Evel KNIEVEL; Krystal Knievel, Plaintiffs-Appellants, v. ESPN, a subsidiary of Walt Disney, Inc., Defendant-Appellee, 393 F.3d 1068

TASHIMA, Circuit Judge: 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 towed at 200 miles an hour behind race cars holding on to a parachute. As Evel’s reputation grew, so did the danger of his stunts. In 1968, he spent 30 days in a coma after an unsuccessful attempt to jump 151 feet across the fountains in front of Caesar’s Palace in Las Vegas.

Evel continued to perform daring jumps on his motorcycle, setting a world record in 1971 when he cleared 19 Dodge cars. In 1973, Evel stunned a crowd of 35,000 in the Los Angeles Coliseum when he launched from a ski jump over 50 cars stacked atop one another.

In 1974, keeping his promise to a fan, Evel risked his life on national television in an unsuccessful attempt to clear the Snake River Canyon in Idaho on his rocket powered “Skycycle.” His awe-inspiring attempt to jump over 14 Greyhound buses in 1975 continues to hold the ABC’s Wide World of Sports TV viewing audience record with a whopping 52% of household share. Because of his distinguished career as a motorcycle daredevil, Evel Knievel has become one of the most recognized names in sports throughout the world.

The Smithsonian Institute has dedicated a portion of its museum to honor his achievements, and at least seven books and four motion pictures have been dedicated to his life. Evel enjoys an excellent reputation in his community as a humanitarian and an advocate for the well-being of young people, and he has used his fame and notoriety to promote anti-drug programs and motorcycle safety. He has also served as a spokesperson for several prominent corporations, including clothing manufacturer Tommy Hilfiger and tire makers Firestone and Bridgestone.

In April 2001, ESPN held its Action Sports and Music Awards ceremony, at which celebrities in the fields of extreme sports and popular music such as rap and heavy metal converged. Well-known musicians Ben Harper and James Hatfield were there, as were popular rappers Busta Rhymes and LL Cool J. Evel, who is commonly thought of as the “father of extreme sports,” was in attendance with Krystal. ESPN arranged to have many of the celebrities in attendance photographed, including the Knievels. In one photograph, Evel is flanked on his right by his wife and on his left by an unidentified young woman.

He has one arm around each woman and he wears rose-tinted sunglasses and a motorcycle jacket. ESPN published the photograph of the Knievels on the “Green Carpet Gallery” portion of its “EXPN.com” website. The EXPN.com site features information and photographs relating to “extreme” sports such as skateboarding, surfing, and motorcycle racing. The “Green Carpet Gallery” portion of the site documents the celebrities that attended ESPN’s Action Sports and Music Awards.

When a viewer clicks on the Green Carpet Gallery icon, he or she is directed to a photograph of two men grasping hands, which is accompanied by a caption that reads “Colin McKay and Cary Hart share the love.” From there the viewer can click the “next” icon to scroll through the remaining photographs sequentially. There are 17 photographs in all, each featuring one or more celebrities, and each accompanied by a caption.

One shows a woman in a black dress, and is accompanied by a caption that reads “Tara Dakides lookin’ sexy, even though we all know she is hardcore.” Another shows a man with sunglasses, and is accompanied by the caption “Ben Hinkley rocks the shades so the ladies can’t see him scoping.” The photograph of the Knievels is the tenth in the sequence, and it cannot be viewed without first viewing the nine photographs preceding it.

Its caption reads “Evel Knievel proves that you’re never too old to be a pimp.” The Knievels allege that in publishing the photograph and caption on its website, ESPN intended to charge Evel with “immoral and improper behavior” and bring him and his wife into “public disgrace and scandal.” They allege that the photograph and caption, which were posted on ESPN’s website for approximately six days, “exposed [them] to hatred, contempt, ridicule and obloquy that caused [them] to be shunned and avoided and maliciously injured the reputation of Evel Knievel.” And because of the photograph and its caption, they allege, several of Evel’s former clients do not want him associated with their product.

ESPN moved to dismiss the Knievels’ complaint pursuant to Fed.R.Civ.P. 12(b)(6) on the ground that the First Amendment precludes its liability for defamation because no reasonable person would have interpreted the caption as an allegation that Evel was a “pimp” in the criminal sense.

The district court agreed and granted the motion, reasoning that “the 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 Plaintiffs of being involved in criminal activity.” The Knievels moved to alter or amend the judgment pursuant to Fed.R.Civ.P. 59(e), but the motion was denied. The Knievels then noticed this appeal.

They contend that the Montana Constitution guarantees them a jury trial on their defamation claim, and that the district court erred as a matter of law when it dismissed the action. II. We review the district court’s grant of a motion to dismiss de novo. Cervantes v. United States, 330 F.3d 1186, 1187 (9th Cir.2003). When ruling on a motion to dismiss, we accept all factual allegations in the complaint as true and construe the pleadings in the light most favorable to the nonmoving party. Id. We review the district court’s

interpretation of Montana law de novo. Marcy v. Delta Airlines, 166 F.3d 1279, 1282 (9th Cir.1999). In interpreting Montana law, we must follow the decisions of Montana’s highest court. See Olympic Sports Prods., Inc. v. Universal Athletic Sales Co., 760 F.2d 910, 912-13 (9th Cm. 1985). We review de novo the court’s ruling that the statement was not defamatory as a matter of law. Steam Press Holdings, Inc. v. Haw. Teamsters, Allied Workers Union Local 996, 302 F.3d 998, 1005 (9th Cir.2002). III. A.

Montana Law Does Not Entitle the Knievels to a Jury Trial The Montana Constitution provides that “[i]n all suits and prosecutions for libel or slander the truth thereof may be given in evidence; and the jury, under the direction of the court, shall determine the law and the facts.” Mont. Const, art. II, § 7.

The Knievels interpret this provision to mean that they are entitled to a jury trial because they have a “special constitutional right in a libel and slander case in Montana” that guarantees them their “fair day in court.” But Montana’s highest court, which we are bound to follow, interprets the provision differently. The Montana Supreme Court has repeatedly affirmed the ability of judges to dispose of defamation claims where there are no issues of fact warranting a jury trial. Hale v.

City of Billings, 295 Mont. 495, 986 P.2d 413, 418 (1999) (holding that whether a statement is “capable of bearing a defamatory meaning” is an issue that “a court can and should rightfully determine upon a motion for

summary judgment”); Small v. McRae, 200 Mont. 497, 651 P.2d 982, 994-95 (1982) (holding that it is “clearly settled” that “where there is a failure to establish an essential element of the [defamation] cause of action, the case becomes one of law for the Court”); Griffin v. Opinion Publ’g Co., 114 Mont. 502, 138 P.2d 580, 586 (1943) (holding that notwithstanding the ambiguous language of the Montana Constitution “it is for the court and not the jury to pass upon demurrers to the complaint”), overruled on other grounds by State v. Helfrich, 277 Mont. 452, 922 P.2d 1159, 1161 n. 1 (1996).

While our Constitution like that of Missouri, Colorado, South Dakota and Wyoming provides that in libel suits ‘the jury, under the direction of the court, shall determine the law and the facts,’ yet the decisions clearly show that the function of the court and jury is not greatly different in the trial of libel from what it is in other cases. Griffin, 138 P.2d at 586. The Knievels’ argument that they are entitled to a jury trial is untenable in light of the Montana Supreme Court cases to the contrary.

The Knievels point to Hale’s pronouncement that “[ujnless the evidence is so overwhelming that any other conclusion would be unreasonable, the issue of whether the statements were true or false is a determination for the jury alone to make.” Hale, 986 P.2d at 417-18(internal quotation marks omitted). But that language does nothing more than point out that where there is a disputed issue of fact as to the truth or falsehood of a statement, that disputed issue of fact must be submitted to the jury.

It does not stand for the proposition that questions of law or undisputed questions of fact must be submitted to a jury. Hale, like the cases before it, recognized that courts can rule on whether a statement is capable of a defamatory meaning as a matter of law. Even if the Montana Constitution did establish a rule that defamation plaintiffs are entitled to a jury trial in state court, that rule would not bind a federal court exercising its diversity jurisdiction. Under the doctrine of Erie R.R. v.

Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), federal courts sitting in diversity must apply the Federal Rules of Civil Procedure. Hanna v. Plumer, 380 U.S. 460, 470-71, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965) (“The Erie rule has never been invoked to void a Federal Rule [of Civil Procedure].”); see also Herron v. S. Pac. Co., 283 U.S. 91, 94-95, 51 S.Ct. 383, 75 L.Ed. 857 (1931) (holding that a state law requiring the jury to decide the issue of contributory negligence cannot interfere with authority of a federal court to direct a verdict where there are no facts in dispute).

And as every trial lawyer knows, federal courts may decide cases as a matter of law where the complaint fails to allege facts sufficient to state a claim upon which relief could be granted. See Fed. R.CivJP. 12(b)(6). B. The Photograph and Caption Were Not Defamatory as a Matter of Law In enforcing laws that impose liability for mere speech, a right explicitly guaranteed to the people in the United States Constitution, states tread perilously close to the limits of their authority.

Courts have acknowledged the tension between defamation claims and the First Amendment’s protection of speech, and held that when reviewing state-law cases that raise First Amendment issues, appellate courts must “make sure that ‘the judgment does not constitute a forbidden intrusion on the field of free expression.’ ” Bose Corp. v. Consumers Union, 466 U.S. 485, 499, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984) (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 285, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964)); see also Underwager v.

Channel 9 Australia, 69 F.3d 361, 366 (9th Cir.1995) (“Although defamation is primarily governed by state law, the First Amendment safeguards for freedom of speech and press limit state law.”). In order to survive ESPN’s motion to dismiss, the Knievels must not only establish that the photograph and caption about which they complain are “reasonably capable of sustaining a defamatory meaning,” Cochran v.

NYP Holdings, Inc., 58 F.Supp.2d 1113, 1121 (C.D.Cal.1998), aff'd and reasoning adopted, 210 F.3d 1036, 1038 (9th Cir.2000), they must also show that they are not mere “comment within the ambit of the First Amendment.” Id. We can resolve both questions as a matter of law. Id. at 1120; Dodds v. Am. Broad. Co., 145 F.3d 1053, 1065-68 (9th Cir.1998) (dismissing action for failure to state a claim because statements were non-actionable opinion); Dworkin v.

Hustler Magazine, Inc., 668 F.Supp. 1408, 1415 (C.D.Cal.1987) (“It is for the court to decide [whether a statement is actionable defamation] in the first instance as a matter of law.”), aff'd, 867 F.2d 1188, 1193-94 (9th Cir.1989). When evaluating the threshold question of whether a statement is reasonably capable of sustaining a defamatory meaning, we must interpret that statement “from the standpoint of the average reader, judging the statement not in isolation, but within the context in which it is made.” Norse v. Henry Holt & Co., 991 F.2d 563, 567 (9th Cir.1993) (citation omitted).

In Norse, we held that a biographer’s statement that plaintiff, poet Harold Norse, “thought of himself as ‘dark-horse Norse,’ ignored and unpublished,” was not reasonably capable of a defamatory meaning in the context in which it appeared. Norse argued that the sentence implied that he was not published at the time. We disagreed, holding that the essence of the sentence was not that Norse was unpublished, but rather that Norse felt snubbed by the literary community. “In context,” we held, “the word ‘unpublished’ does not mean literally that Norse had never published before 1963.

Rather, it reflects Norse’s own perception of himself as an artist who was unfairly neglected and ignored, a poet who believed that he was not as successful as he deserved to be in his publishing efforts at that stage in his career.” Id. The same reasoning applies in this case.

Although the word “pimp” may be reasonably capable of a defamatory meaning when read in isolation, we agree with the district court’s assessment that “the term loses its meaning when considered in the context presented here.” As discussed in more detail herein, the term “pimp” as used on the EXPN.com website was not intended as a criminal accusation, nor was it reasonably susceptible to such a literal

interpretation. Ironically, it was most likely intended as a compliment. But we need not definitively resolve that issue here because even if the photograph and caption are reasonably capable of a defamatory meaning, they are not actionable under the First Amendment. The First Amendment protects “statements that cannot ‘reasonably [be] interpreted as stating actual facts’ about an individual.” Milkovich v. Lorain Journal Co., 497 U.S. 1, 20, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990) (quoting Hustler Magazine v. Falwell, 485 U.S. 46, 50, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988)).

Courts have extended First Amendment protection to such statements in recognition of “the reality that exaggeration and non-literal commentary have become an integral part of social discourse.” Levinsky’s, Inc. v. Wal-Mart Stores, Inc., 127 F.3d 122, 128 (1st Cir.1997).

By protecting speakers whose statements cannot reasonably be interpreted as allegations of fact, courts “provide[ ] assurance that public debate will not suffer for lack of ‘imaginative expression’ or the ‘rhetorical hyperbole’ which has traditionally added much to the discourse of our Nation.” Milkovich, 497 U.S. at 20, 110 S.Ct. 2695(quoting Falwell, 485 U.S. at 53-55, 108 S.Ct. 876). When determining whether a statement can reasonably be interpreted as a factual assertion, we must examine the “totality of the circumstances in which it was made.” Underwager, 69 F.3d at 366.

First, we look at the statement in its broad context, which includes the general tenor of the entire work, the subject of the statements, the setting, and the format of the work. Next we turn to the specific context and content of the statements, analyzing the extent of figurative or hyperbolic language used and the reasonable expectations of the audience in that particular situation. Finally, we inquire whether the statement itself is sufficiently factual to be susceptible of being proved true or false. Id.

The context in which the statement appears is paramount in our analysis, and in some cases it can be dispositive. See Dworkin, 867 F.2d at 1193(holding that courts must “examine the facts surrounding the publication, the context in which the statements were made, and the nature of the language used”); Koch v. Goldway, 817 F.2d 507, 509 (9th Cir.1987) (“Context does resolve the matter.”). Because the reasonable

interpretation of a word can change depending on the context in which it appears, not all statements that could be interpreted in the abstract as criminal accusations are defamatory. In Greenbelt Coop. Publ’g Ass’n v. Bresler, 398 U.S. 6, 90 S.Ct. 1537, 26 L.Ed.2d 6 (1970), newspaper articles reporting on the contents of a public meeting regarding a pending development permit stated that some people at the meeting characterized the developer’s negotiating position as “blackmail.” Id. at 7, 90 S.Ct. 1537.

The developer recovered in state court for libel on the ground that the articles accused him of the crime of blackmail. The Supreme Court reversed, holding that the statement was protected First Amendment speech because “[n]o reader could have thought that either the speakers at the meetings or the newspaper articles reporting their words were charging [the developer] with the commission of a criminal offense.” Id. at 14, 90 S.Ct. 1537.

On the contrary, it held, “even the most careless reader must have perceived that the word was no more than rhetorical hyperbole, a vigorous epithet used by those who considered [the developer’s] negotiating position extremely unreasonable.” Id. A speaker’s use of “loose, figurative” language can also determine whether his or her statement can reasonably be interpreted as a factual allegation. In Standing Comm. on Discipline of the United States Dist. Court v.

Yagman, 55 F.3d 1430 (9th Cir.1995), we held that an attorney could not be sanctioned for accusing a district judge of being “dishonest” because the other terms the attorney used to describe the judge — “ignorant,” “ill-tempered,” “buffoon,” “sub-standard human,” and “right-wing fanatic”- — -made it clear that the attorney intended only to signal his general contempt for the judge, rather than to accuse him of corruption. Id. at 1440; see also Old Dominion Branch No. 196, Nat'l Ass’n of Letter Carriers v.

Austin, 418 U.S. 264, 284, 94 S.Ct. 2770, 41 L.Ed.2d 745 (1974) (holding that the use of the word “traitor” could not be reasonably interpreted as a representation of fact because it was used “in a loose, figurative sense to demonstrate the union’s strong disagreement with the views of those workers who oppose unionization”); Cochran, 58 F.Supp.2d at 1124-25(holding that a statement that suggested that defense attorney Johnnie Cochran lied and exhibited unethical conduct was not actionable as a matter of law because the statement appeared in an opinion column and the author used “loose, figurative, and hyperbolic” speech throughout the column).

On the other hand, we held that Yagman could be sanctioned for accusing Judge Keller of being “drunk on the bench” because he made that accusation on a separate occasion and there was “nothing relating to the context in which this statement was made that tends to negate the literal meaning of the words he used.” Yagman, 55 F.3d at 1441. 1. Taking Into Account Material Not Alleged in the Complaint In evaluating the context in which the statement appeared, we must take into account “all parts of the communication that are ordinarily heard or read with it.” Restatement (Second) of Torts § 563 cmt. d (1977).

In doing so, we deviate from the general rule that courts, when ruling on a motion to dismiss, must disregard facts that are not alleged on the face of the complaint or contained in documents attached to the complaint. Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n. 19 (9th Cir.1990). Our approach is permissible under the “incorporation by reference” doctrine, which permits us to take into account documents “whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the [plaintiffs] pleading.” In re Silicon Graphics Inc.

Sec. Litig., 183 F.3d 970, 986 (9th Cir.1999) (quoting Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir.1994)) (alteration in original). We have extended the “incorporation by reference” doctrine to situations in which the plaintiffs claim depends on the contents of a document, the defendant attaches the document to its motion to dismiss, and the parties do not dispute the authenticity of the document, even though the plaintiff does not explicitly allege the contents of that document in the complaint. Parrino v.

FHP, Inc., 146 F.3d 699, 706 (9th Cir.1998) (holding that the district court properly considered documents attached to a motion to dismiss that described the terms of plaintiffs group health insurance plan, where plaintiff alleged membership in the plan, his claims depended on the conditions described in the documents, and plaintiff never disputed their authenticity); see also Horsley v. Feldt, 304 F.3d 1125, 1135 (11th Cir.2002) (taking into account newspaper

article containing allegedly defamatory statement under the “incorporation by reference” doctrine where it was “central” to plaintiffs claim, defendant attached it to the motion for judgment on the pleadings, and plaintiff did not contest its authenticity). The rationale of the “incorporation by reference” doctrine applies with equal force to internet pages as it does to printed material. Just as a reader must absorb a printed statement in the context of the media in which it appears, a computer user necessarily views web pages in the context of the links through which the user accessed those pages.

The Knievels attached to their complaint only the photograph and caption that they argue was defamatory, and they do not allege or describe the contents of the surrounding pages in their complaint. ESPN argued below, and on appeal, that viewers accessing the website could not help but to see at least some of the surrounding web pages in order to view the photograph and caption that the Knievels allege to be defamatory.

ESPN attached copies of the pages surrounding the Knievels photograph to its motion to dismiss and included a CD-ROM containing a digital replica of the relevant portions of the EXPN.com website in its supplemental excerpts of record on appeal. The Knievels do not dispute ESPN’s contention that a viewer accessing the Knievels photograph must also access the surrounding pages on the EXPN.com website, nor do they dispute the authenticity of the materials and CD-ROM attached to ESPN’s motion to dismiss.

When browsing the CD-ROM, we found that in order to access the photograph, one must first view, at minimum, the nine photographs that precede it and the EXPN.com home page. Therefore, we take into account the web pages attached to ESPN’s motion to dismiss under the “incorporation by reference” doctrine. 2. The Use of “Loose, Figurative” Language Our first inquiry is into the “broad context” of the statement, which includes “the general tenor of the entire work, the subject of the statements, the setting, and the format of the work.” Underwager, 69 F.3d at 366.

The district court found, and we agree, that the content of the EXPN. com main page is lighthearted, jocular, and intended for a youthful audience. It is equally clear that the subject matter of the page is not merely extreme sports themselves, but the youth culture and style associated with extreme sports.

The page directs the viewer to “[cjheck out what the rockstars and prom queens were wearing,” and offers a “behind the scenes look at all the cool kids, EXPN-style.” Most importantly, however, we observe that the page features slang phrases such as “[d]udes rollin’ deep” and “[kickin' it with much flavor,” neither of which is susceptible to a literal

interpretation, and neither of which one would expect to hear uttered by anyone but a teenager or young adult. A reasonable viewer exposed to the main page would expect to find precisely that type of youthful, non-literal language on the rest of the site. Next, we examine the “specific context and content of the statements, analyzing the extent of figurative or hyperbolic language used and the reasonable expectations of the audience in that particular situation.” Underwager, 69 F.3d at 366. Again, the overwhelming presence of slang and non-literal language guides our inquiry.

The web pages immediately preceding and following the Knievel photo use slang words such as “hardcore” and “scoping,” and slang phrases such as “throwing down a pose,” “put a few back,” and “hottie of the year,” none of which is intended to be interpreted literally, if indeed they have a literal meaning at all. We think that any reasonable viewer would have interpreted the word “pimp” in the same loose, figurative sense as well. See Yagman, 55 F.3d at 1440.

But even if a viewer had interpreted the word “pimp” literally, he or she would have certainly interpreted the photograph and caption, in the context in which they were published, as an attempt at humor. See Hustler Magazine Inc., 485 U.S. at 49, 108 S.Ct. 876(holding that farcical interview published in pornographic magazine in which minister admits to a “drunken incestuous rendezvous” with his mother in an out-house was not actionable because it “could not ‘reasonably be understood as describing actual facts ... or actual events in which [the minister] participated’ ”); Polygram Records, Inc. v.

Superior Court, 170 Cal.App.3d 543, 216 Cal.Rptr. 252, 257 (1985) (holding that an “obvious joke, told during an obvious comedy performance,” was not defamatory as a matter of law). The “Green Carpet Gallery” pokes fun at many of the celebrities it portrays.

One photograph features two women smiling, and is accompanied by the caption “Shannon Dunn and Leslee Olson make it look easy to be cheesy.” Another depicts a man taking a step toward the camera, and is accompanied by the caption “Todd Richards tells the camera man to step off his lady.” Just as no reasonable reader would interpret those captions as allegations of fact, no reasonable reader would interpret the photograph of the Knievels as a serious allegation of criminal wrongdoing. We acknowledge, like the district court did, that taken in isolation and given a literal

interpretation, ESPN’s suggestion that Evel is a pimp is “sufficiently factual to be susceptible of being proved true or false.” See Underwager, 69 F.3d at 366. But we assess the meaning of the word in the context in which it was used. Because the caption cannot reasonably be interpreted literally in this context, the fact that its literal

interpretation could be proven true or false is immaterial. The Knievels correctly point out that the fact that a statement is an attempt at humor does not immunize the speaker against liability for defamation. See Polygram, 216 Cal.Rptr. at 260 (holding that “the jocular intent of the publisher will not relieve him from liability if it is reasonable to not understand the utterance as a joke”) (quoting Arno v. Stewart, 245 Cal.App.2d 955, 54 Cal.Rptr. 392, 397 (1966)).

They argue that notwithstanding ESPN’s attempt at humor, the word “pimp” is by its very nature always an insult in a “proper law-abiding society.” The writer of this appellate brief graduated from a pool hall he attended every day during his high school years and he most certainly did not lead a sheltered life across the tracks on the north side of his city. “Pimp” was an insult then and always has been in a proper law-abiding society.

But that argument, based entirely on the anecdotal childhood experience of the Knievels’ lawyer, utterly fails to address the context in which the word appeared, and context can be dispositive as to whether or not a statement is actionable under the First Amendment. See Koch, 817 F.2d at 509 (“the context of a statement may control whether words were understood in a defamatory sense”). Read in the context of the satirical, risque, and sophomorie slang found on the rest of the site, the word “pimp” cannot be reasonably interpreted as a criminal accusation. IV.

For the foregoing reasons, we AFFIRM the judgment of the district court. . See http://www.evelknievel.com (last visited July 20, 2004). . The Knievels’ notice of appeal does not reference the underlying order dismissing their claims, but only the order denying their motion to alter or amend the judgment. Ordinarily a notice of appeal must designate the order that is being appealed. Fed. R.App. P. 3(c)(1)(B).

We have permitted parties to litigate an order not listed in the notice of appeal, however, where (1) the intent to appeal that order can be "fairly inferred" and (2) the appellee was not prejudiced by the mistake. Lolli v. County of Orange, 351 F.3d 410, 414 (9th Cir.2003). The Knievels made it clear in their opening brief that they intended to appeal the order dismissing the action, not merely the denial of their motion to alter or amend the judgment.

ESPN was not prejudiced by the Knievels’ failure to identify the order dismissing the action because the Knievels addressed the merits of their claim in their opening brief, ESPN didn’t bring the oversight to our attention, and ESPN addressed the merits in its brief as well. See McCarthy v. Mayo, 827 F.2d 1310, 1314 (9th Cir.1987). Therefore, we interpret the Kniev-els' notice of appeal as an appeal of the underlying order. . "Rollin’ deep” means ”[d]riving along in a cool car.” http:// www.voxcommunica-tions.com/03rollindeep.htm (visited April 9, 2004). .

"Kick it” is a phrase used in rap music to mean "to give to (someone) or let (someone) have it.” 2 J.E. Lighter, Random House Historical Dictionary of American Slang 349 (Random House 1997) ("Random House Vol. II”). "Kick flavor” means "to perform; to be entertaining.” Id. at 774. . "Hardcore” can have multiple meanings, depending on the context. Compare Random House Vol. II, at 31 (defining term to mean “unswervingly dedicated”); with http://www.slangsite.eom/slang/H.html (visited April 16, 2004) (noting that the word "hardcore” can be ”1. Used to describe anything [that is] cool or liable to hurt you 2.

Used to describe a person that is into something more than everyone else, usually in a tough sense[, or] 3. Referring to music of the ’hardcore’ genre”). . To "scope” is to evaluate a member of the opposite sex visually. Richard A. Spears, Ph. D., NTC's Dictionary of American Slang and Colloquial Expressions 333 (NTC Publishing Group 2d ed.1995). . The term "hottie” refers to "an attractive or sexually promiscuous person of the opposite sex, usually a woman.” Random House Vol. II, at 185. . "Pimp” has traditionally meant a man in charge of prostitutes.

Webster’s New World Dictionary 1025 (2d ed.1986) (defining "pimp” as "a man who is an agent for a prostitute or prostitutes and lives off their earnings.”). But ”[t]oday it’s a very ambiguous term, used as either a compliment or an insult towards a male.

In its positive form, it means that the person is 'cool.' In its negative form, it insults their attitudes, clothing, or general behavior.” http://www.ocf.berke-ley.edu/~wrader/slang/p.html (visited April 9, 2004); see abo http://www.slang-site.com/slang/P.html (visited April 16, 2004) (noting that the term "pimp” can also be used "when complimenting a person on their mastery of the subject matter”).