Supreme Court's Air Wisconsin Case Is About Routine Defamation Principles, Not The Security State

Law

Yesterday the United States Supreme Court overturned a $1.4 million defamation judgment William Hoeper won against Air Wisconsin Airlines. Hoeper, a pilot, lost his temper during a training exercise; Wisconsin Air personnel reported him to the TSA as "unstable" and as a potential threat. Hoeper sued, and a jury found that Wisconsin Air had defamed him.

The Supreme Court overturned the verdict under Title 44, United States Code, section 44941, a federal statute that grants partial immunity to airlines that report "suspicious" behavior to law enforcement.

It's tempting — particularly if like me you are very critical of the TSA and its role in the Security State — to see this as further encroachment on liberties in the name of the Great War on Terror. But it's actually a fairly straightforward application of mundane defamation law.

As the Supreme Court points out, Section 44941 doesn't make all airline communications about perceived threats immune to suit. It carves out what in defamation law is called malice:

(b) Application.—Subsection (a) shall not apply to—

(1) any disclosure made with actual knowledge that the disclosure was false, inaccurate, or misleading; or

(2) any disclosure made with reckless disregard as to the truth or falsity of that disclosure.

This exception incorporates the New York Times v. Sullivan standard of proof that governs defamation claims made by public figures. In effect, because Congress didn't want airlines to worry about defamation liability when deciding whether to report "suspicious" passenger behavior, Congress gave airlines a limited privilege similar to what they would enjoy if they were talking about a public official or public figure.

You might disagree with Congress' decision to encourage reports of "suspicious" behavior by making it difficult to prove a defamation claim based on such reports. But that decision is not unusual. Many jurisdictions have statutory privileges that make it difficult to sue someone for defamation for reporting you to law enforcement. In some jurisdictions — like California — the privilege is absolute, meaning you can't sue someone for defamation for reporting you to the cops at all, even if you can prove they knew the report was false. (You might be able to sue for malicious prosecution.) States that pass such laws have decided that (1) they want people to feel free to report suspected wrongdoing to the police, and (2) absent a privilege it is too easy to use defamation claims to harass opponents for reporting wrongdoing. This is a routine legislative judgment, and Section 44941 is a typical application of it. In California and some other jurisdictions Hoeper's defamation claim would have failed right out of the gate even if Congress hadn't passed Section 44941.

The Supreme Court decided that the trial court didn't apply Section 44941 correctly because (1) it did not tell the jury that they had to find that Air Wisconsin's statements about Hoeper were false, and (2) it did not tell the jury that they had to find that Air Wisconsin's statements were materially false, that is, false in substantial and meaningful respects. These, too, are rather mundane applications of familiar defamation law principles.

On the first point, the Supreme Court cleared up a remote and theoretical ambiguity about the Sullivan malice standard: could a defendant commit defamation if they said something true recklessly, without a basis for thinking that it was true? Not surprisingly — given the centrality of truth as a defense in our First Amendment jurisprudence — the Supreme Court said no. To prove defamation under the Sullivan standard, you must prove the statement was false.

On the second point, the Supreme Court revisited familiar ground to rule that speech is only defamatory if it is materially — that is, meaningfully — false. The court noted that it had previously explained this in Masson v. New Yorker Magazine in 1991, when it ruled that making up quotes in an interview was only defamatory if the made-up quotes gave a significantly different meaning to the subject's words. This is sometimes called the "gist" or "sting" doctrine. This time the Court summarized:

As we explained in Masson, “[m]inor inaccuracies do not amount to falsity so long as ‘the substance, the gist,the sting, of the libelous charge be justified.’” Ibid. A “statement is not considered false unless it ‘would have a different effect on the mind of the reader from that which the pleaded truth would have produced.’”

Put another way, if I rob three banks with a pistol, and you report that I robbed four banks with a shotgun, it's unlikely that your statement will be treated as defamation, because the "sting" of your words is true — I committed armed robbery. Here, the Supreme Court decided that the "gist" or "sting" of Air Wisconsin's words about Hoeper were true, so there was no materially falsity. Three justices, dissenting in part, said the jury should decide whether the statements were materially false or not.

In short, though the circumstances of the case involved the TSA and security issues, the defamation principles in play did not. This is a straightforward and reasonable application of First Amendment law.

JP Jassy offers his thoughts as well.

Last 5 posts by Ken White

36 Comments

36 Comments

  1. Craig  •  Jan 28, 2014 @9:03 am

    Ken, what did you think of Scalia's partial dissent, in which he agreed with the majority on the main issues but argued that it would have been more appropriate to send the question of whether the statements made to TSA were "materially false" back to a lower court, rather than decide that they were not?

  2. Somebody  •  Jan 28, 2014 @9:49 am

    Did anybody else hear Nina Totenberg's voice in their head while they were reading this?

  3. NI  •  Jan 28, 2014 @10:20 am

    I mostly agree with this post. I do find the decision disturbing because it seems to me to be part of a larger trend of judges deciding issues that I think should be left to juries. Whether something is materally false strikes me as a quintessential question of fact for a jury.

  4. David C  •  Jan 28, 2014 @10:33 am

    @Craig: I can't disagree with the dissent. Questions of fact are supposed to be decided by juries. Considering that a jury already decided the statement was "false", it was appropriate to have a jury decide if it was "materially false" instead of the judges declaring it was not. I think the very fact that 3 judges dissented should have been a signal to the others that the facts were disputable. The right to trial by jury is in the Constitution, but here it was bypassed in favor of some judges who thought they knew better.

  5. Ken White  •  Jan 28, 2014 @10:43 am

    Courts have traditionally viewed certain defamation issues as ones for the judge rather than the jury — notably whether a statement is one of fact or opinion.

    Practically, treating it this way provides more robust protection for speech, because it prevents plaintiffs from harassing speakers by forcing them to go to jury trials.

  6. Speed  •  Jan 28, 2014 @10:59 am

    Ken White wrote, " In effect, because Congress didn't want airlines to worry about defamation liability when deciding whether to report "suspicious" passenger behavior, Congress gave airlines a limited privilege similar to what they would enjoy if they were talking about a public official or public figure."

    We can't know why that didn't work here (can we?) but I would like to read any speculation Ken might have.

  7. David C  •  Jan 28, 2014 @11:11 am

    Practically, treating it this way provides more robust protection for speech, because it prevents plaintiffs from harassing speakers by forcing them to go to jury trials.

    If that's the reasoning, it doesn't apply here, because a jury had already heard the case – and actually found for the plaintiff. At that point you certainly can't say that the case had no merit and was just to harass the defendant.

    Plus – OK, juries decide matters of fact, and the judge may decide that something is instead a matter of opinion. But in this case a jury had already found that the statement was false. The question was not fact vs opinion, but whether it was "materially false". I don't care what's traditionally done, it SHOULD go to a jury.

  8. Matt  •  Jan 28, 2014 @11:14 am

    could a defendant commit defamation if they said something true recklessly, without a basis for thinking that it was true?

    So, would this be like if you said "X said all Jews should be killed" because you thought X was a despicable person and you wanted to smear them, and you had no idea if they'd ever said that, but it later turns out that actually, X did say that?

  9. Ken White  •  Jan 28, 2014 @11:15 am

    @DavidC: Well, no. SCOTUS found that the jury instructions didn't clearly require the jury to find that a statement was false to assign liability, which was wrong. The jury wasn't properly instructed on the falsity requirement or the materiality requirement.

    I understand your feeling that it SHOULD go to the jury, but I like the speech-protective approach that uses judges as a gateway on some issues. Otherwise you face a scenario where speakers have to fund a defense through jury verdict when they utter something that is clearly an opinion.

  10. Ken White  •  Jan 28, 2014 @11:18 am

    @Matt: exactly. It's sort of "Lucky guess!"

  11. Darryl  •  Jan 28, 2014 @11:36 am

    I find fascinating that you have "originalists" arguing for a "materiality" gloss on the precise text of the statute. The jury evidently was charged with the EXACT text of the statute, and the Supreme Court now says that proving that is simply not enough. Whether you think judicial "glosses" on statutory text are appropriate or not, it is interesting to see justices who claim to believe in "the text and only the text" come up with these judicial glosses.

    I also think the result of this opinion will be many airlines issuing the "magic words" of "mentally unstable" like a talisman, just like cops claim "furtive movement" and "smell of alcohol on his breath".

  12. Dan Weber  •  Jan 28, 2014 @11:44 am

    I don't think "originalists" think "text and only the text." In fact, originalism includes "original intent." And it still allows for precedent based on prior court rulings.

    So if the legislature passes a law saying "no vehicles in the park" after someone gets run over by an ATV, an originalist doesn't have to say "that means no matchbox cars."

  13. Chris  •  Jan 28, 2014 @11:44 am

    If that's the reasoning, it doesn't apply here, because a jury had already heard the case – and actually found for the plaintiff. At that point you certainly can't say that the case had no merit and was just to harass the defendant.

    The point of a Supreme Court decision isn't really the case that it's deciding, it's to set precedent for future cases.

  14. Darryl  •  Jan 28, 2014 @11:54 am

    Many originalists express exactly that. That was the point of my comment. I find it interesting that a supposed "originalist" like Scalia (and Thomas) can find anywhere in the ATSA any requirement that the falsity be "material." It is nowhere in the statute, and Scalia and Thomas routinely use that argument ("That requirement is not found in the statute" or something similar), and now that argument is simply discarded. Don't get me wrong–I think that falsity should be material, but what should be and what the text of the statute says are two different things. Like I said, I just find it fascinating.

  15. Peter H  •  Jan 28, 2014 @12:28 pm

    Darryl,

    Originalism applies to constitutional disputes, which this was not. The dispute here was what Congress intended when it wrote the statute. In that context, all 9 justices correctly note that Congress was expressly using the Sullivan standard, which includes falsity. However, Congress was within its powers to pick any standard they wanted, up to and including total immunity from suit. So the question before the Supreme Court has nothing to do with the original intent of the founders, and just has to do with Congress' intent.

  16. C. S. P. Schofield  •  Jan 28, 2014 @12:29 pm

    @Ken "@Matt: exactly. It's sort of "Lucky guess!""

    Is the principle that, while you can hurt somebody's reputation by accidentally telling the truth about them, you cannot DEFAME them? That, in effect, you can only be punished for doing UNDESERVED harm to their reputation?

  17. naught_for_naught  •  Jan 28, 2014 @12:45 pm

    Get off his back for Jehovah's sake. I like it when the pilot lose's his shit while flying a jet full of people.

  18. Ken White  •  Jan 28, 2014 @1:11 pm

    @CSP: the principle is that telling the truth about someone isn't defamation, even if it's harmful to their reputation.

  19. Marconi Darwin  •  Jan 28, 2014 @1:59 pm

    @Ken,

    To prove defamation under the Sullivan standard, you must prove the statement was false.

    Can you please explain (briefly) how this could apply in the Mann versus Steyn case? Will it be sufficient if Mann shows that he did not falsify data? Thanks.

  20. Ken White  •  Jan 28, 2014 @2:07 pm

    "Please blog about the case I want you to blog about here in the comments."

    1. Bite me.
    2. It's on my list. Eventually.
    3. I blogged about it once before. A search will find it.

  21. bob  •  Jan 28, 2014 @2:56 pm

    id lose my temper and wanna shoot someone too if i worked for that crappy airline.

  22. Darryl  •  Jan 28, 2014 @3:18 pm

    Peter–"Originalism applies to constitutional disputes." Scalia, Thomas, Roberts, Alito, etc., have all, at one point or another, argued for interpreting statutes, not the Constitution, based solely on the text of the statute, with Scalia going so far as to poo poo on legislative history because it doesn't help in interpreting unambiguous text. Maybe the terminology was incorrect, but the concept and argument were sound. I just find it interesting that in this case all of the justices felt perfectly OK with adding a little judicial "gloss" onto the text of the statute. So, for example, the plaintiff proves (and a jury finds) that a defendant made a disclosure with actual knowledge it was false, inaccurate, or misleading, or proves (and a jury finds) that a defendant made a disclosure with reckless disregard as to the truth or falsity of that disclosure. An interesting question for me would be, "Where in the world would a lay person be able to find this additional requirement the Supreme Court says is necessary, that being that the falsity was "material"?" As I said, I am perfectly fine with the decision as I think it is sound, but I think it shows that when push comes to shove, the argument of "text and only text" in the context of statutory provisions doesn't carry the day.

  23. C. S. P. Schofield  •  Jan 28, 2014 @4:42 pm

    @Ken.

    Thanks for the clarification.

  24. Marconi Darwin  •  Jan 28, 2014 @6:00 pm

    Ouch Ken, that's a tough living room for asking nicely for a brief comment.

    OK, bitten.

  25. Ken White  •  Jan 28, 2014 @6:35 pm

    Sorry. I get a dozen WHY U NO RITE THIS a week. Sometimes the hatefroth spills out.

    I'm working on a "Mark Steyn goes Full Roger Shuler" piece.

  26. Sinij  •  Jan 28, 2014 @7:14 pm

    I appreciate all the hard work you put into entertaining and informing me with your blog. Thank you.

    Still, in the future, please write more blog posts I like, and less ones I don't like. :P

  27. NI  •  Jan 28, 2014 @7:25 pm

    I understand that sometimes judges have to be gatekeepers, but I don't think that's what happened here. The jury question was whether the statement was materially false, and not whether it was fact versus opinion. I think the current Supreme Court doesn't like civil plaintiffs and puts as many roadblocks in their way as possible; their Section 1983 jurisprudence reads a lot like that too.

  28. En Passant  •  Jan 28, 2014 @11:05 pm

    I'm with Scalia, Thomas and Kagan on this one: Give it back to a jury with proper instructions.

    But there is another, more scary, aspect to weakening defamation and other causes of action by giving effective immunity for knowingly reporting falsehoods to officials.

    Ken notes in the OP

    … In some jurisdictions — like California — the privilege is absolute, meaning you can't sue someone for defamation for reporting you to the cops at all, even if you can prove they knew the report was false. (You might be able to sue for malicious prosecution.) States that pass such laws have decided that (1) they want people to feel free to report suspected wrongdoing to the police, and (2) absent a privilege it is too easy to use defamation claims to harass opponents for reporting wrongdoing. …

    CA's near absolute civil immunity for knowingly reporting falsehoods to police effectively makes SWATting a wrong without a civil remedy, as well as a wrong with a very weak criminal deterrent.

    PC 148.5, knowingly making a false report of a crime to a peace officer, is a misdemeanor.

    The view underlying the court's holding in Hagberg v. California Federal Bank (2004) 32 Cal.4th 350 (which Ken notes is current law) is:

    Concern that Penal Code section 148.5 provides an inadequate bulwark against false and malicious communications to the police seems overstated. We note the absence of any indication that such malicious communications present a widespread problem.

    SWATting was not so widespread in 2004, but these days it is frequent enough that reasonable concerns have been raised that innocent SWATtees might be injured or killed.

    So, I think it's reasonable to raise a question, even though the Air Wisconsin facts didn't quite reach the extreme of SWATting:

    If we apply the standards of Air Wisconsin, could SWATting become a loophole for committing murder with very little criminal deterrent or civil remedy?

  29. AlphaCentauri  •  Jan 28, 2014 @11:51 pm

    SWATting probably should be a federal crime, like kidnapping, because of the high likelihood that the perpetrator will be calling from a different state or even a different country, or using an internet service that uses servers outside the locality.

  30. David C  •  Jan 28, 2014 @11:58 pm

    If we apply the standards of Air Wisconsin, could SWATting become a loophole for committing murder with very little criminal deterrent or civil remedy?

    I think not. As you quoted:

    … In some jurisdictions — like California — the privilege is absolute, meaning you can't sue someone for defamation for reporting you to the cops at all, even if you can prove they knew the report was false. (You might be able to sue for malicious prosecution.)

    He said you can't sue them *for defamation*. You could presumably sue them for, say, wrongful death. And in the law applied to the Air Wisconsin case, there was an exception for knowingly false or reckless statements.

    And the immunity, in any case, is only for civil liability. If you SWAT someone to murder them, you could presumably be charged with other laws besides making a false report. Like murder. Under Wisconsin law:

    "Except as provided in sub. (2), whoever causes the death of another human being with intent to kill that person or another is guilty of a Class A felony." And in the notes: "An actor causes death if his or her conduct is a substantial factor in bringing about that result." So it doesn't matter if it's the police that pull the trigger; the person that called them would be considered as having caused the death.

    Intent to kill may be hard to prove – it's not exactly a guaranteed way to kill someone – but even if intent to kill could not be proved, then it would still be reckless homicide.

  31. Devil's Advocate  •  Jan 29, 2014 @7:38 am

    @Ken

    I'm working on a "Mark Steyn goes Full Roger Shuler" piece.

    Ooh, that sounds amazingly awesome.

  32. Haze  •  Jan 29, 2014 @12:08 pm

    @En Passant:

    FWIW, the penalty in California for SWATting now includes a civil reparations component. Effective 01 January 2014, California PC 148.3 was amended to include this subsection:

    e) Any individual convicted of violating this section, based upon a report that resulted in an emergency response, is liable to a public agency for the reasonable costs of the emergency response by that public agency.

    Back on topic:
    Am I mistaken in seeing Air Wisconsin, subject as it is to to strict, sweeping, explicit governmental regulation, as a (partial, at least) "state actor" in its actions vis-a-vis William Hoeper?
    I should think that "state actors," like the government itself, ought to be held to a different standard than purely private actors. Particularly in our NSA-infused era, I could imagine, say, a private contractor for the US government releasing a juicy [but true] bit of non-classified government surveillance yet being absolutely protected against a defamation suit because what it had revealed was indeed true.

  33. Jacob H  •  Jan 29, 2014 @4:59 pm

    @Somebody

    That should be Nina Totenbag, amirite?

  34. John J.J.S.  •  Jan 29, 2014 @10:11 pm

    Here, the Supreme Court decided that the "gist" or "sting" of Air Wisconsin's words about Hoeper were true, so there was no materially [sic] falsity.

    And this is where a problem arises. As Scalia noted, there is a very large difference between being angry and "mentally unstable". Allowing airlines to call anyone who has a temper tantrum insane, basically, is absolutely a huge win for the security state, and as someone who suffers from mental illness, conflating the two is insulting.

  35. En Passant  •  Jan 30, 2014 @9:01 am

    Haze wrote Jan 29, 2014 @12:08 pm:

    FWIW, the penalty in California for SWATting now includes a civil reparations component. Effective 01 January 2014, California PC 148.3 was amended …

    Thanks for the update. I note that the civil liability is to the government, though, and not to the actual victim. This is typical government arrogation of more power and money to government, and definitely not empowerment of citizens to right the wrongs against them.

    I should think that "state actors," like the government itself, ought to be held to a different standard than purely private actors. Particularly in our NSA-infused era, …

    I could not agree more, if "different standard" means "higher standard", which is what I took your meaning to be.

  36. Somebody  •  Jan 30, 2014 @2:45 pm

    @Jacob H
    You are absolutely right.