SCOTUS, the ATSA and actual malice

[quincy]

Before people get ready to board airplanes for travels this holiday season, they might be interested in reading a bit about a defamation suit that will be heard before the United States Supreme Court on December 9 of this year.

The original case, William Hoeper v Air Wisconsin Airlines Corp, involved an Air Wisconsin pilot and an Air Wisconsin manager. The pilot, Hoeper, sued the manager, Pat Doyle, and the Airlines, after Doyle reported Hoeper to the Transportation Security Administration as a potential security threat. Hoeper was arrested as a result of the manager's report, which stated Hoeper was a disgruntled ex-employee of the airlines, he was mentally unstable and, because he was legally allowed to carry a weapon on flights, he was a threat to airline safety.

The pilot was awarded in Colorado a $1.4 million judgment against Appleton Wisconsin-based Air Wisconsin Airlines for defamation, with the judgment upheld on appeal to the Colorado Supreme Court. Air Wisconsin petitioned the U.S. Supreme Court for review.

This review is based on Air Wisconsin's claim that the Colorado Supreme Court failed to consider "substantial truth" (or material falsity) when upholding the lower courts award of damages.

The issue to be addressed by the U.S. Supreme Court is qualified immunity and the "actual malice" standard in defamation cases. Information on the case can be accessed at http://www.scotusblog.com/case-files/cases/air-wisconsin-airlines-corp-v-hoeper/.

Actual malice is defined, in libel and slander cases, as the intentional publication (communication) of a false statement in bad faith or with ill intent, with knowledge of the falsity of the statement or with a willful and reckless disregard for its truth or falsity. Actual malice needs to be shown in defamation cases in order to defeat any qualified immunity offered those who report criminal acts, threats of criminal acts or suspicions of criminal acts (matters of public concern).

The Airlines has said that, if the Colorado ruling is upheld, airline security could be compromised, as carriers may be reluctant to, or refuse to, report threats of security for fear of being sued for defamation.

 

[justalayman]

isn't there some tort, maybe not defamation but something akin to it, where although the published statement is true, it did cause damage but due to the intent of the publisher being malicious or with intent to cause injury it rises to the level of be tortious? Seems like there must be an element showing there was no valid purpose for the publication other than the intent to injure.

Hoeper was arrested as a result of the manager's report, which stated Hoeper was a disgruntled ex-employee of the airlines and, because he was legally allowed to carry a weapon on flights, he was a threat to airline safety.

If that is what was actually said, it is obvious there was intent to cause harm unless the speaker absolutely believed the claim. Not seeing how that would be a reasonable belief. It is speculation beyond reasonable, unless he knows something nobody else knows.


but why would the guy be arrested? Regardless of the statement, if he was otherwise legally allowed to carry a weapon, why would him carrying a weapon result in an arrest. No PC without something more.

 

[FlyingRon]

Actually, the hairs are being split here. The case actually involves both actual falsity and malice. It is clear both happened. The issue however is whether the Colorado court erred in not assessing the falsity of the statements in busting the ATSA immunity. So at best, this is going to be remanded back to court to evaluate the falsity in determining if the ATSA immunity could be broken. Almost certainly if remanded it will still end up busting the immunity. This case was with malice, falsity, in retribution for labor activities, and whole number of outright unconscionable behavior that defies any lame attempt at claiming the airline should be civilly immune.

 

[quincy]

Actually, the hairs are being split here. The case actually involves both actual falsity and malice. It is clear both happened. The issue however is whether the Colorado court erred in not assessing the falsity of the statements in busting the ATSA immunity. So at best, this is going to be remanded back to court to evaluate the falsity in determining if the ATSA immunity could be broken. Almost certainly if remanded it will still end up busting the immunity. This case was with malice, falsity, in retribution for labor activities, and whole number of outright unconscionable behavior that defies any lame attempt at claiming the airline should be civilly immune.

I respectfully disagree, FlyingRon.

Instead of listing my reasons for disagreeing here, you can view the Amicus Brief submitted by The Reporters Committee for Freedom of the Press, et al, accessible through the link I provided.

I believe the immunity should have held.

 

[TigerD]

Thank you. I'll read up on this case after finals.

DC

 

[quincy]

Thank you. I'll read up on this case after finals.

DC

Good luck on your finals, DC.

 

[FlyingRon]

I respectfully disagree, FlyingRon.

Instead of listing my reasons for disagreeing here, you can view the Amicus Brief submitted by The Reporters Committee for Freedom of the Press, et al, accessible through the link I provided.

I believe the immunity should have held.

I've read it. I don't think there is anything in contradiction to what I have said.
Clearly the lower court ruling is incorrect. I do not disagree that there needs to be both falsity and malice here.
My comments are that I believe the lower court record most definitely indicates both were present even if the lower court didn't consider both of them in the actual decision.

Upon remand to consider both, I suspect that the immunity will still be overridden. This case is full of the worst aspects of hiding behind immunity.

 

[quincy]

I've read it. I don't think there is anything in contradiction to what I have said.
Clearly the lower court ruling is incorrect. I do not disagree that there needs to be both falsity and malice here.
My comments are that I believe the lower court record most definitely indicates both were present even if the lower court didn't consider both of them in the actual decision.

Upon remand to consider both, I suspect that the immunity will still be overridden. This case is full of the worst aspects of hiding behind immunity.

I believe the immunity should hold, as the report made by Doyle to the TSA about Hoeper was substantially true - the gist of the report was true. There was a concern for the safety of the flight Hoeper was scheduled to board.

Hoeper was returning to Colorado where his job would be terminated. He was aware of this fact. Prior to his flight, Hoeper had expressed a great deal of anger toward both Doyle and the airlines, and he was potentially armed.

The concern expressed by Doyle was not an invented concern.

Actual malice in a defamation claim is an awfully high burden to meet, with good reason.

But, I guess, time will tell.

 

[FlyingRon]

I believe the immunity should hold, as the report made by Doyle to the TSA about Hoeper was substantially true - the gist of the report was true. There was a concern for the safety of the flight Hoeper was scheduled to board.

Hmm.. we seem to have a difference of opinion. The statement was materially false in my opinion and Doyle knew it to be false. It was done specifically with malice in retaliation for Hoeper threatening to make a union complaint. Doyle then engaged in a illegal pattern of conduct to conceal the statements were maliciously false.
This wasn't even discretionary opinion on Doyles fault, it was a clear action to maliciously damage Hoeper in retaliation.

 

[quincy]

Hmm.. we seem to have a difference of opinion. The statement was materially false in my opinion and Doyle knew it to be false. It was done specifically with malice in retaliation for Hoeper threatening to make a union complaint. Doyle then engaged in a illegal pattern of conduct to conceal the statements were maliciously false.
This wasn't even discretionary opinion on Doyles fault, it was a clear action to maliciously damage Hoeper in retaliation.

Well, you agree with the Colorado jury, at any rate.

The problem is that the case never should have reached a jury. The trial court should have reviewed the statements made to the TSA by Air Wisconsin and judged them immune from civil action under the ATSA. Qualified immunity should protect from liability those statements made in the public interest, and security issues on airlines are public interest concerns.

The actual statements that were made by Wisconsin Airlines to the TSA appear to be substantially true (and, with the substituting of words done by the Colorado Supreme Court, the Court in an odd way confirmed that fact). As provided to the jury, the statements Air Wisconsin made to the TSA were as follows: "[Hoeper] was an FFDO who may be armed. He was traveling from [Dulles to Denver] later that day and we were concerned about his mental stability and the whereabouts of his firearm" and "Unstable pilot in FFDO program was terminated today."

Colorado's Supreme Court Opinion can be read at http://lawyersusaonline.com/wp-files/pdfs-3/air-wisconsin-airlines-corp-v-hoeper.pdf. I found Justice Eid's Dissent interesting.

I agree with you that there is a background that can make one question the motives of Doyle and Air Wisconsin in making the report. But the decision to make the report to the TSA was not done without some thought and discussion beforehand of prior acts of violence committed by disgruntled airline employees. Of course, I know the delay in making the report can be looked at two ways, with one way being that any threat to airline safety was not considered a serious threat.

 

[quincy]

Time allows for a brief update. The US Supreme Court issued their Opinion on January 27.

The US Supreme Court found that a qualified immunity from civil actions is provided airlines and airline employees under the Aviation and Transportation Security Act (49 USC §4490 et seq) and that the only way to defeat this immunity is with a showing of actual malice.

The Court held that the ATSA immunity cannot be denied to statements that are materially true. The Court found that the Colorado Supreme Court's analysis of material falsity was incorrect and that Air Wisconsin is entitled to immunity as a matter of law.

The Colorado Supreme Court decision has been reversed and the case remanded. A petition for rehearing was filed last week (February 21).

The US Supreme Court 6-0 Opinion, delivered by Justice Sotomayor, can be read by using the link provided in my first post.