Criminal Justice & the Rule of Law Cybersecurity & Tech

Air Wisconsin v. Hoeper

Paul Rosenzweig
Monday, January 27, 2014, 12:06 PM
The Supreme Court today decided Air Wisconsin v.

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The Supreme Court today decided Air Wisconsin v. Hoeper, a case that sounds like a tort matter but, in the end is about homeland security.  The facts of the case are relatively straight forward: Hoeper used to work for Air Wisconsin as a pilot.  He failed a simulator test (he says it was rigged -- though that isn't relevant to this discussion) and was told he would be fired.  He became belligerent as a result.  Air Wisconsin booked Hoeper a flight home on United Airlines.  But the Air Wisconsin folks were concerned -- they knew that Hoeper was a Federal Flight Deck Officer.  FFDOs are pilots who are authorized to carry weapons in flight.  They also knew he was angry.  So they called TSA and alerted them to the fact that Hoeper was an FFDO who might be armed and that they were concerned about his "mental stability."  Not unreasonably, TSA ordered Hoeper off the plane. Hoeper sued Air Wisconsin for defamation in Colorado state court.  The airline responded that it was immune from suit under the Aviation and Transportation Security Act (ATSA), which grants airlines and their employees immunity against civil liability for reporting suspicious behavior, 49 U. S. C. §44941(a), except where such disclosure is “made with actual knowledge that the disclosure was false, inaccurate, or misleading” or “made with reckless disregard as to the truth or falsity of that disclosure,” §44941(b). The trial court in Colorado denied the motion to dismiss on immunity grounds and Hoeper eventually won a $1.2 million defamation judgement. Today, a unanimous Supreme Court reversed the Colorado courts.  It held that the ATSA immunity provisions required a showing that the statement about the individual was materially false.  The Court further held that the proper perspective for determining materiality was that of a TSA security office and that, as a matter of law, Air Wisconsin's statements about Hoeper (that he was an FFDO who might be armed and that he was very upset by his imminent firing) were the sort of report that the immunity provision was intended to protect. [This later factual determination was by a 6-3 vote -- the dissenters would have remanded to the lower courts for the factual findings.] I have to think this is the right result -- given concerns about aviation security we want to incentivize the reporting of suspicious behavior with as strong a liability protection as we can.  The Supreme Court analogized the ATSA liability protection standard to the "actual malice" standard that protects the press from defamation suits -- in effect, according the security interest here a substantial degree of value.  While we can readily imagine some adverse circumstances with this standard will over-protect defamatory statements, it seems like the Congressional balance is appropriate and, more to the point, that the Supreme Court has adopted that balance appropriately.

Paul Rosenzweig is the founder of Red Branch Consulting PLLC, a homeland security consulting company and a Senior Advisor to The Chertoff Group. Mr. Rosenzweig formerly served as Deputy Assistant Secretary for Policy in the Department of Homeland Security. He is a Professorial Lecturer in Law at George Washington University, a Senior Fellow in the Tech, Law & Security program at American University, and a Board Member of the Journal of National Security Law and Policy.

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