v. Falwell, 485

52 KNIEVEL v. ESPN
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 nonfactual, 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 context” was erroneously narrowed by its acceptance of defendant’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 obvious 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 website 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”) (internal citations omitted). 

5There is no evidence in the record to support the district court’s conclusion 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

KNIEVEL v. ESPN 53
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 audience”). 

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). Moreover, 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 possible viewers: the more aged, the adolescents brought up in traditional or

religious families, where modesty and decency are core values; the persons 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” standard by which to judge the credibility of the statement, after positing a single 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. 

54 KNIEVEL v. ESPN
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 colorful and humorous language [defendant] used [ ] did not

negate the impression that [defendant] was seriously maintaining [plaintiff] committed [the act]”). 

On this issue, the Majority’s focus of claimed “broad context” 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 bourgeois who are Knievel’s clients and who allegedly have abandoned 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); Standing Comm. on Discipline of U.S.D.C. for the C.D. Cal. v. Yagman, 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.

KNIEVEL v. ESPN 55
Rivera, 292 F.3d 695, 702 (11th Cir. 2002) (examining specific context by comparing defendant’s statements with plaintiff’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 expressing 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 protection.” 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. Yagman, 55 F.3d 1430 (9th Cir. 1995) (per Kozinksi, J.). 

Here, the Majority concludes that when viewed in the specific 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 immediately 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 articulates two principle rationales: (1) “pimp” has a “slang” meaning as well as a common meaning; thus, the slang meaning

56 KNIEVEL v. ESPN
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 necessarily 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 negative 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 persons.” 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 offering nor, with respect, the Majority’s application of the term.6

6According to Webster’s Collegiate Dictionary (Tenth Edition), “pimp”

is defined as: “Pimp. n [origin unknown] (1600): a man who solicits clients for a prostitute.” See also Oxford English Dictionary (Second Edition): “Subject [Origin obscure] a. One who provides means and

opportunity for unlawful sexual intercourse; a pander, procurer.” Webster’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.” 

KNIEVEL v. ESPN 57
As noted above, courts can look at any reasonable construction 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 reasonably 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’ statement, published in the Vanity Fair magazine, that “[o]ur dad’s

a pimp.” Id. at 934. The court concluded that the term “pimp”

58 KNIEVEL v. ESPN
was capable of defamatory meaning and the case was properly tried to a jury. In so holding, the court noted that “the dictionary 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 <www.Merriam-Webster.com>).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 capable 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”

7Alas, 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 verdict, the jury held that defendants did not defame plaintiff; plaintiff

appealed on the ground that, inter alia, the evidence in support of the verdict was insufficient and the court gave an erroneous jury instruction; California Court of Appeal affirmed, holding that evidence of past and present

actions was sufficient and relevant to a determination of whether the allegedly 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 [felony] offense of promoting prostitution if the person purposely or knowingly . . . 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”). 

KNIEVEL v. ESPN 59
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 hyperbolic” 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 promiscuous 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 entitled 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 actionable 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

60 KNIEVEL v. ESPN
found to be a reasonable interpretation (before that interpretation was massaged by tendentious interpretations of “context”). See Knievel v. ESPN, Inc., 223 F. Supp. 2d 1173, 1180

& n. 1 (D. Mont. 2002) (concluding that “[t]he Court concludes 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 certain 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, perhaps, 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 definition 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 unconKNIEVEL v. ESPN 61
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 surprisingly, the Majority concludes it is not. It seems equally plausible 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. Sullivan, 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 susceptible 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

9Or 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 representing to its advertisers such a restricted audience. 

62 KNIEVEL v. ESPN
is not for us to say that the publication “did not hurt the plaintiffs by tending to deprive them of friendly association with

a considerable number of respectable members of their community.” 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.

KNIEVEL v. ESPN 63