Media, Privacy and Defamation Law Committee Newsletter Spring 2005
In addition to clearing up a needless ambiguity in the law, these proposed amendments would clarify when
members of governmental bodies can deliberate in numbers less than a quorum without an open meeting. But they
would do so in a more clear and specific way than HB 305, and in favor of open government and public inclusion,
so central to our form of government, and so necessary for civic involvement.
Joe Larsen is a partner with Ogden, Gibson, White, Broocks & Longoria L.L.P. in Houston ([email protected]), with a practice focused
on media law, insurance coverage, and commercial litigation. He is a board member of the Freedom on Information Foundation of Texas
and is a frequent speaker on open government and access issues.
Slang, Generation Gaps, and Deciding What is Defamatory
By: Michael W. Stockham
The case of Knievel v. ESPN,
393 F.3d 1068 (9th Cir. 2005), has
its roots in the culture of thrillseeking athletes and involves famed
motorcycle daredevil Evel Knievel,
whom some refer to as the “father
of extreme sports.” Id. at 1071. In
2001, Evel attended ESPN’s Action
Sports and Music Awards. Id. Evel
later took issue with a caption that
appeared next to a photograph of
him taken at the 2001 event and
then placed on an ESPN website
geared toward extreme sports:
EXPN.com. Id. In the photograph,
Evel had one arm around his wife.
Id. Evel’s other arm was around the
waist of a second, but unidentified,
woman. Id. The caption near the
photograph stated: “Evel Knievel
proves that you’re never too old to
pimp.” Id. at 1070.
ings. First, it went beyond the
pleadings and reviewed pages from
the website under the “incorporation by reference” doctrine. Id. at
1076-77. Second, it agreed with the
district court that the statement
should be analyzed from the point
of view of the typical visitor to the
EXPN.com website. Id. at 1077,
1083 n. 5. It then reasoned that a
member of EXPN.com’s target
audience would have interpreted
the word “pimp” as part of the
youthful slang and jocular humor
common to the website. Id. at 1078.
As such, the Majority held the
statement was not defamatory as a
matter of law. Id. It is these two rulings on which this article focuses.
Evel and Krystal Knievel sued
in Montana state court for defamation, contending the photograph
and caption “accused Evel of soliciting prostitution and implied
Krystal was a prostitute.” Id. ESPN
removed the action to federal court,
where the district judge dismissed
the action for failure to state a
claim, holding the statement was
not defamatory as a matter of law.
Id. The Knievels appealed. A split
panel of the Ninth Circuit affirmed.
Id. at 1079.
Typically a federal district
court, in ruling on a motion to dismiss for failure to state a claim
under Rule 12(b)(6), “must disregard facts that are not alleged on
the face of the complaint or contained in documents attached to the
complaint.” Id. at 1076. Indeed, the
text of Rule 12(b)(6) mandates that,
if a court considers matters outside
the pleadings in ruling on a Rule
12(b)(6) motion, the court must
convert that motion to a summary
judgment motion under Rule 56.
Thus, a complaint in federal court
usually rises or falls on the factual
allegations within its four corners.
In reaching its decision, the
Majority made two significant rul-
Limited exceptions exist to this
maxim of Rule 12(b)(6) motion
practice. One exception is the
incorporation-by-reference doctrine. Under the incorporation-byreference doctrine, the court may
also consider documents attached
to the motion to dismiss if the
attached documents are central to
the plaintiff’s claim, and there is no
dispute as to authenticity. Id. at
1076; see also e.g., Rosenblum v.
Travelbus.com Ltd., 299 F.3d 657,
661 (7th Cir. 2002). In Knievel v.
ESPN, the majority applied the
incorporation-by-reference doctrine to consider other pages on the
EXPN.com website besides the
web page with the photograph of
Evel and Krystal Knievel.
In particular, the Majority noted
that to access the photograph of the
Knievels a visitor to the website
could not help but view at least nine
additional photographs as well that
the EXPN.com home page.
Knievel, 393 F.3d at 1077. The
majority reasoned that a “computer
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Media, Privacy and Defamation Law Committee Newsletter Spring 2005
user necessarily views web
pages in the context of the
links through which the user
accessed those pages.” Id. at
1076. As such, it held it could
take these other web pages into
account in reviewing the
Knievels’ motion to dismiss
and deciding whether, in that
context, the language was
defamatory as a matter of law.
Id. at 1077.
“Against this backdrop, the
Majority ultimately concluded that
“any reasonable viewer [of the website
depicting Evel Knievel, his wife, and an
unknown woman] would have interpreted the word ‘pimp’ [by Knievel] in
the same loose, figurative sense as well.”
And in this jocular world, “pimp” had
become a more ambiguous word used
to compliment a male as being “cool”
or to insult his “attitude, clothing, or
general behavior.” As such, the use of
the word “pimp” could not be a serious
allegation of criminal wrongdoing.”
After ruling that it could
consider the additional web
pages, the Majority then
turned its attention to the
broad context of the web page and
the use of loose and figurative language. Id. The Majority commented that the “overwhelming presence of slang and nonliteral language [on the web site]
guide[d] their inquiry.” Id. In particular, it noted such slang phrases
as “[d]udes rollin’ deep,” “kickin’
it with much flavor,” “scoping,”
“throwing down a pose,” “put a
few back,” and “hottie of the year.”
Id.
The Majority presented definitions of these terms from such
authorities as the Random House
Historical Dictionary of American
Slang and NTC’s Dictionary of
American Slang and Colloquial
Expressions. Id. at 1077 ns. 4 & 6.
The Majority concluded that these
terms were not “intended to be
interpreted literally, if indeed they
have a literal meaning in all.” Id.
Indeed, the Majority reasoned that
any reasonable viewer exposed to
these terms on other pages would
“expect to find precisely that type
of youthful, non-literal language on
the rest of the site.” Id.
Against this backdrop, the
Majority ultimately concluded that
“any reasonable viewer [of the
website] would have interpreted the
14
word ‘pimp’ in the same loose, figurative sense as well.” Id. And in
this jocular world, “pimp” had
become a more ambiguous word
used to compliment a male as being
“cool” or to insult his “attitude,
clothing, or general behavior.” Id.
at 1077 n. 8. As such, the use of the
word “pimp” could not be a serious
allegation of criminal wrongdoing.
Furthermore, the Majority clarified that, even if the viewer had
placed a more literal interpretation
on the word “pimp,” such a viewer
would have “certainly interpreted
the photograph and caption, in the
context in which they were published, as an attempt at humor.” Id.
at 1078. The Majority pointed out
that the series of photos — the
“Green Carpet Gallery” — of
which the Knievels’ was one, poked
fun at many of the celebrities it featured. Id. For example, a different
p h o t o g r a p h ’s c a p t i o n r e a d ,
“Shannon Dunn and Leslee Olson
make it look easy to be cheesy.” Id.
Just as no reasonable reader would
interpret that caption as an allegation of fact, no reasonable person
would “interpret the photograph of
the Knievels as a serious allegation
of criminal wrongdoing.” Id.
Whether it was an issue of the tar-
get audience or of humorous
intent, the Majority rested its
affirmation heavily on the website’s context.
The Dissent disagreed with
that contextual analysis, reasoning that a court cannot judge
defamation by “asking who was
intended to hear” the statement,
but should, instead, judge it by
“who did hear it.” Id. at 1083
(emphasis in Dissent). Indeed,
the Dissent pointed out that,
even if it did “accept the stereotypes” the Majority shared with
the district court, neither the district court nor the Majority considered any stereotype of other possible viewers. Id. For example, neither considered “the persons active
in gender equity activities who
greatly resent the power inequality
which exists between pimps and
prostitutes.” Id. at 1083 n. 5.
Ultimately, the Dissent argued that,
in deciding whether to dismiss a
statement as not defamatory as a
matter of a law, a district court “has
to consider not only who was targeted, but who was hit.” Id.
The Dissent also disagreed with
the Majority’s conclusion that the
slang definition of “pimp” was the
correct definition to use. The
Dissent argued that courts should
consider any “reasonable construction of a word to determine whether
its use was defamatory.” Id. at
1085. It said that the Majority
should not have jumped to embrace
ESPN’s “hip offering.” Id. ESPN
had argued that “pimp” can mean a
person is cool, act as an insult as to
general behavior, or even compliment someone on their mastery of a
subject. Id. at 1077 n. 8. The
Dissent pointed out that ESPN’s
proffered definition did not make
it into Webster’s Collegiate
Dictionary, but that the pejorative
Media, Privacy and Defamation Law Committee Newsletter Spring 2005
meaning of “pimp” had done so. Id.
at 1085. In short, the Dissent chastised the Majority for using its
contextual argument to limit its
analysis-universe of slang or loose
figurative language instead of a
broader linguistic-universe.
Knievel v. ESPN illuminates two
issues for practitioners. First, courts
are willing to consider a great deal
of information on a website in evaluating the context surrounding an
alleged defamatory statement.
Second, courts might consider
slang and, in particular, the audience’s perceived use and understanding of that slang, in determining if a statement is defamatory as
a matter of law.
Michael Stockham is a 2002 graduate
of Cornell Law School. He is an associate
in the Dallas office of Thompson & Knight
LLP ([email protected]) and
practices in trial and appellate law.
2005 TIPS CALENDAR
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