Opinion analysis: Court bolsters statutory protection for air safety tipsters
In its opinion in favor of a regional air carrier yesterday, the Court made two things clear. First, airlines cannot be stripped of statutory immunity for safety reports made to the Transportation Safety Administration unless those reports are found to be materially false, and second, once the Court gets its hands on defamation cases, it does not like to let them go.
The question before the Court in Air Wisconsin Airlines Corp. v. Hoeper was whether an airline sued for reporting to the TSA that one of its pilots was “mentally unstable” was improperly denied immunity from civil suit under the Aviation and Transportation Security Act (ATSA). Reversing the Colorado Supreme Court, the Justices found that the airline was entitled to immunity for this materially true statement, overturning a jury’s $1.2 million defamation award to disgruntled pilot William Hoeper.
Tensions between Hoeper and his Air Wisconsin bosses had been building for some time when the pilot went to Virginia to take a simulator test required for certification on the company’s new aircraft. Hoeper had failed previous tests and knew that if he failed again he would be fired. Midway through the test, Hoeper claimed that the administrator was manipulating the simulator against him. He raised his voice, swore at the tester, and left to call a union representative. The airline booked him on a flight home to Denver later that day. Before the flight took off, Air Wisconsin personnel contacted TSA with a report about Hoeper, a federal flight deck officer who was authorized to carry a gun. Air Wisconsin stated that Hoeper “may be armed,” that the airline was “concerned about his mental stability and the whereabouts of his firearm,” and that an “[u]nstable pilot in [the] FFDO program was terminated today.” TSA responded by calling Hoeper’s plane back from the runway, boarding the flight to remove him, searching him, and asking about his gun. Hoeper was fired the next day, and eventually sued Air Wisconsin for defamation.
The ATSA provides that airlines are immune from civil suits for safety alerts to TSA unless they are made with “actual knowledge” that the report is “false, inaccurate, or misleading” or “with reckless disregard as to the truth or falsity of that disclosure.” The trial court submitted the question of Air Wisconsin’s ATSA immunity to the jury, instructing jurors that immunity was unavailable if the statements were known to be false, inaccurate, or misleading, or were made with reckless disregard of truth or falsity. The instructions did not state that materially true statements were entitled to immunity, and the jury found that Air Wisconsin was not immune. On review, the Colorado Supreme Court specifically declined to find whether the statements were true or false, holding that Air Wisconsin’s recklessness in making the statements was sufficient to strip them of immunity. It later affirmed the jury’s defamation verdict.
In an opinion by Justice Sotomayor, the Court held unanimously on Monday that the Colorado Supreme Court erred in suggesting that true statements, recklessly made, were not entitled to immunity under the ATSA. The statute’s immunity-stripping provisions were based on the actual malice rule of New York Times v. Sullivan, which has been interpreted over time to require that statements be materially false in order to support a finding of civil liability. Thus, Congress can be presumed to have intended that only materially false statements would fall outside the statutory immunity of the ATSA, the Court held.
After clarifying that ATSA immunity is lost only for material falsehoods, the unanimous Court then explained that the materiality inquiry for purposes of the statute is distinct from the more general materiality standard for defamation cases. Because the materiality of a falsehood depends on the impression the words would leave with the person hearing them, material falsehoods for ATSA immunity purposes depend on how a reasonable TSA agent would respond to the relevant language. In other words, as Justice Sotomayor explained in her opinion for the Court, if the TSA receives a tip that “my adulterous husband is carrying a gun onto a flight,” and the husband is not adulterous, that falsehood would not be material for ATSA purposes because it would not affect the TSA’s safety response. It would, however, be material for defamation purposes because it would affect the husband’s profile in the community.
Finally, Justice Sotomayor, joined by five members of the Court, applied this materiality standard to the Air Wisconsin tip and determined that it was not materially false and therefore did not justify the withdrawal of ATSA immunity from Air Wisconsin. The majority explained that TSA would have responded no differently to the actual Air Wisconsin report that Hoeper “may be armed,” than it would have to a more thorough report that Hoeper was authorized to carry a gun while piloting a plane and that there was no information on whether Hoeper was armed or unarmed. Either way, “[a] reasonable TSA officer . . . would have wanted to investigate whether Hoeper was carrying a gun,” the majority concluded.
As for the report that Hoeper was “unstable,” the majority held that a more measured report that Hoeper had yelled and cursed at the test administrator would not have led TSA to act differently. The difference between the two reports was “a slip of the tongue.” More important, withdrawing immunity for the more impressionistic report would cause airlines in the future to pull their punches with the TSA, which is precisely the behavior Congress was trying to prevent by providing immunity.
Justice Scalia, however, joined by Justices Thomas and Kagan, dissented from this portion of the opinion. Scalia noted that in awarding $1.2 million to the pilot, the jury found Air Wisconsin’s statements about him to be false. If the jury found the statements to be false, he contended, it is conceivable that the jury could have found that the TSA would have responded differently to a more accurate report than it did to the report Air Wisconsin made.
There is a difference, he suggested, between a person who shows “heated but commonplace . . . anger, on the one hand, and on the other, an individual whose colleagues regard him as ‘mentally unstable.’” A jury could have found that TSA would have responded differently to the former than it would have to the latter. If so, the report would have been materially false for purposes of ATSA immunity, and the defamation verdict consequently could be allowed to stand.
This split may be the most interesting aspect of the case within the larger context of the Court’s speech injury jurisprudence. In defamation and other speech injury cases, the Court has a pronounced penchant for applying newly announced rules of law to the facts at hand rather than remanding to the lower court for reconsideration. Justice Sotomayor acknowledged for the majority that remands are considered especially prudent in fact-sensitive cases. But, she explained, they are less valued in the First Amendment context, where “this Court’s role in marking out the limits of a [First Amendment] standard through the process of case-by-case adjudication is of special importance.”
The Court has long exhibited a suspicion of jury competence in cases where the First Amendment may be in tension with common-law causes of action such as defamation, often remarking on what it seems to consider a regrettable tendency of juries to be swayed by emotion and sympathy for defamation plaintiffs. It seemed to harbor the same suspicion in this case, where the applicable speech protection was statutory rather than constitutional.
Justice Scalia’s dissent was notable for pushing back explicitly on the Court’s habit of taking speech cases away from the lower courts. He suggested that in doing so, the Court is imposing its own sensibility in causes of action that have historically been seen as opportunities for community members to weigh in on the meaning and impact of speech. He observed that the majority has “reache[d] out to decide a factbound question better left to the lower courts, and then procee[ded] to give the wrong answer.” This “wrong” result, he concluded, illustrates “the wisdom of preserving the jury’s role in this inquiry, designed to inject a practical sense that judges sometimes lack.”
PLAIN ENGLISH SUMMARY
In 2001, Congress created the Transportation Security Administration to take charge of airline safety. To encourage airline cooperation with TSA, Congress enacted a law providing airlines and their employees with immunity for reporting safety concerns to the agency. However, Congress provided that if airlines passed along safety tips with “actual knowledge” that they were “false, inaccurate, or misleading” or with “reckless disregard” as to their truth or falsity, they would lose their immunity.
In a case brought by a disgruntled pilot who alleged that his airline employer had defamed him by reporting to TSA that he was “unstable” and “might be armed,” the Court clarified that statutory immunity could only be lost if tips were “materially false”; tips that were true but reckless were still entitled to immunity, as were tips that were false but immaterial. The Court explained that to be materially false in a way that wiped out immunity, a tip to TSA would have to cause a reasonable safety agent to respond differently than he would have responded to the truth. Applying this standard to the pilot’s case, the Court determined that because the pilot’s temper had flared hours before the flight, and because he was authorized to carry a gun, his employer did not pass on a material falsehood when it told TSA that he was “unstable” and might be armed. As a result, the airline employer should have been cloaked with immunity, and the $1.2 million defamation award a jury gave the pilot had to be overturned.
Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondent in this case.