Issue of falsity must be considered in defamation case, news organizations argue in high court brief

A Colorado Supreme Court ruling that allowed a defamation claim to stand without considering whether the statements at issue were substantially true could have a chilling effect on the First Amendment and should be overturned, the Reporters Committee for Freedom of the Press and 15 news media organizations argued in a brief filed with the U.S. Supreme Court.

“Were other courts to follow the lead of the Colorado Supreme Court by upholding crippling defamation verdicts for substantially true speech, the crucial ‘breathing space’ for speech matters of public concern that allows amici to function would dissipate, casting a chill over speech at the heart of the First Amendment,” the brief argued.

The case of Air Wisconsin v. Hoeper centers around statements made by pilot William Hoeper’s co-workers to the Transportation Safety Administration. Hoeper’s colleagues expressed concern to the TSA about Hoeper’s behavior, employment status, access to a firearm and the fact that he was about to board a commercial airliner. The Aviation and Transportation Security Act, passed by Congress in the days following the Sept. 11 terrorist attacks, applied the “actual malice” standard for airline workers reporting suspicious activity to the TSA. The Colorado trial court and state Supreme Court, however, made no determination of the statement’s falsity and allowed a $1.4 million defamation suit filed by Hoeper to stand.

“In this case, the Colorado Supreme Court impermissibly removed falsity from the actual malice equation,” the brief argued. “It denied ATSA immunity by finding that the airline employees acted with actual malice, while expressly declining to determine whether the statements at issue were materially false as a matter of law.

“The court then went on to sustain a seven-figure defamation verdict for substantially true statements, based on conduct that cannot constitute actual malice under this Court’s precedents,” the brief stated.

“The court’s ruling that a statement can be found to have been made with actual malice without regard for whether it is substantially true is inconsistent with a long line of legal precedent,” said Reporters Committee Legal Defense Director Gregg P. Leslie.

Joining the Reporters Committee brief, which was prepared by Davis Wright Tremaine LLP in Washington were: Advance Publications, Inc.; the American Society of News Editors; The Association of American Publishers; Courthouse News Service; the Digital Media Law Project; Hearst Corporation; the Media Law Resource Center; The National Press Club; the National Press Photographers Association; National Public Radio, Inc.; the Newspaper Association of America; the Online News Association; the Radio Television Digital News Association; the Society of Professional Journalists; and The Washington Post.

About the Reporters Committee

Founded in 1970, the Reporters Committee for Freedom of the Press offers free legal support to thousands of working journalists and media lawyers each year. It is a leader in the fight against persistent efforts by government officials to impede the release of public information, whether by withholding documents or threatening reporters with jail. In addition to its 24/7 Legal Defense Hotline, the Reporters Committee conducts cutting-edge legal research, publishes handbooks and guides on media law issues, files frequent friend-of-the-court legal briefs and offers challenging fellowships and internships for young lawyers and journalists. For more information, go to www.rcfp.org, or follow us on Twitter @rcfp.

Related Reporters Committee resources:

· Brief: Air Wisconsin v. Hoeper