Evel Knievel Krystal Knievel v. Espn, a Subsidiary of Walt Disney, Inc.

393 F.3d 1068, 3 A.L.R. 6th 733, 33 Media L. Rep. (BNA) 1097, 2005 U.S. App. LEXIS 45, 2005 WL 14882
CourtCourt of Appeals for the Ninth Circuit
DecidedJanuary 4, 2005
Docket02-36120
StatusPublished
Cited by1,101 cases

This text of 393 F.3d 1068 (Evel Knievel Krystal Knievel v. Espn, a Subsidiary of Walt Disney, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Evel Knievel Krystal Knievel v. Espn, a Subsidiary of Walt Disney, Inc., 393 F.3d 1068, 3 A.L.R. 6th 733, 33 Media L. Rep. (BNA) 1097, 2005 U.S. App. LEXIS 45, 2005 WL 14882 (9th Cir. 2005).

Opinions

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.

[1071]*1071In 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 Constitu[1072]*1072tion 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 Cm. 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.

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393 F.3d 1068, 3 A.L.R. 6th 733, 33 Media L. Rep. (BNA) 1097, 2005 U.S. App. LEXIS 45, 2005 WL 14882, Counsel Stack Legal Research, https://law.counselstack.com/opinion/evel-knievel-krystal-knievel-v-espn-a-subsidiary-of-walt-disney-inc-ca9-2005.