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.
Last 5 posts by Ken White
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