Wednesday, January 5, 2005
Page 1
Evel Knievel Not Defamed by ‘Pimp’ Reference in Photo Caption
By KENNETH OFGANG, Staff Writer/Appellate Courts
A published photograph of Evel Knievel with one arm around his wife and another around another woman, accompanied by a caption saying that Knievel “proves that you’re never too old to be a pimp,” was not defamatory as to either the motorcycle daredevil or his spouse, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
A divided panel affirmed a grant of summary judgment in favor of ESPN, the Walt Disney, Inc. subsidiary that posted the photograph and caption on a web page devoted to motorcycle jumping and other “extreme” sports. The picture was taken at an ESPN awards show and was removed from the site after six days.
“Although the word ‘pimp’ may be reasonably capable of a defamatory meaning when read in isolation,” Senior Judge A. Wallace Tashima wrote, we agree with the district court’s assessment that ‘the term loses its meaning when considered in the context presented here.’”
‘Immoral Behavior’
Evel and Krystal Knievel claim the photograph and caption, part of a “Green Carpet Gallery” of pictures taken at the 2001 Action Sports and Music Awards, suggest that they engaged in “immoral and improper behavior.” They were exposed, they alleged in their complaint, “to hatred, contempt, ridicule and obloquy,” with resulting damage to Evel Knievel’s reputation as a humanitarian and advocate for such causes as avoidance of drugs and motorcycle safety and his ability to obtain work as a commercial spokesman and endorser.
U.S. District Judge Donald Molloy of the District of Montana, in granting summary judgment, noted that the disputed photograph was one of 17 in the “gallery” and that the captions generally used suggestive language.
The website, Molloy wrote, “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.”
Tashima, writing for the Ninth Circuit, agreed.
Even if the language were reasonably capable of a defamatory interpretation, the judge wrote, it would be protected as a statement of opinion rather than a factual assertion. The judge cited the court’s 1995 opinion overturning Venice attorney Stephen Yagman’s suspension from practice before the U.S. District Court for the Central District of California.
The court, Tashima noted, held that Yagman’s description of Judge William Keller as “dishonest” was protected opinion, rather than an actionable imputation of misconduct, in the context of a description of the jurist as, among other things, “ignorant,” “ill-tempered,” and a “buffoon.”
The “gallery,” Tashima pointed out, “pokes fun at many of the celebrities it portrays.” Snowboarders Shannon Dunn and Leslee Olsen, he noted, are shown smiling with the caption reading that Dunn and Olsen “make it look easy to be cheesy,” while another prominent snowboarder is shown taking a step towards the camera with the caption “Todd Richards tells the camera man to step off his lady.”
Tashima also rejected the contention that the Montana constitution, which declares that a jury “under direction of the court, shall determine the law and the facts” in all cases of libel and slander, prohibits the grant of summary judgment in federal cases brought under that state’s laws.
Argument Rejected
The argument is both inconsistent with the interpretation of the constitutional provision by the Montana Supreme Court and contrary to the U.S. Supreme Court’s Erie doctrine, which requires that the Federal Rules of Civil Procedure be applied in all federal cases, including those to which state substantive law applies because they are brought under diversity jurisdiction, Tashima said.
Judge Richard A. Paez concurred in the opinion, but Judge Carlos Bea dissented, saying a reasonable person might view the photograph and caption “and believe a longtime daredevil now seeks money by living less on motorcycles and more off of women.”
Not every viewer of the web site, Bea argued, is necessarily part of the hip, younger audience described by Tashima and the district judge.
“One should include not only the audience ESPN claims, and the court accepts, as the one targeted,” the dissenter wrote. “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.
The case is Knievel v. ESPN, 02-35120.
Copyright 2005, Metropolitan News Company