Sunday, January 09, 2005

Knievel v. ESPN (9th Cir. - January 4, 2005)

Here's an opinion that's interesting on several different levels.

First, on the merits, it's somewhat of a toughie. ESPN puts a picture of Evel Knievel on the "extreme sports" portion of its web site in which Evel is hanging out at the 2001 ESPN Action Sports and Music Awards with his right arm around his wife and his left arm around another young woman. ESPN's caption to the photo reads: "Evel Knievel proves that you're never too old to be a pimp." Evel sues for defamation, and ESPN files a 12(b)(6) motion to dismiss.

Now, I'm 100% certain what ESPN meant -- and what virtually everyone who read the photograph would understand ESPN to mean -- by the caption. So, if I were on the jury, I'd clearly rule in favor of ESPN at trial. The harder part is whether ESPN is entitled to prevail on a motion to dismiss. The majority (Tashima and Paez) hold that it is; the dissent (Bea) disagrees. Tough call, at least according to traditional doctrine.

I wonder, however, if the proper result revolves around whether a minority can essentially remove certain contemporary language from public spaces. Assume, for example, that I say on a website (as I hereby do) that "Bruce Springsteen kicks ass." Virtually everyone in the modern era would understand my statement as designed to suggest that Bruce Springsteen's music is very good. But someone unfamilar with contemporary lingo might read the phrase literally and interpret my statement as suggesting that Bruce is guilty of assault. Does the fact that a single person who lives in a cave might read my statement and take it literally mean that I can't make such a public proclamation (or that I risk a trial everytime I do)? This seems antithetical to free speech. But if one person isn't enough, what percentage is? Surely I can be sued if 40% of the public would read the statement in a literal fashion. Where do we draw the appropriate line, and at what stage of the case? So it's a tough (and interesting) case even beyond the factual dispute between the majority and dissent.

Second, civil procedure scholars should find Section III(B)(1) of the opinion interesting for its broad (and, in my view, correct) application of the "incorporation by reference" doctrine as applied to websites. No one else will find that portion of the opinion interesting, of course. But it's worth a mention.

Third, you gotta love the hero worship in the second and third paragraphs of the opinion. Does Judge Tashima moonlinght as Evel's publicist?

Finally, since when does calling someone a "hottie" mean that they're a slut? Both the majority and dissent say so -- the majority once and the dissent twice -- but that's not at all how I've ever interpreted that term. Who's right here; my oh-so-hip self or the panel, the youngest member of which is 70? Please, God, let it be me.