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SUPREME COURT OF THE UNITED STATES
_________________
No. 12–315
_________________
AIR WISCONSIN AIRLINES CORPORATION,PETITIONER v. WILLIAM L.
HOEPER
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF COLORADO
[January 27, 2014]
Justice Sotomayor delivered the opinion
of the Court.
In 2001, Congress created the
Transportation Security Administration (TSA) to assess and manage
threats against air travel. Aviation and Transportation Security
Act (ATSA),49 U. S. C. §44901 et seq. To ensure that
theTSA would be informed of potential threats, Congress gave
airlines and their employees immunity against civil liability for
reporting suspicious behavior. §44941(a). But this immunity does
not attach to “any disclosure made with actual knowledge that the
disclosure was false, inaccurate, or misleading” or “any disclosure
made with reckless disregard as to the truth or falsity of that
disclosure.” §44941(b).
The question before us is whether ATSA
immunity may be denied under §44941(b) without a determination that
a disclosure was materially false. We hold that it may not. Because
the state courts made no such determination, and because any
falsehood in the disclosure here would not have affected a
reasonable security officer’s assessment of the supposed threat, we
reverse the judgment of the Colorado Supreme Court.
I
A
William Hoeper joined Air Wisconsin
Airlines Corporation as a pilot in 1998. But by late 2004, Air
Wisconsin had stopped operating flights from Denver, Hoeper’s home
base, on any type of aircraft for which he was certified. To
continue flying for Air Wisconsin out of Denver, Hoeper needed to
gain certification on the British Aerospace 146 (BAe-146), an
aircraft he had not flown.
Hoeper failed in his first three
attempts to pass a proficiency test. After the third failure, as he
later acknowledged at trial, his employment was “at [Air
Wisconsin’s] discretion.” App. 193. But he and Air Wisconsin
entered into an agreement to afford him “one more opportunity to
pass [the] proficiency check.” Id., at 426. The agreement left
little doubt that Hoeper would lose his job if he failed again.
In December 2004, Hoeper flew from
Denver to Virginia for simulator training as part of this final
test. During the training, Hoeper failed to cope with a challenging
scenario created by the instructor, Mark Schuerman, and the
simulator showed the engines “flam[ing] out” due to a loss of fuel.
App. 203. As Schuerman began to tell Hoeper that he “should know
better,” ibid., Hoeper responded angrily. He later described what
happened:
“At this point, that’s it. I take my headset off and I toss it
up on the glare shield. . . . [Schuerman] and I exchanged
words at the same elevated decibel level. Mine went something like
this: This is a bunch of shit. I’m sorry. You are railroading the
situation and it’s not realistic.” Id., at 203–204.
When Hoeper announced that he wanted to call the legal
department of the pilots’ union, Schuerman ended the session so
that Hoeper could do so. Schuerman then re-ported Hoeper’s behavior
to Patrick Doyle, the Wisconsin-based manager of the BAe-146 fleet.
Doyle booked Hoeper on a United Airlines flight back to Denver.
Several hours after Schuerman’s report,
Doyle discussed the situation at Air Wisconsin’s headquarters with
the airline’s Vice President of Operations, Kevin LaWare; its
Managing Director of Flight Operations, Scott Orozco; and its
Assistant Chief Pilot, Robert Frisch. LaWare later ex-plained the
accretion of his concerns about what Hoeper might do next. He
regarded Hoeper’s behavior in the simulator as “a fairly
significant outburst,” of a sort that he “hadn’t seen
. . . before.” Id., at 276. And he knew “it was a given
that . . . Hoeper’s employment was . . . going
to be terminated” as a result of his failure to complete the
simulator training. Id., at 278.
Then, LaWare testified, Orozco
mentioned that Hoeper was a Federal Flight Deck Officer (FFDO). The
FFDO program allows the Government to “deputize volunteer pilots of
air carriers . . . to defend the flight decks of aircraft
. . . against acts of criminal violence or air piracy.”
§44921(a). FFDOs are permitted “to carry a firearm while engaged in
providing air transportation.” §44921(f )(1). Hoeper had
become an FFDO earlier in 2004 and had been issued a firearm. He
was not allowed to carry the firearm during his trip to the
training facility, because he was not “engaged in providing air
transportation,” ibid. But according to one official at the
meeting, the Denver airport’s security procedures made it possible
for crew members to bypass screening, so that Hoeper could have
carried his gun despite the rule. Indeed, Frisch later testified
that he was “aware of one” incident in which an Air Wisconsin pilot
had come to training with his FFDO weapon. App. 292. On the basis
of this information, LaWare concluded, there was “no way
. . . to confirm” whether “Hoeper had his weapon with
him, even though . . . by policy, [he was] not supposed
to have it with him.” Id., at 279.
Finally, LaWare testified, he and the
other Air Wisconsin officials discussed two prior episodes in which
disgruntled airline employees had lashed out violently. Id., at
280. In one incident, a FedEx flight engineer under investigation
for misconduct “entered the cockpit” of a FedEx flight “and began
attacking the crew with a hammer” before being subdued. United
States v. Calloway, 116 F. 3d 1129, 1131 (CA6 1997). In
another, a recently fired ticket agent brought a gun onto a Pacific
Southwest Airlines flight and shot his former supervisor and the
crew, leading to a fatal crash. Malnic, Report Confirms That Gunman
Caused 1987 Crash of PSA Jet, L. A. Times,Jan. 6, 1989,
p. 29.
In light of all this—Hoeper’s anger,
his impending termination, the chance that he might be armed, and
the history of assaults by disgruntled airline employees—LaWare
decided that the airline “need[ed] to make a call to the TSA,” to
let the authorities know “the status” of the situation. App.
282.
Doyle offered to make the call.
According to the jury, he made two statements to the TSA: first,
that Hoeper “was an FFDO who may be armed” and that the airline was
“concerned about his mental stability and the whereabouts of his
firearm”; and second, that an “[u]nstable pilot in [the] FFDO
program was terminated today.” App. to Pet. for Cert. 111a. (The
latter statement appears in the record as the subject line of an
internal TSA e-mail, summarizing the call from Doyle. App.
414.)
The TSA responded to the call by
ordering that Hoeper’s plane return to the gate. Officers boarded
the plane, re-moved Hoeper, searched him, and questioned him about
the location of his gun. When Hoeper stated that the gun was at his
home in Denver, a Denver-based federal agent went there to retrieve
it.
Later that day, Hoeper boarded a return
flight to Denver. Air Wisconsin fired him the following day.
B
Hoeper sued Air Wisconsin in Colorado
state court on several claims, including defamation.[
1] Air Wisconsin moved for summary judgment on the basis
of ATSA immunity,[
2] but the trial court denied
it, ruling that the jury was entitled to find the facts pertinent
to immunity. The case went to trial, and the court denied Air
Wisconsin’s motion for a directed verdict on the same basis. It
submitted the question of ATSA immunity to the jury, with the
instruction—following the language of §44941(b)—that immunity would
not apply if Hoeper had proved thatAir Wisconsin “made the
disclosure [to the TSA] with ac-tual knowledge that the disclosure
was false, inaccurate, or misleading” or “with reckless disregard
as to its truth or falsity.” App. 582. The jury instructions did
not state that ATSA immunity protects materially true
statements.
The jury found for Hoeper on the
defamation claim and awarded him $849,625 in compensatory damages
and $391,875 in punitive damages. The court reduced the latter
award to $350,000, for a total judgment of just under $1.2 million,
plus costs.
The Colorado Court of Appeals affirmed.
232 P. 3d 230 (2009). It held “that the trial court properly
submitted the ATSA immunity issue to the jury,” that “the record
supports the jury’s rejection of immunity,” and that the evidence
was sufficient to support the jury’s defamation verdict. Id., at
233.
The Colorado Supreme Court affirmed.
2012 WL 907764 (Mar. 19, 2012). It began by holding, contrary to
the lower courts, “that immunity under the ATSA is a question of
law to be determined by the trial court before trial.” Id., at *4.
But it concluded that the trial court’s error in submitting
immunity to the jury was “harmless because Air Wisconsin is not
entitled to immunity.” Id., at *6. In a key footnote, the court
stated: “In our determination of immunity under the ATSA, we need
not, and therefore do not, decide whether the statements were true
or false. Rather, we conclude that Air Wisconsin made the
statements with reckless disregard as to their truth or falsity.”
Id., at *16, n. 6. The court thus appears tohave labored under the
assumption that even true statements do not qualify for ATSA
immunity if they are made recklessly.
Applying this standard, and giving “no
weight to the jury’s finding[s],” ibid., n. 5, the court held
that “[a]l-though the events at the training may have warranteda
report to TSA,” Air Wisconsin’s statements “overstated those events
to such a degree that they were made with reckless disregard of
their truth or falsity.” Id., at *7. The court opined that Air
Wisconsin “would likely be immune under the ATSA if Doyle had
reported that Hoeper was an Air Wisconsin employee, that he knew he
would be terminated soon, that he had acted irrationally at the
training three hours earlier and ‘blew up’ at test administrators,
and that he was an FFDO pilot.” Id., at *8. But because Doyle
actually told TSA “(1) that he believed Hoeper to be mentally
unstable; (2) that Hoeper had been terminated earlier that day; and
(3) that Hoeper may have been armed,” id., at *7, the court
determined that his statements “went well beyond” the facts and did
not qualify for immunity, id., at *8. The court went on to conclude
that the evidence was sufficient to support the jury’s defamation
verdict.
Justice Eid, joined by two others,
dissented in part. She agreed with the majority’s holding that
immunity is an issue for the court, not the jury. But she reasoned
that Air Wisconsin was entitled to immunity “because [its]
statements to the TSA were substantially true.” Id., at *11.
We granted certiorari to decide
“[w]hether ATSA immunity may be denied without a determination that
the air carrier’s disclosure was materially false.” 570 U. S.
___ (2013).
II
A
Congress patterned the exception to
ATSA immunity after the actual malice standard of New York Times
Co. v. Sullivan,376 U. S. 254 (1964), and we have long held
that actual malice requires material falsity. Because we presume
that Congress meant to incorporate the settled meaning of actual
malice when it incorporated the language of that standard, we hold
that a statement otherwise eligible for ATSA immunity may not be
deniedimmunity unless the statement is materially false.
In New York Times, we held that under
the First Amendment, a public official cannot recover “for a
defamatory falsehood relating to his official conduct unless he
proves that the statement was made with ‘actual malice’—that is,
with knowledge that it was false or with reckless disregard of
whether it was false or not.” Id., at 279–280. Congress borrowed
this exact language in denying ATSA immunity to “(1) any disclosure
made with actual knowledge that the disclosure was false,
inaccurate, or misleading; or (2) any disclosure made with
recklessdisregard as to the truth or falsity of that disclosure.”
§44941(b).
One could in principle construe the
language of the actual malice standard to cover true statements
made recklessly. But we have long held, to the contrary, that
actual malice entails falsity. See, e.g., Philadelphia Newspapers,
Inc. v. Hepps,475 U. S. 767,775 (1986) (“[A]s one might expect
given the language of the Court in New York Times, a public-figure
plaintiff must show the falsity of the statements at issue in order
to prevail in a suit for defamation” (citation omitted)); Garrison
v. Louisiana,379 U. S. 64,74 (1964) (“We held in New York
Times that a public official might be allowed the civil remedy only
if he establishes that the utterance was false”).
Indeed, we have required more than mere
falsity to establish actual malice: The falsity must be “material.”
Masson v. New Yorker Magazine, Inc.,501 U. S. 496,517 (1991). 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.’ ” Ibid. (quoting R. Sack, Libel, Slander, and
Related Problems 138 (1980)).
These holdings were settled when
Congress enacted the ATSA, and we therefore presume that Congress
meant to adopt the material falsity requirement when it
incorporated the actual malice standard into the ATSA immunity
exception. “[I]t is a cardinal rule of statutory construction that,
when Congress employs a term of art, it presumably knows and adopts
the cluster of ideas that were attached to each borrowed word in
the body of learning from which it is taken.” FAA v. Cooper, 566
U. S. ___, ___ (2012) (slip op., at 6) (internal quotation
marks omitted). The actual malice standard does not cover
materially true statements made recklessly, so we presume that
Congress did not mean to deny ATSA immunity to such statements.
Other indicia of statutory meaning
could rebut this presumption, but here, they do not. First, the
ATSA’stext favors a falsity requirement. The first subsection of
§44941(b) requires falsity, as a true disclosure cannot have been
made “with actual knowledge” that it “was false.” The only question
is whether the second subsection—which denies immunity to “any
disclosure made with reckless disregard as to [its] truth or
falsity”—similarly requires falsity. We conclude that it does. The
second subsection simply extends the immunity exception from
knowing falsehoods to reckless ones, ensuring that an air carrier
cannot avoid liability for a baseless report by sticking its head
in the sand to avoid “actual knowledge” that its statements are
false. “[T]he defense of truth . . . , even if not
explicitly recognized, . . .is implicit in
. . . a standard of recovery that rests on knowing or
reckless disregard of the truth.” Cox Broadcasting Corp. v.
Cohn,420 U. S. 469–499 (1975) (Powell, J., concurring).
A material falsity requirement also
serves the purpose of ATSA immunity. The ATSA shifted from airlines
to the TSA the responsibility “for assessing and investigating
possible threats to airline security.” 2012 WL 907764, *14 (Eid,
J., concurring in part and dissenting in part). In directing the
TSA to “receive, assess, and distribute intelligence information
related to transportation security,”49 U. S. C.
§114(f)(1), Congress wanted to ensure that air carriers and their
employees would not hesitate to provide the TSA with the
information it needed. This is the purpose of the immunity
provision, evident both from its context and from the title of the
statutory section that contained it: “encouraging airline employees
to report sus-picious activities.” ATSA §125,115Stat.631
(capitali-zation and boldface type omitted). It would defeat this
purpose to deny immunity for substantially true reports, on the
theory that the person making the report had not yet gathered
enough information to be certain of its truth. Such a rule would
restore the pre-ATSA state of affairs, in which air carriers bore
the responsibility to investigate and verify potential threats.
We therefore hold that ATSA immunity
may not be denied under §44941(b) to materially true statements.
This interpretation of the statute is clear enough that Hoeper
effectively concedes it. See Brief for Respondent 30 (acknowledging
that if the Colorado Supreme Court actually said “ ‘an airline
may be denied ATSA immunity . . . for reporting true
information,’ ” then “the court was likely wrong”). Hoeper
does point out in a footnote that given Congress’ desire to deny
immunity to “ ‘bad actors,’ ” and “given that the vast
majority of reckless statements will not turn out to be true[,] . .
. Congress could have quite reasonably chosen to deny the special
privilege of ATSA immunity to all reckless speakers,” even those
whose statements turned out to be true. Id., at 30, n. 12. But
although Congress could have made this choice, nothing about the
statute’s text or purpose suggests that it actually did. Instead,
Congress chose to model the exception to ATSA immunity after a
standard we have long construed to require material falsity.
B
We are not persuaded by Hoeper’s
arguments thatwe should affirm the judgment of the Colorado Supreme
Court notwithstanding its misapprehension of the ATSA immunity
standard.
Hoeper first argues that Air Wisconsin
forfeited the claim that it is entitled to immunity because its
statements were materially true. His premise is that AirWisconsin
argued the truth of its statements only in challenging the
evidentiary basis for the defamation verdict, not in asserting
immunity. But Air Wisconsin’s brief before the Colorado Supreme
Court argued that the exception to ATSA immunity “appears to
incorporate the New York Times actual malice standard,” which—as we
have explained—requires material falsity. Petitioner’s Opening
Brief in No. 09SC1050, p. 24.
Hoeper next argues that the Colorado
Supreme Court performed the requisite analysis of material falsity,
albeit in the context of finding the record sufficient to support
the jury’s defamation verdict. For several reasons, however, this
analysis does not suffice for us to affirm the denialof ATSA
immunity. First, to the extent that the immunity determination
belongs to the court—as the Colorado Supreme Court held—a court’s
deferential review of jury findings cannot substitute for its own
analysis of the record. Second, the jury here did not find that any
falsity in Air Wisconsin’s statements was material, because the
trial court instructed it only to determine whether “[o]ne or more
of th[e] statements was false,” App. 580, without addressing
materiality. Third, applying the material falsity standard to a
defamation claim is quite different from applying it to ATSA
immunity. In both contexts,a materially false statement is one that
“ ‘would have a different effect on the mind of the reader [or
listener] from that which the . . . truth would have
produced.’ ” Masson, 501 U. S., at 517. But the identity
of the relevant reader or listener varies according to the context.
In determining whether a falsehood is material to a defamation
claim, we care whether it affects the subject’s reputation in the
community. In the context of determining ATSA immu-nity, by
contrast, we care whether a falsehood affects the authorities’
perception of and response to a given threat.[
3]
III
Finally, the Colorado Supreme Court’s
analysis of material falsity was erroneous. We turn next to
explaining why, by applying the ATSA immunity standard to the facts
of this case.[
4]
A
We begin by addressing how to determine
the material-ity of a false statement in the ATSA context. As we
noted earlier, a materially false statement is generally one that
“ ‘would have a different effect on the mind of the reader [or
listener] from that which the . . . truth would have
produced.’ ” Ibid. The parties quibble over whether ATSA
immunity requires some special version of this standard, but they
more or less agree—as do we—that the usual standard suffices as
long as the hypothetical reader or listener is a security
officer.
A further question is what it means for
a statement to produce “ ‘a different effect on the mind
of’ ” a security officer from that which the truth would have
produced. In defamation law, the reputational harm caused by a
false statement is its effect on a reader’s or listener’s mind. But
contrary to the position of Hoeper’s counsel at oral argument, Tr.
of Oral Arg. 32–33, courts cannot decide whether a false statement
produced “ ‘a different effect on the mind of’ ” a
hypothetical TSA officer without considering the effect of that
statement on TSA’s behavior. After all, the whole reason the TSA
considers threat reports is to deter-mine and execute a
response.
A plaintiff seeking to defeat ATSA
immunity need not show “precisely what a particular official or
federal agency would have done in a counterfactual scenario.” Brief
for United States as Amicus Curiae 27. Such a showing would be
“impossible . . . given the need to maintain se-crecy
regarding airline security operations.” Brief for Re-spondent 42.
But any falsehood cannot be material, for purposes of ATSA
immunity, absent a substantial likelihood that a reasonable
security officer would consider it important in determining a
response to the supposed threat. Cf. TSC Industries, Inc. v.
Northway, Inc.,426 U. S. 438,449 (1976) (an omission in a
proxy solicitation “is material if there is a substantial
likelihood that a reasonable shareholder would consider it
important in deciding how to vote”). This standard “is an
objectiveone, involving the [hypothetical] significance of an
omitted or misrepresented fact to a reasonable” security official,
rather than the actual significance of that fact to a particular
security official. Id., at 445.
B
We apply the material falsity standard
to the facts of this case. In doing so, we neither embrace nor
reject the Colorado Supreme Court’s unanimous holding “that
immunity under the ATSA is a question of law to be determined by
the trial court before trial.” 2012 WL 9097764, *4; see id., at *11
(Eid, J., concurring in part and dissenting in part) (agreeing with
majority). Rather, we conclude that even if a jury were to find the
historical facts in the manner most favorable to Hoeper, Air
Wisconsin is entitled to ATSA immunity as a matter of law.
We begin with Air Wisconsin’s statement
that Hoeper “was an FFDO who may be armed.” App. to Pet. for Cert.
111a. Hoeper cannot dispute the literal truth of this statement: He
was an FFDO, and because FFDOs possess weapons, any FFDO “may be
armed.” Hoeper argues only that to avoid any misinterpretation, Air
Wisconsin should have qualified the statement by adding that it had
no reason to think he was actually carrying his gun during the trip
to Virginia, especially because he was not allowed to do so under
§44921(f )(1).[
5] We agree that Air
Wisconsin’s statement could have been misinterpreted by some, but
we reject Hoeper’s argument for two reasons. First, any confusion
of the nature that Hoeper suggests would have been immaterial: A
reasonable TSA officer, having been told only that Hoeper was an
FFDO and that he was upset about losing his job, would have wanted
to investigate whether Hoeper was carrying his gun. Second, to
accept Hoeper’s demand for such precise wording would vitiate the
purpose of ATSA immunity: to encourage air carriers and their
employees, often in fast-moving situations and with little time to
fine-tune their diction, to provide the TSA immediately with
information about potential threats. Baggage handlers, flight
attendants, gate agents, and other airline employees who report
suspicious behavior to the TSA should not face financial ruin if,
in the heat of a potential threat, they fail to choose their words
with exacting care.[
6]
We next consider Air Wisconsin’s
statement that Hoeper “was terminated today.” App. to Pet. for
Cert. 111a. When Air Wisconsin made that statement, Hoeper had not
yet been fired. But everyone knew the firing was almost certainly
imminent. Hoeper acknowledged that his employment was “at [Air
Wisconsin’s] discretion” after his third failed test, App. 193, and
the agreement between him and Air Wisconsin stated that his “fourth
. . . attempt” to pass the test would be his “final” one,
id., at 426. No reasonable TSA officer would care whether an angry,
po-tentially armed airline employee had just been fired or merely
knew he was about to meet that fate.
Finally, we consider Air Wisconsin’s
statements that Hoeper was “[u]nstable” and that it was “concerned
about his mental stability.” App. to Pet. for Cert. 111a. Al-though
the details of Hoeper’s behavior during the simulator session may
be disputed, Hoeper himself testified that he had become visibly
angry: He decided “that’s it,” he removed his headset and “toss[ed]
it,” and he accused the instructor—at an “elevated decibel level,”
and with an expletive—of “railroading the situation.” App. 203–204.
It would surely have been correct, then, for Air Wisconsin to
report that Hoeper “ ‘blew up’ ” during the test. 2012 WL
907764, *8. The question is whether, from the perspective of a
reasonable security officer, there is any material difference
between a statement that Hoeper had just “blown up” in a
professional setting and a statement that hewas “[u]nstable.” We
think not.
We are no more troubled by Air
Wisconsin’s related statement that it was “concerned about
[Hoeper’s] mental stability.” Hoeper is correct that many of the
Air Wisconsin officials who attended the meeting at headquarters
might not have framed their concerns in terms of “men-tal
stability.” LaWare, for instance, testified that “[t]hose weren’t
the words that [he] would have anticipated” when he directed Doyle
to call the TSA. App. 272. But the officials who attended the
meeting did harbor concerns about Hoeper’s mental state: They knew
he had just “blown up,” and they worried about what he might do
next. It would be inconsistent with the ATSA’s text and purpose to
expose Air Wisconsin to liability because its employee could have
chosen a slightly better phrase than “mental stability” to
articulate its concern. Just as “[m]inor inaccuracies do not amount
to falsity” in the defamation context, “so long as ‘the substance,
the gist, the sting, of the libelous charge be justified,’ ”
Masson, 501 U. S., at 517, a statement that would otherwise
qualify for ATSA immunity cannot lose that immunity because of some
minor imprecision, so long as “the gist” of the statement is
accurate. Doyle’s statements to the TSA accu-rately conveyed “the
gist” of the situation; it is irrelevant whether trained lawyers or
judges might with the luxury of time have chosen more precise
words.
Hoeper’s overarching factual theory
appears to be that members of the BAe-146 team, including Doyle and
Schuer-man, harbored personal animosity toward him, which caused
them to manipulate the proficiency tests in order to fail him. But
even if Hoeper were correct aboutall this (and we express no view
on that question), we do not see why it would have made him any
less a threat in the eyes of a reasonable security officer. As
between two employees—one who thinks he is being fired because of
his inadequate skills, another who thinks he is being fired because
his employer hates him—the latter is presumably more, not less,
likely to lash out in anger.
The partial dissent argues that Doyle’s
reference to Hoeper’s “mental stability” was so egregious as to
make his report to the TSA the basis of a $1.2 million defamation
judgment. We disagree. While lawyers and judges may in some
contexts apply the label “mentally unstable” to people suffering
from serious mental illnesses, see post, at 4 (Scalia, J.,
concurring in part and dissenting in part), that is hardly the only
manner in which the label is used. A holding that Air Wisconsin
lost its ATSA immunity by virtue of Doyle’s failure to be aware of
every connotation of the phrase “mental stability” would eviscerate
the immunity provision. 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 (or permit its employees to do so) without running by its
lawyers the text of its proposed disclosure—exactly the kind of
hesitation that Congress aimed to avoid.
The partial dissent further argues that
Hoeper’s “display of anger” made him no more a threat than
“millions of perfectly harmless air travelers.” Post, at 4. But
Hoeper did not just lose his temper; he lost it in circumstances
that he knew would lead to his firing, which he regarded as the
culmination of a vendetta against him. And he was not just any
passenger; he was an FFDO, which meant that he could plausibly have
been carrying a firearm. In short, Hoeper was not some traveling
businessman who yelled at a barista in a fit of pique over a badly
brewed cup of coffee.
Finally, the partial dissent relies on
an expert’s testimony “that Hoeper’s behavior did not warrant any
report to the TSA.” Post, at 4 (citing App. 356). But the expert
appears to have based that statement on an outdated understanding
of reporting obligations that is flatly at odds with the ATSA.
Prior to the ATSA, “airlines were responsible for assessing and
investigating possible threats to airline security.” 2012 WL
907764, *14 (Eid, J., concurring in part and dissenting in part).
But the ATSA shifted that responsibility to the TSA, creating a
policy “known as ‘when in doubt, report.’ ” Ibid.; see supra, at 9.
The expert who believed that Hoeper’s conduct did not warrant a
report to the TSA also believed that airlines have “an obligation
. . . to filter out . . . the low noise from
. . . what’s significant” in reporting threats. App. 356.
That understanding does not comport with the policy that Congress
chose to enact.
The Colorado Supreme Court recognized
that even if the facts are viewed in the light most favorable to
Hoeper, Air Wisconsin “would likely be immune” had it “reported
that Hoeper . . . knew he would be terminated soon, that
he had acted irrationally at the training three hours earlier and
‘blew up’ at test administrators, and that he was an FFDO pilot.”
2012 WL 907764, *8. But the court erred in parsing so finely the
distinctions between these hypothetical statements and the ones
that Air Wisconsin actually made. The minor differences are, for
the reasons we have explained, immaterial as a matter of law in
determining Air Wisconsin’s ATSA immunity.
By incorporating the actual malice
standard into §44941(b), Congress meant to give air carriers the
“ ‘breathing space’ ” to report potential threats to
security officials without fear of civil liability for a few
inaptly chosen words. New York Times, 376 U. S., at 272. To
hold Air Wisconsin liable for minor misstatements or loose wording
would undermine that purpose and disregard the statutory text.
* * *
The judgment of the Supreme Court of
Colorado is therefore reversed, and the case is remanded for
proceedings not inconsistent with this opinion.
It is so ordered.
