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Knievel v. ESPN, 223 F.Supp.2d 1173 (D. Mont. 2002) (full-text), aff'd, 393 F.3d 1068 (9th Cir. 2005) (full-text).

Factual Background[]

In April 2001, ESPN held its Action Sports and Music Awards ceremony where "celebrities in the fields of extreme sports and popular music" were honored. Knievel and his wife attended the event and were photographed while walking in. ESPN published this photo of Knievel, his wife and an unidentified woman on its "" website, along with numerous other celebrity photos taken at the event. features extreme sports.

The photograph depicted Knievel, "who was wearing a motorcycle jacket and rose-tinted sunglasses, with his right arm around [his wife] and his left arm around another young woman." The photo was captioned: "Evel Knievel proves that you’re never too old to be a pimp." The photo was online for a total of six days before being removed.

Knievel brought suit claiming that "the photograph and caption were defamatory because they accused [Knievel] of soliciting prostitution and implied that [his wife] was a prostitute."

Trial Court Proceedings[]

In response to ESPN's motion for summary judgment, the judge noted that the photo was one of several on ESPN's website, and that all of them had suggestive or risque captions. Moreover, the judge emphasized that the Knievels' photo was positioned so that viewers had to see other photos before they could see the Knievels' photo.

Finally, though the judge acknowledged that a "pimp" can be "a man who solicits customers for a prostitute . . . ," it also has been defined by The Online Slang Dictionary to mean "cool." As a result, Judge Molloy concluded that "[t]he 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 [the Knievels] of being involved in criminal activity."

The trial court reasoned that the context of the communication was "directed at a younger audience and contained loose, figurative, slang language such that a reasonable person would not believe ESPN was actually accusing [Knievel] of being involved in criminal activity."

Appellate Court Proceedings[]

On appeal, Knievel maintained that the Montana Constitution guaranteed him a jury trial and that the trial court erred in granting summary judgment for ESPN. In an opinion by Judge Wallace Tashima, the Court of Appeals disagreed, saying there were no issues of fact that warranted a jury trial. It therefore affirmed the dismissal of Knievel's lawsuit.

Judge Tashima agreed that the First Amendment protected ESPN's communication and that no reasonable person would find the photo and caption defamatory within its context. He made specific note of the "overwhelming presence of slang and non-literal language" on the website.

Judge Carlos T. Bea dissented because he felt a reasonable person could find the photo and caption were defamatory.