See Something? Say Something! Just Make Sure It’s Not Materially False.


By: William Ezzell
Last Tuesday, in Air Wisconsin v. Hoeper, No. 12-315, 2014 WL 27329,  at *1 (U.S. Jan. 27, 2014), the U.S. Supreme Court issued an important ruling concerning the scope of immunity granted to airlines.  That immunity is found in the Aviation and Transportation Security Act (ATSA), which tasks airlines with assessing and reporting threats to TSA. In doing so, it affords airlines immunity from suit so long as the statements were made without actual knowledge or reckless disregard of falsity. If you are thinking that this reminds you of New York Times v. Sullivan, you are correct. Congress modeled the statute after this precedent, establishing an actual malice standard which requires “material falsity.” Statements made with actual knowledge that the disclosure was false, inaccurate, or misleading, or made with reckless disregard for the truth of the disclosure do not enjoy immunity from civil liability.
This case involved a pilot who was fired by Air Wisconsin for failing four aircraft certification exams.  After the pilot failed the last exam, he knew his termination was all but certain and delivered a profanity-filled tirade against his superiors before boarding his return flight home. However, this situation was different than other terminations – the pilot was certified by TSA to carry a firearm on the flight deck. The officials promptly reported their concerns to TSA and TSA agents removed him from the aircraft, even though the firearm was safely secured at the pilot’s house and the pilot posed no threat. The pilot sued Air Wisconsin under Colorado law for defamation, infliction of emotional distress and false imprisonment.  Despite the genuineness of Air Wisconsin’s concerns, the disclosures nevertheless far overstated the actual danger the pilot presented.  At trial, the jury was never instructed to determine whether the disclosure was materially false, the pilot prevailed, and the verdict was upheld by the Colorado Supreme Court.
On appeal, the United States Supreme Court held airlines are immune from civil liability for reporting suspicious behavior but withheld immunity for “materially false” disclosures pursuant to the holding in Sullivan. The Court further held that immunity under the ATSA may not be denied without a determination that a disclosure was materially false, and in determining materiality for the purpose of ATSA immunity, the analysis is whether a falsehood affects the authorities perception of and response to a given threat – not whether a falsehood affects the subject’s reputation in the community. Because the jury was never instructed to find any material falsity, Air Wisconsin was entitled to immunity.
For all us passengers out there, this should assuage any fears that an airline would wait to call the TSA until running the language through managers or attorneys.  The holding undoubtedly advances the purpose of ATSA: to encourage those in the best position to say something in the quickest and most efficient means possible. But once again, in our post 9/11 society, these decisions come with costs.  There will inevitably be situations when the actual malice standard shields blatantly defamatory statements, perhaps statements that greatly damage a person’s reputation.  One can imagine how difficult it was for the pilot to find another position in the aviation industry altogether – if he was even able.  While this case is narrowly tailored to the confines of federal transportation security laws, the implications in corporate liability and employment law across other industries are worthy of consideration.  What are the consequences for employers and corporations when they fear someone poses a threat to others? As this case illustrates, society is leaning towards protection of the masses over the harm that occurs to a suspect when the threat is unfounded.