If you see something, say something – as long as that something is materially true.

If you should ever see something suspicious before boarding a flight, America’s highest court wants you to say something about it.


The U.S. Supreme Court recently held in Air Wisconsin Airlines Corp. v. Hoeper, 134 S. Ct. 852 (2014) that statements made to the Transportation Safety Authority were entitled to immunity under the Aviation and Transportation Security Act (ATSA), 49 U.S.C. § 44941, and that materially truthful statements regarding safety threats are entitled to immunity, irrespective of any reckless disregard as to their truthfulness.

The case began with an air carrier that asserted statutory immunity from a libel claim brought by a former pilot for the carrier, William Hoeper, who the air carrier reported to the Transportation Security Administration as a potential security threat in 2004.  Air Wisconsin Airlines Corp. v. Hoeper, __P.3d__, 2012 WL 907764 (Colo. 2012).  At issue in the case was the interpretation of the ATSA, which gives immunity from civil liability to airlines and airline employees who report threats to air security.

Hoeper was an employee of Air Wisconsin, and the air carrier reported him to the Transportation Safety Administration as a possibly armed and possibly unstable threat. Earlier in the day, the pilot failed a flight simulation test and lost his temper, shouting and cursing at Air Wisconsin employees conducting the test. Air Wisconsin had previously stated that it would fire the pilot if he failed the test. After Hoeper’s outburst, employees of Air Wisconsin discussed his behavior and the fact that a TSA program allowed him to carry a weapon on an aircraft. An employee then reported the pilot to TSA as mentally unstable, potentially armed, and disgruntled over having been fired that day.

Hoeper proceeded to sue for defamation. Air Wisconsin moved for summary judgment based on the ATSA immunity provisions, but the trial judge denied the motion on the grounds that “the jury was entitled to resolve disputed issues of fact that controlled the determination of immunity.” After rejecting Air Wisconsin’s claim of immunity, the jury found that the airline’s statements to the TSA were defamatory and made with actual malice. The trial judge entered the jury’s verdict of $1.4 million, and the airline appealed. A Colorado court of appeals affirmed, holding that the jury’s finding of actual malice was supported by clear and convincing evidence, and that statements at issue were neither opinion nor substantially true.

The Colorado Supreme Court affirmed. Although it found that the trial court erred in “submitting the immunity question to the jury” rather than determining the question as a matter of law before trial, the Colorado Supreme Court held that the error was harmless because Air Wisconsin’s statements were not entitled to immunity. Under the ATSA, an air carrier is not entitled to immunity for reporting a security threat to TSA if the report is made with knowledge or reckless disregard of its falsity. The court determined “based on the record evidence” that Air Wisconsin’s defamatory statements were made with reckless disregard as to their falsity. Indeed, the court found that clear and convincing evidence supported the jury’s finding of actual malice. The court also determined that the statement that the pilot was “mentally unstable” and thus a threat to airline security was not a protected opinion but instead implied a false assertion of fact. The court found “substantial and sufficient” evidence to support the jury’s determination that the statements were false.

Three justices, dissenting in part, contended that the court’s opinion “threatens to undermine the federal system for reporting flight risks.” The dissent contended that the air carrier’s statements about the pilot were substantially true, because the pilot had indeed had an angry outburst during a training session and was facing termination at the time Air Wisconsin employees reported him to TSA. According to the dissent, Air Wisconsin thus was entitled to immunity as a matter of law.

U.S. Solicitor General Donald Verrilli argued that the decision would “chill other air carriers from timely providing the government with critical information about threats to aviation security,” and it didn’t take long for Air Wisconsin to file a petition with the U.S. Supreme Court urging that the Colorado Supreme Court’s decision be reviewed.   The Court granted the petition limited to the question whether courts may deny an air carrier immunity under the ATSA without determining that the air carrier’s disclosures to TSA were materially false.

In a unanimous vote, the justices overturned Hoeper’s defamation judgment.  Hoeper had argued all along that Air Wisconsin should have qualified its statement to the TSA by adding that it had no reason to think he was actually carrying a firearm.  The Court agreed that “Air Wisconsin’s statement could have been misinterpreted by some,” but the Court ultimately rejected his argument – not only because the confusion it suggests was not only relatively immaterial, but because the rationale for the law required it.

Hoeper’s demand for such precise wording would vitiate the purpose of ATSA immunity: to encourage air carriers and their employees, often in fast-moving situations and with little time to fine-tune their diction, to provide the TSA immediately with information about potential threats. Baggage handlers, flight attendants, gate agents, and other airline employees who report suspicious behavior to the TSA should not face financial ruin if, in the heat of a potential threat, they fail to choose their words with exacting care.

The Court concluded that Congress had written the ATSA specifically to shield air carriers from liability in situations just like the one faced by Air Wisconsin.

By incorporating the actual malice standard into §44941(b), Congress meant to give air carriers the “breathing space” to report potential threats to security officials without fear of civil liability for a few inaptly chosen words.  To hold Air Wisconsin liable for minor misstatements or loose wording would undermine that purpose and disregard the statutory text.

Though the vote as to the outcome of the decision was unanimous, Justices Scalia, Kagan, and Thomas dissented on whether the Court should have decided “a factbound question better left to the lower courts.”  But the dissent still agreed that an airline may not be denied immunity for a report made to the TSA absent a finding that the report was materially false.

And so, there it is – if you see something, say something, because the threat of a defamation suit isn’t quite what it used to be under the ATSA.


3 thoughts on “If you see something, say something – as long as that something is materially true.

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