393 F.3d 1068 (9th Cir. 2005), 02-36120, Knievel v. ESPN

Docket Nº:02-36120.
Citation:393 F.3d 1068
Party Name:Evel KNIEVEL; Krystal Knievel, Plaintiffs-Appellants, v. ESPN, a subsidiary of Walt Disney, Inc., Defendant-Appellee.
Case Date:January 04, 2005
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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393 F.3d 1068 (9th Cir. 2005)

Evel KNIEVEL; Krystal Knievel, Plaintiffs-Appellants,

v.

ESPN, a subsidiary of Walt Disney, Inc., Defendant-Appellee.

No. 02-36120.

United States Court of Appeals, Ninth Circuit

January 4, 2005

Argued and Submitted May 5, 2004

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[Copyrighted Material Omitted]

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Wade J. Dahood, Knight, Dahood, Everett & Sievers, Anaconda, MT, for the plaintiffs-appellants.

Nathan Siegel, ABC, Inc., Washington, D.C., for the defendant-appellee.

Appeal from the United States District Court for the District of Montana; Donald W. Molloy, District Judge, Presiding. D.C. No. CV 01-069 DWM.

Before: TASHIMA, PAEZ, and BEA, Circuit Judges.

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 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 advocate 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.

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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 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 the Montana Constitution

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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 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.

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, 295 Mont. 495, 986 P.2d 413, 418 (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, 200 Mont. 497, 651 P.2d 982, 994-95 (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., 114 Mont. 502, 138 P.2d 580, 586 (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, 277 Mont. 452, 922 P.2d 1159, 1161 n. 1 (1996).

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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....

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