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

393 F.3d 1068 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. Argued and Submitted May 5, 2004. Filed January 4, 2005. COPYRIGHT MATERIAL OMITTED 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: 1 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…

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…

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…