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Angry pilot case gives rise to defamation immunity claim

PWASHINGTON — In a case that pits First Amendment defamation principles against statutory immunity rules, the U.S. Supreme Court will address whether an airline can face liability for reporting that a plane passenger — one of the airline’s own pilots ­— might be armed and mentally unstable.

Air Wisconsin Airlines Corp. v. Hoeper, No. 12-315, stems from an angry outburst by Air Wisconsin Airlines pilot William Hoeper while he was taking a test to determine his ability to fly a new type of plane. Hoeper, who claimed that a test administrator was deliberately trying to sabotage his results, stood up and yelled profanities before leaving the testing site.

When Hoeper went to the airport to catch a flight from Denver, where the test was administered, to his home in Virginia, the test administrator contacted an Air Wisconsin supervisor to report Hoeper’s behavior. The supervisor, who did not witness Hoeper’s outburst, in turn contacted Transportation Security Administration officials to alert them that Hoeper was a pilot who was authorized to carry firearms on aircrafts, the supervisor was “concerned about his mental stability and the whereabouts of his firearm,” and Hoeper was an “unstable pilot” who had been fired that day.

As a result of the call the plane that Hoeper was aboard, which had been taxiing in preparation for takeoff, was called back to the gate and Hoeper was escorted off by TSA officers. After it was determined that he was neither armed nor a threat, he was allowed to take the next flight home.

Hoeper filed suit in Colorado state court alleging defamation. The airline claimed immunity from suit under the Aviation and Transportation Security Act, which provides in part: “Any air carrier [or] employee … who makes a voluntary disclosure of any suspicious transaction relevant to a possible violation of law or regulation, relating to air piracy, a threat to aircraft or passenger safety, or terrorism … shall not be civilly liable to any person under any law or regulation of the United States, any constitution, law, or regulation of any State or political subdivision in of any State, for such disclosure.”

The law does provide an exception to civil immunity for statements made “with actual knowledge that the disclosure was false, inaccurate, or misleading” or made “with reckless disregard as to the truth or falsity of that disclosure.”

A jury awarded Hoeper $1.5 million in damages. The state Court of Appeals affirmed, and the Supreme Court of Colorado held that while the trial court erred in sending the immunity question to the jury, the record supported a finding that the supervisor’s statement to the TSA was made with reckless disregard for its truth or falsity.

The Supreme Court granted certiorari to decide whether ATSA immunity can be denied absent a determination that the report was materially false.

Real time reporting

Jonathan F. Cohn, a partner in the Washington office of Sidley Austin LLP, argued on the airline’s behalf that subjecting airlines and their employees to civil defamation liability for reporting a potentially dangerous situation would put passengers in jeopardy.

“These reports are being made by airline employees [who] who are being told by TSA, they have to report in real time, without investigation, without calling their lawyer,” Cohn said.

When Cohn argued that the lower court erred in failing to instruct the jury that a statement must be found to be materially false to override the immunity protection, Chief Justice John G. Roberts Jr. questioned if that would always work.

“Material to what?” he asked. “You can have a defamatory statement about a pilot that’s not material to air safety. … So you call a TSA official and say, ‘The pilot is having an affair.’ That’s immune?”

“That would not be immune because that would not be relevant to a suspicious transaction, suspicious activity, or passenger safety.” Cohn replied.

Justice Ruth Bader Ginsburg pointed out that the lower court said a finding of material falsehood was made with respect to this case.

“Did this jury find that the statement was, as you say, materially false?” Ginsburg asked.

“Yes,” Cohn said. But “it shouldn’t have gone to the jury because it’s part of the ATSA immunity analysis, which is for a court to decide.”

Cohn also argued that the proper materiality inquiry for immunity was the perspective of a reasonable air safety official, not the reasonable person standard of defamation cases.

“The jury did not ask whether our statement would have had a different effect on TSA, which is the proper test here,” he said.

‘Recipe for danger’

Kevin K. Russell, a partner in the Washington office of Goldstein & Russell PC, argued on behalf of Hoeper that the words used by the Wisconsin Air supervisor actually created a potentially dangerous situation rather than preventing one.

“When you send armed men onto a plane full of nervous people in close quarters who don’t know what’s going on, and officers who believe there may be a man with a gun who’s mentally unstable on the plane, that is a recipe for danger,” Russell said. “Congress didn’t think that was the way to promote airline security.”

When Russell said the material falsity determination in the underlying defamation claim was sufficient to support the finding that the immunity exception applied, Justice Anthony M. Kennedy pointed out that the standards were meant to apply to people in very different circumstances, such as a reporter for the New Yorker who spent months on an article.

“They had proofreaders. They had editors,” Kennedy said. “And you’re saying the same standard applies to the baggage handler who has only 10 minutes to decide what he’s going to say?”

“I’m saying the same standard of material truth applies,” Russell said. “Actual malice, subjective good faith, is the principal protection afforded to the baggage handlers.”

A decision is expected later this term.

Questions or comments can be directed to the writer at: [email protected]

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