Argument preview: Revisiting the balance between speech and reputation in the context of airline security
As the fiftieth anniversary of New York Times v. Sullivan approaches, the Court is poised to revisit the balance between speech and reputation in a case that pits a humiliated pilot against the regional airline which alerted TSA that he might pose a safety threat. Sullivan essentially created a bifurcated defamation tort, so that speech published with “actual malice” was far more susceptible to tort liability than speech published without that level of fault. Actual malice does not refer to ill will on the part of the speaker, but instead to the knowledge that he is making a false statement or the reckless disregard of falsity. On December 9, the Court will hear oral argument in Air Wisconsin Airlines Corp. v. Hoeper, a case involving the interpretation of a federal statute designed to encourage airlines to report suspicious behavior by immunizing them from civil liability for those reports unless they were made with Sullivan-style actual malice. The case unpacks the relationship between falsity and malice when the speaker has complete knowledge of the facts at hand and chooses extreme words to describe them.
William Hoeper had been a pilot for Air Wisconsin for six years when he sought certification to fly a new type of aircraft for the regional carrier. The Air Wisconsin officials who managed the new fleet allegedly disliked Hoeper and attempted to block his certification by manipulating his simulation tests so that he would fail. After quitting a simulator test in Virginia that was his “last chance” to retain his job, Hoeper accused the tester of railroading the exam and headed to the lobby of the building, firing expletives along the way. Airline personnel booked him a flight home and drove him to the airport.
Several hours elapsed before Hoeper boarded the flight, during which the test administrator reported the results to an airline official in Wisconsin, explaining that Hoeper was very angry. They recalled that as a federal flight deck officer, Hoeper owned a gun. The carrier eventually decided to advise TSA of the situation. The report to TSA stated that Hoeper “was a [flight deck officer] who may be armed. He was traveling . . . later that day and [Air Wisconsin] was concerned about his mental stability and the whereabouts of his firearm”; it also indicated that Hoeper was “[u]nstable” and had been “terminated today.” When it received the report and realized that Hoeper had already boarded his flight, TSA launched a “hijack response,” pulling the airplane from the runway back to the gate, boarding the plane to remove Hoeper and unpacking his luggage on the jet bridge in a search for a possible firearm.
Hoeper sued Air Wisconsin for defamation, intentional infliction of emotional distress, and false arrest. A Colorado jury awarded him a total of $1.4 million in compensatory and punitive damages on the defamation claim. At trial, Air Wisconsin unsuccessfully moved for summary judgment and for a directed verdict, claiming it was immune from liability under the Aviation and Transportation Security Act (ATSA). That statute provides that airlines reporting suspicious transactions to TSA cannot be held civilly liable under state law unless their reports are “made with actual knowledge that the disclosure was false, inaccurate, or misleading” or with “reckless disregard as to the truth or falsity of that disclosure.”
The trial court held that ATSA immunity was a question of fact for the jury because the jury was solely responsible for determining whether the report was false or misleading; the jury did not grant immunity. The appellate court in Colorado agreed that immunity was a jury question. The Colorado Supreme Court, in a four-to-three decision, held that immunity was a question of law for the court, but that the error below was harmless because Air Wisconsin was not entitled to immunity. The state high court reasoned that for immunity purposes, the mere fact that Air Wisconsin’s statements overstated the situation was an indication of reckless disregard for the truth sufficient to strip them of ATSA immunity; later in the opinion, the court declined to overturn the jury’s determination that the statements were false.
Air Wisconsin filed a petition for certiorari, which the Court granted on June 17, 2013.
Air Wisconsin is essentially suggesting that the Colorado high court found actual malice without finding falsity, in contravention of the Sullivan scheme incorporated into the statute. The court withheld immunity after finding that Air Wisconsin’s report was an “overstatement” that satisfied the “reckless disregard” prong of the statute. Without explicitly determining whether Air Wisconsin’s statements were false, the court determined that Air Wisconsin created the “overall implication” that “Hoeper was so unstable that he might pose a threat to the crew and passengers of the airplane on which he was scheduled to fly back to Denver,” notwithstanding that the behavior of the airline staffer who made the report “belie[d that] claim.” This approach, the airline now argues, impermissibly allowed civil liability for true statements. Further, Air Wisconsin argues that mere “overstatements” do not strip it of ATSA immunity because the Sullivan actual malice standard requires material falsehoods. Air Wisconsin and the federal government (which filed an amicus brief in support of the airline’s position) join forces to show that the statements here were not materially false. The airline urges primarily that the report was a reasonable summary of its concerns, and that any inaccuracies were “picayune.” The government takes the lead in pressing a novel definition of materiality for purposes of this statute: namely, that a statement cannot be considered materially false for ATSA purposes unless it would have altered the safety response ordered by the TSA personnel who received the report.
In response, Hoeper claims that Air Wisconsin’s representation of the Colorado Supreme Court’s holding – that true statements can be the basis for liability if made recklessly – is a distortion of that court’s analysis. The Colorado court bypassed the issue of the statement’s veracity, Hoeper contends, because it was essentially analyzing whether the airline had the requisite culpability if the statements were found to be false. Thus, Air Wisconsin is tilting (for the first time in this litigation, Hoeper contends) against a straw man in urging the Court to reject a rule that statements which are reckless but true are entitled to immunity. Further, Hoeper points out that the lower court did not condone punishment of a true statement because it ultimately affirmed the jury’s finding that Air Wisconsin’s statements were materially false. Bringing up the rear is Hoeper’s argument that Air Wisconsin’s statements were materially false because they conveyed the impression that he “was so mentally unstable as a result of his recent termination that he might use a gun . . . to injure passengers or commandeer a plane,” even though a number of Air Wisconsin employees testified that they never considered him a safety threat.
The Court has tended to be wary of tort actions that cramp speech on matters of public concern, and air safety clearly fits that category. Thus, there is a good chance the Court will be receptive to arguments that ATSA bars civil liability for airline safety reports that are anything short of fictional. But one of the chief difficulties posed by this case is the fallacy inherent in Sullivan itself – that truth and falsity are binary propositions. When the truth-falsity stakes are so high – constitutional protections or statutory immunity may ride on them – what is a court to do with statements like these that are neither gospel renditions nor bald-faced lies? The Court, to date, has conceptualized “truth” generously in order to make more space for speech, especially in classic news reporting situations in which journalists are forgiven for imperfect word choices when acting as conduits of information between third-party sources and news consumers (for example, Time, Inc. v. Pape, Masson v. New Yorker, Bose v. Consumers Union). So it’s not surprising that Air Wisconsin and the government are framing the statements as substantially true in order to bring themselves within the Court’s speech-protective canopy.
Notably, however, Congress did not replicate Sullivan’s actual malice rule precisely when it wrote the ATSA. Instead, it appeared to leave slightly more room for civil liability when statements fall into the twilight region between truth and falsity by withholding immunity not just for knowingly false statements, but also for knowingly “inaccurate or misleading” statements. That statutory language may afford Air Wisconsin less latitude than the paradigmatic Sullivan journalist, both because the malice definition is subtly different and because — unlike most journalist-defendants — the carrier was both the source of the information and the speaker. Thus, any ambiguities in its description cannot be attributed to unreliable or vague information, but instead were the product of its own involvement and language. Put another way, what the Colorado Supreme Court described as “reckless” regardless of truth could be described as “knowingly misleading.”
This posture may explain Air Wisconsin’s novel argument that any inaccuracies in the TSA report were immaterial unless they would have triggered a different threat response by the agency. Given the Court’s solicitude for speech, its likely sympathy for airline security concerns, and its enduring skepticism about jury findings in speech-tort cases, this argument may carry the day. But it overlooks the purpose of stripping Air Wisconsin or other carriers of immunity for culpably false or misleading statements, which is to allow individuals to vindicate interests like reputation that may have been infringed by the suspect speech. Here, the jury appeared to accept Hoeper’s evidence at trial that hundreds of pilots heard about the TSA report, assumed he “went off the deep end,” and effectively “blackballed” him from the industry as a result. Essentially, they determined that the falsehoods were material for the pilot community who determined Hoeper’s reputation. Limiting materiality to the community of TSA agents could be said to read out of ATSA the door to civil liability for “misleading” speech.