Colorado man at center of important
 lawsuit on libel verus free speech

By Matt Soper

We all remember the fable of the boy who cried wolf. The moral Aesop illustrates is that liars are rewarded, until the fabrication becomes reality.

This week the U.S. Supreme Court held that airlines are immune from defamation liability when making reports to the Transportation Security Administration, even when those reports are known to be false or are so reckless as to be a willful disregard to the truth.

In 2004, Coloradan William Hoeper was employed by Air Wisconsin Airlines. The airline was changing its entire fleet of planes and was requiring pilots to become certified on the new aircraft. Hoeper was nearing retirement age and had failed three previous certification exams.

During the fourth attempt in Northern Virginia, Air Wisconsin told Hoeper if he failed again, he’d be terminated. Hoeper became convinced that the airline was sabotaging his exam. A Colorado jury later agreed this was indeed the case.

Hoeper exchanged some expletives and other choice words with his supervisor, Patrick Doyle, before announcing that he was quitting and calling the pilots’ union. Doyle immediately booked Hoeper on the first flight back to Denver.

While Hoeper was boarding a regular commercial plane bound for Colorado, Doyle was calling the TSA. Doyle told the TSA that an “unstable pilot” was boarding a plane and that he was “concerned” because the pilot was terminated earlier and might be “armed” and dangerous. The Colorado Supreme Court later held these statements to have been “made with reckless disregard of their truth or falsity.” Doyle knew Hoeper was a deputized federal flight deck officer, which entitles him to carry a firearm when flying.

As in Aesop’s fable, when wolf is cried, all the villagers go running to save the boy from the pack of vicious animals. Here, the TSA sent snowplows and fire trucks to stop the Boeing 757 from proceeding down the tarmac. A SWAT team came bursting into the cabin. Meanwhile, Hoeper was looking for the “terrorist” on his flight, not knowing the special agents were after him.
After a lengthy interrogation, no charges were filed and Hoeper was finally re-united with his family in Colorado. Hoeper immediately filed a defamation lawsuit against Air Wisconsin Airlines, alleging vicarious liability for the actions of its agent, Patrick Doyle.

Defamation is a statement that adversely affects a person’s reputation. Reputation has an economic value upon which individuals in our society peddle goods and services. Defamation is also about damages to a person’s good name and credibility. If someone damages your reputation, then they have damaged your economic value.

A Colorado jury awarded Hoeper $1.2 million in damages ($849,625 in presumed damages, $350,000 in punitive damages and $222,123.09 in costs).

Air Wisconsin appealed to the Court of Appeals, alleging that it was immune from liability pursuant to the Aviation and Transportation Security Act.

The ATSA provides that an air carrier that voluntarily discloses suspicious activity “shall not be civilly liable.”

The Colorado Supreme Court annually chooses a case to hear in front of Colorado high school students; in 2012, Hoeper v. Air Wisconsin Airlines was the case. The court upheld the jury’s verdict and the appeals court ruling.

The U.S. Supreme Court granted a writ of certiorari to Air Wisconsin, and oral arguments were heard on a frigid and snowy day in Washington, D.C. (I was fortunate to attend the proceedings.)

All odds were against Hoeper. The Obama administration sided with the airlines and feared that liability for defamatory statements would discourage airlines and their employees from reporting suspicious activity to the TSA. Even The New York Times and The Washington Post filed amicus briefs with the Court, siding with the petitioner, as they didn’t want to see penalties for “First Amendment speech.”

Justice Sonia Sotomayor delivered the opinion of the court, which reversed the finding of the Colorado Supreme Court, by granting immunity to airlines who make reports to the TSA. Sotomayor said, “All of us from time to time use words that, on reflection, we might modify ... If such slips of the tongue could give rise to major financial liability, no airline would contact the TSA.”

Justices Antonin Scalia, Clarence Thomas and Elena Kagan were the dissenters. It is odd to see two of the most conservative justices joining one of the most liberal. They argued (correctly, I believe) that a jury, made up of regular Americans, could make the determination of whether Hoeper was a threat to public security or if Doyle made the report based on a vindictive and reckless disregard for the truth or falsity of the information being reported.

Lies should not be rewarded. As in the tale of the boy who cried wolf, this week’s ruling encourages abuse and recklessness.

 

Matt Soper is a resident of Delta County and an alumnus of Colorado Mesa University. He holds law degrees from the University of Edinburgh and the University of New Hampshire.


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Good column.

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