Argument recap: Weighing how carefully airlines must choose their words when reporting safety threats

The Court granted certiorari in Air Wisconsin v. Hoeper to decide whether airlines can be stripped of their statutory immunity from civil suits for reporting safety threats to the Transportation Security Administration if there is no finding that the report was materially false.  But with little real division over the answer to that question, Monday’s arguments veered into practical questions about the procedural implications of such a requirement and the meaning of materiality in the context of airline security.

At issue was a report by Air Wisconsin to the TSA about one of its pilots, who was on the brink of termination after failing a crucial simulator test earlier in the day.  The pilot had quit midway through the test, alleging that it was rigged, raising his voice and cursing.  The pilot, a federal flight deck officer authorized to carry a weapon while on duty, was taken to an airport to fly home after the botched test.  Air Wisconsin contacted TSA to report that it was “concerned” about his mental stability, and that he “may be armed,” although it had no reason to believe that he had brought his gun to the testing.  TSA pulled the pilot off his flight and searched his luggage on the jet bridge before determining that he was not a safety threat.  A Colorado jury found that the airline had defamed the pilot and awarded him $1.4 million.

The Aviation and Transportation Security Act immunizes airlines for such safety reports unless they are made with “actual knowledge that the disclosure was false, inaccurate, or misleading” or “with reckless disregard as to the truth or falsity of that disclosure,” a standard that essentially replicates that “actual malice” test of New York Times v. Sullivan.  The trial court ruled that whether the airline was entitled to immunity under the ATSA was a question for the jury.  Jurors rejected Air Wisconsin’s immunity claim before finding against the airline on the defamation count.  The Colorado Supreme Court held that ATSA immunity was properly an issue for the court, but it deemed the trial court’s error harmless because it determined that the airline had made the report with reckless disregard for its falsity.  The state high court remarked that it did not need to determine the falsity of the report for immunity purposes, alluding to the jury’s determination for defamation purposes that the report was false.

Justice Kennedy teed up the multiple layers in the case by confessing that “it’s not clear to me what the issue is that’s before us.  My understanding is . . . that there was no finding of falsity.”  But, he observed, the jury determined that the airline defamed the pilot, which implies that the jury must have found the report false.  Jonathan F. Cohn, representing Air Wisconsin, suggested that the jury’s finding of material falsity for common-law defamation purposes was inadequate to determine the preliminary question of immunity.  A statement is “materially false” for common-law purposes if it would cause the average hearer to change his general view of the subject, but a statement is only materially false for ATSA immunity purposes if it would cause the average TSA agent to change his evaluation of the threat posed by the subject, he stated.  So the jury’s finding that Air Wisconsin defamed the pilot cannot substitute for an independent finding that the statement was materially false because it misled the TSA.

Justices Alito and Sotomayor noted that tagging the pilot as mentally ill or unstable seemed to be at the very least an exaggerated way to describe the fact that his temper flared after failing the simulator test.  Cohn suggested the difference between saying he was “angry” and saying he was “unstable” was merely a product of vernacular:  “[T]hese reports are being made by tens of thousands of aviation employees on the ground that could have different educations and socioeconomic backgrounds and might not all speak the way we do . . . I think a baggage handler in Boston or a flight attendant in LaGuardia might use different words, such as ‘he lost it,’ [or] ‘he went off the deep end.’”

“I’m sorry.  What’s so difficult about simply saying he’s angry?  Why choose the word ‘mentally unstable’?  Isn’t that with an intent to connote something more than the facts?” asked Justice Sotomayor.

The need for linguistic latitude is exactly why ATSA falsity must be evaluated separate and apart from common-law falsity, Justice Scalia interjected  “There are two different issues of [material] falsity that we’re talking about here . . . .  One is the defamation issue, and it is material to say that somebody is mentally unstable when all that he did was lose his temper . . . That does not answer the question of whether calling him mentally unstable instead of . . . saying he lost his temper would have produced the same effect with the airlines.”  They might have pulled him off the flight either way, meaning the airline was entitled to immunity.  ATSA falsity, he proposed, is a question for the court, while common-law falsity is a question for the jury.  Thus, the jury’s finding in this case that the TSA report was materially false was not sufficient to resolve the preliminary question of immunity.

Representing the United States, Assistant to the Solicitor General Eric Feigin signed on to Justice Scalia’s belt-and-suspenders approach to materiality but suggested that both materiality inquiries belonged to the jury.  Incredulous, Justice Scalia admitted that leaving the immunity question up to the jury “doesn’t give me a lot of comfort.”  Feigin questioned whether the Court needed to address the allocation of authority for weighing material falsehood, but ultimately allowed that “I’m not going to fight the Court too hard if it wants to say that this is a question for the court.”

Some questioned whether the statute was designed to provide any more protection than the standard “actual malice” test set forth in New York Times v. Sullivan.  If the statute were interpreted to offer no more than Sullivan-style protection, “it seems to me that the airline is under a duty more strict than” the one urged by Air Wisconsin and the government, Justice Kennedy observed.  The TSA-specific standard for material falsehood at the immunity stage is more generous to the airlines than Sullivan protection alone.  Justice Kagan seconded this line of reasoning, asking why the standard actual malice rule is not strong enough to give airlines all the protection from civil liability that they need.

Picking up on that theme in his argument on behalf of the pilot, Kevin Russell argued against the notion of requiring separate material falsity findings.  Actual malice means that “even if what [the airline employee] says is blatantly materially false, so long as he believes it, so long as he acted in good faith, he’s protected here,” he said.  “I don’t think that you need to come up with some special materiality lite standard under this statute.”

Further, he pointed out practical difficulties in applying a TSA-specific materiality standard.  TSA keeps a firm lid on its threat evaluation protocol, so it would be difficult for a plaintiff to prove that different language would have elicited a different threat response from the agency.  He urged an alternate materiality test – whether a true statement would have a different effect on a TSA agent’s mind – but several Justices predicted that measuring the effect on an agent’s mind was equally elusive, and would ultimately boil down to evaluating how TSA did respond versus more or less onerous measures it might have taken if the threat report had been worded differently.

Although there seemed to be consensus that immunity cannot be breached without a finding of material falsehood, that position did not point to a clear disposition for the pilot’s case.  There was some skepticism whether Air Wisconsin’s report was materially false under either the TSA-specific or the common-law standard.  Justice Alito termed the difference between the bare facts and the airline’s report “very slight.”  And he suggested that pilots might reasonably be held to higher-than-normal temperamental standards because their occupation requires them to remain calm under pressure.  If so, even the least exaggerated version of the circumstances – that the pilot became irritable and started cursing when he failed the simulation – could have led to the same TSA response.  Justice Breyer echoed the concern that if airlines can be held civilly liable for poor rhetorical choices, they will “start watching their words . . . [when] some real threat comes along.”

Russell disagreed that the airline’s report was only “slightly” different from the truth, noting that “this Court has used ‘mentally unstable’ as a shorthand for describing people who are subject to involuntary commitment, and people who are barred by federal law from owning a gun.  These are trigger words.”  Further, he reminded the Court that his client had introduced testimony below from an expert who had helped craft the TSA regulations stating that the outburst at the test site did not warrant a TSA report.  More important, he pointed out that the notion of a TSA-specific test for material falsehood to determine immunity was never raised at trial or in any of the state court proceedings and had therefore been waived.  That position was first introduced when the government was asked to submit a brief at the certiorari stage.  Although it occupied the lion’s share of the Court’s time yesterday, at least Justices Breyer and Kennedy seemed open to the idea that Air Wisconsin may have waived the issue below.

Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondent in this case.