Pilot challenged ‘mentally unstable’ characterization
By Elizabeth Ahlin
The Daily Record Newswire
A $1.2 million defamation verdict won by an airplane pilot has been tossed by the U.S. Supreme Court, which found that the airline was entitled to immunity for statements its employees made to Transportation Safety Administration employees indicating the pilot was “mentally unstable” and could be carrying a gun.
Airline and airport employees, Justice Sonia Sotomayor wrote, “should not face financial ruin if, in the heat of a potential threat, they fail to choose their words with exacting care.”
The case, Air Wisconsin v. Hoeper, worked its way through the judicial system in Colorado, where its highest court upheld the $1.2 million defamation verdict. The recent U.S. Supreme Court decision was a victory for Air Wisconsin and its primary attorney on the case, Donald Chance Mark of Eden Prairie.
Mark did not argue the case before the high court – he hired a Washington, D.C. attorney to do that — but he has represented Air Wisconsin in the case since 2007 and he briefed the case.
“It’s great news for our client, and honestly I think it’s terrific news for the public as well,” Mark said.
The victory is a win for the flying public, Mark said, because the court confirmed that the Aviation and Transportation Security Act (ATSA) — passed after the 9/11 terrorist attacks — provides immunity from defamation lawsuits when one is reporting suspicious activity or a potential threat. The previous Colorado jury verdict had the ability to create “a chilling effect” on what air carriers were willing to do under the ATSA, Mark said.
“It could cause air carriers to wonder, Will we be sued if we report this to TSA?” Mark said.
The immunity is not absolute, but the Supreme Court opinion does clarify the standard which will be used to evaluate whether a statement made to report a potential threat qualifies for immunity under the ATSA.
The court determined that, under the ATSA, the statutory standard for defamation is based on the actual malice standard developed in the seminal defamation case New York Times v. Sullivan. Under that well-known guideline, a defamation claim can be successfully brought only if the statement that was made was knowingly false or made with “reckless disregard as to its truth or falsity.”
“There must be knowledge that what was said was false or showed reckless disregard for the truth, but also that it was materially false, to not get immunity under the statute,” said Raleigh Levine, a First Amendment law professor at William Mitchell College of Law.
In this case, the pilot, Hoeper, had just failed a flight simulation test which, both he and his superiors knew, meant he would likely lose his job, according to the opinion. Hoeper displayed anger after failing the test, and airline employees knew he was authorized to carry weapons on airplanes and he did not have to undergo regular security screening as a pilot. When employees from the airline contacted the TSA, the TSA was told that Hoeper had just lost his job, was “mentally unstable,” and might have a weapon. Hoeper was pulled off of a flight home for questioning by the TSA. He was not armed and was not found to be a danger. He took a later flight home to Colorado.
The information delivered to the TSA was not precise. For one, Hoeper had not been terminated, although he knew he likely would be fired soon. Also, Hoeper challenged the characterization of him as “mentally unstable.” When the Colorado Supreme Court evaluated the trial court’s assessment of that information, it found that there was a “high degree of awareness of its probable falsity.” But the Supreme Court said that erroneously analyzed the material falsity of the statement.
Because, the court concluded, the TSA likely would have reacted in the same manner whether Hoeper had been described as recently fired or soon to be fired and whether Air Wisconsin called him mentally unstable or angry, the statements made about Hoeper were not materially false, even if they were not strictly true.
Several agencies and organizations wrote amicus briefs supporting Air Wisconsin. That group included the Washington Post and other media organizations, as well as air transport groups and the U.S. Solicitor General.
If airline employees are worried about defamation, it could cause them to evaluate whether “what they were saying was factually perfect or completely accurate,” said Greg Reigel, a Hopkins aviation attorney. “That hinders some of the immediacy or the urgency that the ATSA” was designed to provide in reporting potentially suspicious activity.
The decision validates the Air Wisconsin approach, Mark said.
“Quite candidly, they decided correctly. They didn’t sit around in a conference room and worry about whether they might be sued. They thought, 1) What are we required to do under this new law after 9/11 and 2) what is best for our passengers and our airline?”
