dissenting.

Shakespeare’s lago said it best:

William Shakespeare, Othello, Act III, scene iii (1604).

With considerable less lilt than lago, 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 concludes 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 , 110 S.Ct. 2695 , 111 L.Ed.2d 1 (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 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 , 78 S.Ct. 99 , 2 *1080 L.Ed.2d 80 (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 , 78 S.Ct. 99 .

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) (“[assuming, 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:

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) ("Mo 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 , 110 S.Ct. 2695 , 111 L.Ed.2d 1 (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 probably false assertions of fact”) (emphasis added).

*1081 The issue is not “whether the court regards the language as libelous, but whether it is reasonably susceptible of such a 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 nondefa-matory 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 , 75 N.E.2d 257 (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 non-defamatory 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) (“[ijf 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 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:

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

*1082 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 plaintiffs 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 v. Flynt, 797 F.2d 1270, 1273 (4th Cir.1986), overruled on other grounds, Hustler Magazine v. Falwell, 485 U.S. 46 , 108 S.Ct. 876 , 99 L.Ed.2d 41 (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 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:

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 DeTomaso v. Pan American, 43 Cal.3d 517 , 235 Cal.Rptr. 292 , 733 P.2d 614 (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, 170 Cal.App.3d 543 , 216 Cal.Rptr. 252, 257 (1985) (“jocular intent of the publisher will not relieve him from liability if it is reasonable not to understand the 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: Speciñc 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.

*1084 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. Rivera, 292 F.3d 695, 702 (11th Cir.2002) (examining specific context by comparing defendant’s statements with plaintiffs, where allegedly defamatory statement was made during television talk show appearance).

We have recognized that “[ejven 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:

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 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 *1085 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

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:

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 , 19 Cal.Rptr.3d 247 (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 , 19 Cal. Rptr.3d 247 . The court concluded that the term “pimp” 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 , 19 Cal.Rptr.3d 247 (citing Mer-riamrWebster Online Dictionary (2004) at ). 7

*1086 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” 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 “[statements 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 found to be a reasonable *1087 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 uncontroverted 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 impermissi-bly 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.

Ill

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 , 84 S.Ct. 710 , 11 L.Ed.2d 686 (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 , 108 S.Ct. 876 .

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 pres *1088 ents an issue of fact for a jury to decide. 9 In my view, it 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 , 75 N.E.2d 257 . 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.

. Except in this case, where it did apparently enrich ESPN insofar as ESPN received free publicity at the expense of Knievel.

. I agree with the majority that diversity jurisdiction exists. 28 U.S.C. § 1332 . See Majority Op. at III.A.

. Here, 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.

. 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).

. There 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 been requested (which it was not) that youngsters call each other "pimps” in a jocular and lighthearted manner, rather than to provoke street comer 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.

. According 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.”

. Alas, for plaintiff Hughes, in California, truth is still a defense. See Hughes v. Hughes, 122 Cal.App.4th 931 , 19 Cal.Rptr.3d 247 *1086 (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.

. See Mont. Code Ann. § 45-5-602 (l)(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(l)(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]e-ceives, 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”).

. 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 representing to its advertisers such a restricted audience.