Supreme Court to hear Air Wisconsin defamation caseon immunity in reporting security threats

Amy Zhang | Libel | News | June 18, 2013

The U.S. Supreme Court agreed to review a case involving an Air Wisconsin pilot who sued for defamation, which raises the issue of the extent of the airline's immunity from lawsuits when they report potential security threats.

The justices will decide if the Colorado Supreme Court was correct in upholding a $1.4 million damages award to pilot William Hoeper and denying Air Wisconsin Airlines legal immunity after it reported to the Transportation Security Administration (TSA) that Hoeper could be a security threat. Hoeper was questioned by the TSA but never charged.

In December 2004, after Hoeper failed for the fourth time to pass a flight proficiency test, he became angry and ‘blew up’ at test administrators, according to court papers. Air Wisconsin colleagues reported concerns to the TSA that Hoeper could be dangerous and possibly armed with a gun that pilots were authorized to carry.

After detaining Hoeper at Dulles International Airport and searching him without finding a gun, the TSA released him. Air Wisconsin terminated his employment the following day.

The airline argued that The Aviation and Transportation Security Act (ATSA) passed in 2001 encourages airlines and employees to err on the side of disclosure when they become aware of potential security threats. The act shields airlines from civil suits as long as reports are not intentionally false or misleading.

The Colorado court agreed with lower court in ruling that the airline was not immune because warnings sent to the TSA were 'overstated' and airline officials did not take necessary steps to check their facts. The court said that ATSA immunity for airlines is similar to libel protections for newspapers. Statements are shielded unless they are 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.”

The Obama administration joined the airline in urging the Supreme Court to review and reverse the Colorado court decision. In a friend-of-the-court brief, Solicitor General Donald Verrilli said the court had drawn a “hair-splitting distinction” by focusing on the wording of airline officials' statements and not whether alternate statements would have induced a different outcome for Hoeper.

“The inquiry must focus on the overall substance of the disclosure in light of the likely time-sensitive, high pressure circumstances . . . rather than involve a granular sentence-by-sentence parsing,” Verrilli said. “Had the Colorado Supreme Court followed this approach, it would have set aside the judgment against the petitioner.”

The Reporters Committee for Freedom of the Press argued in a friend-of-the-court brief in support of the petition for review that all appellate courts must independently review facts of the case to judge whether statements are false regardless of lower court rulings. The high court decided not to review that issue.

If the decision by the Colorado court is left to stand, added Verrilli, it will chill employees from alerting administrators of potential threats because their reports could lead to expensive libel suits.

Related Reporters Committee resources:

· Brief: Air Wisconsin Airlines v. Hoeper