AIR WISCONSIN AIRLINES CORP. v. HOEPER
Section 125 of the Aviation Transportation Safety Act (ATSA) states that an air carrier who voluntarily reports suspicious transactions or behavior shall not be “civilly liable.” The immunity does not apply to disclosures made with “actual knowledge” that the disclosure is false, inaccurate, or misleading. Likewise, the immunity does not extend to an air carrier that makes a disclosure with “reckless disregard” as to its truth or falsity.
William Hoeper, a pilot for Air Wisconsin, made four unsuccessful attempts to become certified to fly another type of aircraft after Air Wisconsin discontinued use of the type of plane that Hoeper had previously piloted. During his fourth and final opportunity to pass the test, Hoeper abruptly ended the test because he believed that the test administrators were deliberately sabotaging his efforts to pass. One test administrator knew that the Transportation Security Administration (TSA) had issued a firearm to Hoeper in his role as a federal flight deck officer (FFDO). FFDO pilots are not allowed to carry the firearm while traveling as passengers. This administrator booked Hoeper on a flight from the testing center in Virginia to Hoeper’s home in Denver and then called the TSA to report that Hoeper was a disgruntled, and possibly armed, employee. In response, TSA officials arrested and searched Hoeper.
Hoeper sued Air Wisconsin in a Colorado state court and alleged defamation under Virginia law. Air Wisconsin moved for a directed verdict based on the argument that it was immune from civil liability under ATSA. Air Wisconsin also argued that Hoeper could not prove “actual malice” because its statements were “substantially true” and therefore protected by the Free Speech Clause of the First Amendment. The trial court denied the motion to dismiss. The jury found that Air Wisconsin’s statements to the TSA were false and that it made at least one statement with reckless disregard for the truth, so the jury awarded Hoeper damages. A Colorado appellate court affirmed the verdict. The Colorado Supreme Court held that the trial court’s submission of the matter to the jury was improper; however, the error was harmless in this case because Air Wisconsin was not entitled to claim immunity under ATSA. The Colorado Supreme Court further held that substantial evidence supported the jury’s finding that the statements were false.
1. Must a trial court decide whether the Aviation and Transportation Security Act grants immunity to a party before trial?
2. Does the Free Speech Clause of the First Amendment require a court to independently examine the record when reviewing a defamation case?
No. Justice Sonia Sotomayor delivered the opinion for the 6-3 majority. The Court held that ATSA immunity protects false statements, as long as they are not materially false within the ATSA context, which means that they would not affect a reasonable security officer’s perception of and response to a particular threat. Although Air Wisconsin’s report to the TSA contained slight inaccuracies, they would not have influenced a TSA security officer’s desire to investigate Hoeper, given the true facts that he was an FFDO and upset about losing his job. The Court further held that the Colorado Supreme Court erred in its analysis of material falsity and that Air Wisconsin was entitled to ATSA immunity as a matter of law.
Justice Antonin Scalia wrote an opinion concurring in part and dissenting in part in which he argued that, while he agreed with the majority opinion’s ATSA immunity analysis, he would have remanded the case for further proceedings. He argued that the issue of material falsity was an important question for the jury and that a reasonable jury could find that Hoeper’s conduct did not justify the making of any report to the TSA. Justice Clarence Thomas and Justice Elena Kagan joined in the opinion concurring in part and dissenting in part.
ORAL ARGUMENT OF JONATHAN F. COHN ON BEHALF OF THE PETITIONER
Chief Justice John G. Roberts: We'll hear argument first this morning in Case 12-315, Air Wisconsin Airlines v. Hoeper.
Jonathan F. Cohn: Mr. Chief Justice, and may it please the Court:
Not even Mr. Hoeper can defend the decision below and for good reason.
Under the plain terms of the statute and consistent with this Court's First Amendment precedence, truth matters, and airlines should not lose their ATSA immunity unless their statements are materially false.
None of that is in dispute anymore.
Also not in dispute, I think, is that Air Wisconsin was justified in picking up the phone, calling TSA and conveying certain core facts; namely, that Mr. Hoeper was mad at the airline; that he was a Federal flight deck officer or FFDO; that he had walked out on his training, his last chance to keep his job, and he was about to board a plane.
I don't believe any of those facts are in dispute.
What is in dispute is how those facts were framed or phrased to TSA in that call.
How the report was packaged and did--
Justice Antonin Scalia: I'm -- I'm not sure it -- you said it is conceded that -- that those things should have been brought to the airline's attention.
Has that been conceded?
I'm not sure.
Jonathan F. Cohn: --I think they--
Justice Antonin Scalia: I think -- I think they said if it -- if they were brought, they should have been brought in a different fashion, but I'm not -- I'm not sure they -- they have conceded that.
Jonathan F. Cohn: --I believe they have conceded, Justice Scalia, that those facts could have been conveyed, justifiably.
If we had conveyed those core facts using different words, there would not be any issue.
Justice Antonin Scalia: Well, you could convey anything justifiably, sure, I agree with that.
Jonathan F. Cohn: And the question, Justice Scalia, is whether we framed or phrased the report in an adequate manner.
And in assessing that issue, the question comes down to how much breathing space airlines should be given in making these reports.
How much room there should be for permissible characterization and expression in making these reports.
And context should be kept in mind in answering that question, three things in particular.
First, these reports are being made by airline employees such as pilots and flight attendants and baggage handlers and ticket agents who are being told by TSA, they have to report in realtime without investigation, without calling their lawyer, without stopping to think on how to refine the perfect script.
And they are being told to do this based upon their suspicions.
In some cases, suspicions of other people's emotions or state of mind.
That's one critical piece of context.
Justice Samuel Alito: Well, Mr. Cohn, on the--
Justice Ruth Bader Ginsburg: Can -- can we go back to your response to Justice Scalia?
You said that the Respondents conceded.
But -- but isn't it the case that it was the Colorado Supreme Court that said that the airline likely would have been immune if they had phrased the report more cautiously?
Jonathan F. Cohn: That's exactly right, Justice--
Justice Ruth Bader Ginsburg: So it's -- it's the Colorado Supreme Court, not the Respondent?
Jonathan F. Cohn: --I believe the Respondents have also acknowledged that a call could have been made conveying certain facts.
You're completely correct, Justice Ginsburg, that the Colorado Supreme Court said we'd be likely immune if only we had used different words and those different words are immaterial.
That lower court engaged in hairsplitting--
Justice Anthony Kennedy: You had -- you're saying -- you're saying there were three critical facts.
One is that these reports have to be made on suspicions right away in realtime by people like baggage handlers.
And your second point was?
Jonathan F. Cohn: --The second point of context is that these reports are being made to TSA, other reasonable air safety officials, for the purpose of passenger safety and aviation security.
And TSA tells the airlines, if you have any doubt, report.
If you see something, say something.
And if you don't say something--
Justice Anthony Kennedy: And then the third?
And your third?
Jonathan F. Cohn: --And the third piece of context is the consequences of a failure to make a report can be catastrophic for passenger safety and aviation security.
And that's why TSA says, if you don't report sincerely-held concerns, you might be sanctioned by us for failing to make the report, placing airlines between a rock and a hard place.
Justice Anthony Kennedy: In this context, it's not clear to me what the issue is that's before us.
My understanding is, is that there was no finding of falsity.
Now, the jury was instructed that it had to be defamatory.
Lawyers know that that means it has to be false, I assume.
And are you saying that, you know, the jurors weren't instructed as to the definition of “ defamatory ”?
Is that the point?
Jonathan F. Cohn: No, the issue is not about the jury instructions, Justice Kennedy.
The question's about the statutory immunity and the Aviation Transportation Security Act, ATSA, and whether that immunity requires a determination of whether or not the statement was materially false.
Justice Anthony Kennedy: By the court.
Jonathan F. Cohn: By the court in our view.
We think under any standard, we should prevail.
Justice Anthony Kennedy: What -- what position -- although they'll tell us in a minute -- does Respondent take on that issue that a determination by the jury suffices?
As you understand their brief.
They can talk for themselves in a few minutes.
Jonathan F. Cohn: I believe two things.
One, I believe they concede the legal question that material falsity is part of the ATSA analysis, and that's the question on which this Court granted cert. On the second question, which is not before the Court, is who should decide this issue, the court or the jury?
I believe they feel the jury should answer that question.
Again, that issue is not strictly before the Court, but I think on the issue that is before the Court, they agree that material falsity is part of the ATSA analysis.
Justice Anthony Kennedy: But isn't that implicit in the instruction to the jury that it has to be defamatory?
Now, if you say, well, even if it is, the judge -- the Court has a duty to determine as a matter of law at the outset, then that's something else.
Jonathan F. Cohn: Well, the jury -- and this is a question of the jury instructions, which are not being challenged, are not before the Court.
But the jury was not given instruction on materiality.
The jury, also, was not given instruction on clear and convincing.
They're not given instruction that the decision should be about what the effect would be on TSA.
So the jury didn't answer that question.
The jury shouldn't have answered that question.
Justice Antonin Scalia: But does defamatory require that it be materially false?
Can't I defame somebody with a statement in -- in which the derogatory information is not material to anything at all, but it's just derogatory?
Jonathan F. Cohn: Under the common law, Justice Scalia, the statement has to be materially false.
We agree with that.
And we also think that--
Justice Antonin Scalia: Has to be materially false to sustain what?
Jonathan F. Cohn: --To sustain a defamation judgment.
Of course, it depends upon State law, but generally under the common law the statement has to be materially false.
Chief Justice John G. Roberts: Material to -- to what?
Jonathan F. Cohn: In--
Chief Justice John G. Roberts: I mean, you can have a defamatory statement about a pilot that's not material to, you know, air safety.
Is that what materiality goes to, the particular reason that the statement is made?
Jonathan F. Cohn: --Mr. Chief Justice, that's a very important distinction, because in the common law context you're concerned about the effect on the person's reputation, his general reputation in the community, whereas in the ATSA context you're talking about a very particular listener.
The listener is TSA or a reasonable air safety official, and the purpose of the report--
Chief Justice John G. Roberts: So you're saying you can't defame -- someone gets immunity for a statement that would be defamatory in the common law context if made generally, but because it's made in the context of information about flight safety that's somehow immune?
Jonathan F. Cohn: --Correct, Mr. Chief justice.
The statement might be deemed defamatory if you don't have the ATSA immunity, but because of the ATSA immunity it's not materially false.
Chief Justice John G. Roberts: So you call some TSA official and say this pilot, you know, is having an affair.
Jonathan F. Cohn: That would not be immune because that would not be relevant to a suspicious transaction, suspicious activity, or passenger safety, so--
Justice Antonin Scalia: But it would still support a defamation, wouldn't it?
Jonathan F. Cohn: --Correct.
Justice Antonin Scalia: Because it is material to the person's reputation.
Jonathan F. Cohn: --Correct.
And it would not be immune.
But the report we had here is not that someone's having an affair, but, rather, the report we made is that someone might possibly be giving rise to a concern.
Justice Samuel Alito: --Well, on the report that was made here, suppose that the report said that the Respondent -- we believe the Respondent is mentally ill, or we believe the Respondent has serious mental problems.
Would you -- would you make the same argument if that's what was said?
Jonathan F. Cohn: With those words, I think I would, Justice Alito, because--
Justice Samuel Alito: You would?
Jonathan F. Cohn: --The same argument, yes.
Now, I think there are words that would cross the line.
I don't believe those words do because -- a couple things.
First, the gist of the statement is still the same.
The gist is this is a person who might possibly have a gun and might possibly be in a state of mind.
Justice Samuel Alito: Well, the facts as I understand it were that he became very angry during a test, during a flight simulation test.
He took off his headset, pushed back his chair, threw the headset, started cursing at the instructor, and then later, he was -- he was showing anger and cursing for a period of time in other parts of the facility.
Does it go beyond that?
Is that fair?
Jonathan F. Cohn: That's a fair characterization.
Justice Samuel Alito: All right.
And you think based on that, you could say, we believe this man is mentally ill?
Jonathan F. Cohn: Justice Alito, I'm keeping in mind the first important piece of context, which is these reports are being made by tens of thousands of aviation employees on the ground that could have different educations and socioeconomic backgrounds and might not all speak the way we do, especially in an uncertain context in which the facts are rapidly evolving.
Justice Sonia Sotomayor: I'm sorry.
What's so difficult about simply saying he's angry?
Why choose the word “ mentally unstable ”?
Isn't it with an intent to connote something more than the facts?
Jonathan F. Cohn: A couple things, Justice Sotomayor.
First, it's not -- the question is whether the gist of the statement is the same.
It's up to TSA to draw the connotations, the implications--
Justice Sonia Sotomayor: Well, yes, but from facts.
So isn't there a difference between saying someone's angry and someone's mentally ill--
Jonathan F. Cohn: --I think--
Justice Sonia Sotomayor: --has a mental problem or is mentally unstable?
Don't you think that the intent is to convey something else?
Jonathan F. Cohn: --Justice Sotomayor, I think that different people express the same thought in different ways.
I think a baggage handler in Boston or a flight attendant in LaGuardia might use different words, such as “ he lost it ”,
"he went off the deep end. "
“ he was acting irrationally ”, “ he blew up ”.
And the lower court said--
Justice Antonin Scalia: Yes, you could say he's nuts, but the question isn't whether could say it.
The question is whether that is false.
I mean, the mere fact that -- that a lot of people will -- will exaggerate and say things that are simply not true doesn't make it okay.
Jonathan F. Cohn: --Justice Scalia, a couple things in response.
First, this is not a situation in which there's a simple statement and the person hangs up.
There's a conversation with TSA, in this case a 10-minute conversation, in which they probe behind the facts and they found out what happened, that Mr. Hoeper was angry and upset and he blew up that morning at training.
And second, the lower court recognized this and said if we simply had used “ irrational and blew up ”, we'd be immune, as opposed to saying “ mentally ill ”.
Justice Antonin Scalia: The point is that somebody ought to determine whether the exaggeration or whatever it was was material, whether -- whether it would have made any difference to TSA if it had been described otherwise.
And in this case, as I understand it, as -- as the Colorado Supreme Court said, nobody has made that determination; right?
The Colorado Supreme Court says it doesn't make any difference whether -- whether it would have affected TSA or not, putting it -- putting it the proper way, right?
Jonathan F. Cohn: Correct, Justice Scalia, absolutely correct.
Justice Antonin Scalia: So that's what we're confronted with, simply the -- the need for somebody to make that factual determination, right?
And you're saying what?
There's no need to make it at all?
Jonathan F. Cohn: Oh, no, no.
Justice Scalia, we say that there is a need to make that determination.
The lower court said no need, material falsity is not part of the ATSA analysis.
Justice Stephen G. Breyer: Where did it say “ material ”?
I thought -- I thought -- I think so far as I've read this, the argument is about the truth or falsity of the statement.
And you're saying that the Colorado Supreme Court should have said it has to be false.
Isn't that your argument?
Jonathan F. Cohn: They had to say it.
Justice Stephen G. Breyer: Okay.
Now, I've looked at -- I've looked at footnote 17 or footnote 6 or whatever it is on page 17, and I think that their characterization of the Colorado Supreme Court is right.
That is, the Colorado Supreme Court is going to be very surprised if we tell them that they never said it has to be false.
What they said here is:
"In the determination of immunity, we need not and therefore do not decide whether the statements were true or false. "
Because, they say,
"The trial court properly submitted the case to the jury. "
"Accordingly, the jury was entitled to determine the elements of the defamation claim, including whether the statements were false. "
So as I read that, which I think you'll hear from the other side in about a few minutes, the -- the Colorado Supreme Court says: Look, the jury found that the statement was false, so we don't have to worry about that.
We're worried about whether the false statement was made with reckless disregard of its truth or falsity or knowledge that it was false.
That's how I read the footnote.
And they say something like that on page 30 and 31 of their brief.
So -- so if I'm right about that, what are we supposed to do?
Are we supposed to say that matters of truth or falsity are not for the jury?
Are we supposed to say that the jury went beyond what any reasonable person would go, would do here?
What is it we're supposed to do?
Jonathan F. Cohn: Justice Breyer, the lower court recognized that the ATSA immunity question is for the court to decide.
And because they left that issue, material falsity, to the jury, they said it's not part of the ATSA immunity analysis, and that's error.
Justice Ruth Bader Ginsburg: But did the jury -- did the jury find falsity?
Do you recognize that?
Did this jury find that the statement was, as you say, materially false?
Jonathan F. Cohn: --Yes, Justice Ginsburg.
The jury did make that determination, but--
Justice Ruth Bader Ginsburg: And how did -- how did they make it?
Because the only thing I see is the special verdict sheet and it doesn't ask that question.
Jonathan F. Cohn: --Correct.
What the jury did, first of all -- first of all, it shouldn't have gone to the jury because it's part of the ATSA immunity analysis, which is for the court to decide.
But second, the jury did not ask whether or not our statement would have a different effect on TSA, which is the proper test here.
Justice Antonin Scalia: There are two -- there are two different issues of falsity that we're talking about here, of materiality.
One is the defamation issue, and it is material to say that somebody is mentally unstable when all that he did was lose his temper.
That's my view of it.
That does not answer the question of whether calling him mentally unstable, instead of he lost his temper or just saying he lost his temper, would have produced the same effect with the airlines, whether the airlines, even if he had said, well, he lost his temper, he's been fired from his job, he may have a -- he may have a gun, whether that alone, without saying he was mentally unstable, would have induced the airline to take him off the flight.
There are two different questions.
Materiality for defamation is -- is quite different from the materiality for purposes of obtaining the immunity under this Act.
The latter question is for the court, but the former is for the jury, it seems to me.
Jonathan F. Cohn: I agree completely, Justice Scalia.
That's absolutely correct.
And unless this Court has further questions, I would like to--
Justice Stephen G. Breyer: I do.
I'd like an answer -- well, you can do it in your rebuttal, but I'd like an answer to my question.
Jonathan F. Cohn: --My answer, Justice Breyer, to your question is that the jury answered a different question.
They answered a question about whether it's material under defamation law, not whether it's material to TSA as required by ATSA and that determination not go to the jury.
That's for the court to decide.
And the lower court said: I'm not going to -- we're not going to address that question, we're not going to address it because it's not part of ATSA, and that was legal error, as even Mr. Hoeper concedes.
Chief Justice John G. Roberts: Thank you, counsel.
ORAL ARGUMENT OF ERIC J. FEIGIN, FOR UNITED STATES, AS AMICUS CURIAE, SUPPORTING THE PETITIONER
Eric J. Feigin: Mr. Chief Justice, and may it please the Court:
It's essentially undisputed that in order to encourage airlines to report suspicious activity to proper authorities the ATSA immunizes such reports when they're materially true.
I want to emphasize two main points about the scope of that immunity.
First, ATSA gives airlines very wide latitude in how they describe the suspicious activities.
These reports are made against an inherently uncertain factual backdrop, and that's why the statute protects reports of any suspicious transaction relevant to a possible violation of law or regulation relating to air safety.
Misconceptions and exaggerations can occur not only because of confusion about the facts, but because of the emotion, the stress, and potentially even the fear that may go along with making one of these reports.
Justice Samuel Alito: And, Mr. Feigin--
Justice Anthony Kennedy: Do you think that the statute, 44941, was intended by the Congress to incorporate the New York Times-Sullivan standard, the Masson v. New Yorker standard?
And -- and if so, then it -- it seems to me that the airline is under a duty more strict than the one that you have just explained and the Petitioner's counsel has explained.
Eric J. Feigin: Well, Your Honor, I think there's a distinction between Masson and this case.
Masson follows the more general defamation law rule about whether a statement is materially false in terms of a person's reputation, whereas here the focus is on what a reasonable security official would believe, and we think that's fairly seen in the text of the statute, which, again, protects statements about any suspicious transaction relevant to possible violation of law or regulation.
So what the statements are intended to convey is a suspicion of a possible threat and the gist in this context, what has to be true in this context, is the suspicion of the possible threat.
Now, I want to emphasize that because the statute talks about suspicions and possibilities, that the actual factual basis for what's reported doesn't need to be particularly strong.
Justice Anthony Kennedy: So -- so you want us to write an opinion to say that the -- that the statute here is to be interpreted differently than if it were a New York Times and Sullivan case or Masson-New Yorker case?
Eric J. Feigin: Well, Your Honor, I think the only reason real difference is the context.
I think in Masson, you were talking about readers of a general interest magazine, The New Yorker Magazine, whereas here, the audience for these reports is much more specialized.
It's law enforcement officers who are receiving reports of suspicious activity.
Now, they're not interested in someone's reputation as a general matter.
What they're interested in is what kind of threat the person might pose and what might happen to an airplane in the next period of time that they have to worry about.
And I think it's particularly important that the Court give wide latitude to statements in this context because there's a substantially similar provision that protects individuals who make reports to law enforcement authorities.
That's in 6 U.S.C. 1104.
And I think it would be very unfortunate if someone responding to the TSA's ubiquitous “ See something, say something ” campaign were to inadvertently or recklessly, as later concluded by a jury, have some sort of exaggeration about what they were reporting and then find themselves liable for civil damages just for trying to--
Justice Stephen G. Breyer: I accept that for the moment, accept all that.
What's bothering me, a picky little point.
But the picky point is that your statement of the question: Whether ATSA immunity may be denied without a determination that the air carrier's disclosure was materially false?
No, can't be.
But I read the footnote, Footnote 6, last sentence.
It says there was such a determination.
The jury made it, and we don't have to go back over it.
So what are you arguing?
Are you arguing that there should be like, as there is in free speech cases, you know, a special duty upon an appellate court to go back over such a jury finding?
Are you saying the Colorado Supreme Court was wrong in the second part of Footnote 6 when it says the jury made it?
What am I supposed to do in your opinion?
Eric J. Feigin: --Well, what you're supposed to do in this case, Your Honor, is that the jury -- the finding that the jury made -- first of all, the jury wasn't actually instructed on materiality.
Justice Stephen G. Breyer: They may have waived it, you know.
Eric J. Feigin: But assuming for the sake of argument the jury found the statements were materially false, it only did so in the context of the State law defamation verdict.
And as Justice Scalia explained and as I tried to explain earlier, there's a difference between materiality from the perspective of someone's reputation and materiality for purposes of the TSA in inquiry that's--
Justice Samuel Alito: --My understanding of what the Colorado Supreme Court did is this: On the issue of ATSA immunity, it said very clearly that is for the court.
And it says in Footnote 5 it gives no weight to the jury's findings of fact with respect to the facts that it found on the immunity question.
And then at the end of Footnote 6 what it said was, having found that there is no immunity, then it was proper for the trial judge to submit the defamation issue to the jury and the jury made findings on the defamation issue.
Is that -- is that your understanding as well?
Eric J. Feigin: --That's my understanding of the Supreme Court of Colorado's opinion, Your Honor.
Justice Samuel Alito: And are they right that in determining ATSA immunity the jury has no role, doesn't make findings of historical fact, who said what, anything like that?
Eric J. Feigin: Well, Your Honor, I don't think this is encompassed within the question presented, but our view, as we explain in Footnote 6 of our brief, is that under ATSA, questions of historical facts, such as what was actually said on the call and what actually happened, would be submitted to the jury.
Materiality is a mixed question of law and fact.
We believe that also, it should be submitted to the jury, but with very careful jury instructions, making clear the very wide latitude that airlines have in this context.
And because airlines have such wide latitude in this context, we think very often the courts will be able to get rid of these kinds of cases at the motion to dismiss--
Justice Sonia Sotomayor: So you disagree with Justice Scalia?
He drew a distinction between two forms of materiality, whether something's materially false, meaning is it misleading.
That, presumably, would go to a jury.
But whether or not this misleading statement would be material to the TSA or to security officers is a question for the court.
You disagree with that position by him?
Eric J. Feigin: --Again, Your Honor, we don't think the Court needs to address it here.
We actually think a jury would resolve the materiality question under the ATSA--
Justice Antonin Scalia: You'd give the jury two different instructions?
You are to find materiality for purposes of whether it's defamatory or not and then, having found that it is defamatory, you must make a second materiality finding, namely, would this defamatory statement have caused TSA -- if it had been accurate, would TSA not have taken the action that it did, not have removed this man from the flight?
You're going to give the jury those two instructions on materiality?
Eric J. Feigin: --We do think the court should give the jury separate instructions on ATSA and then if it passes the ATSA bar, you'd go on to defamation law.
But, Your Honor, I'm not going to fight the Court too hard if it wants to say that this is a question for the court.
What I'd really like to emphasize here is that--
Justice Sonia Sotomayor: I -- I actually would like your opinion, the SG's opinion, on whether this is an issue for the court or the jury.
I mean, you don't have to fight us.
What -- what is your view?
Eric J. Feigin: --Your Honor, we are comfortable with the Court saying that it's a question for the court.
Our reading of the statute is that it would be a question for the jury.
There'd be an instruction, as there was in this case, although not a proper instruction, on all the elements of ATSA, with the court making the law very clear to the jury that it has to apply for ATSA, and then if the jury gets past that, they would get a separate set of instructions.
Chief Justice John G. Roberts: Of course, you don't -- there's no reason, and presumably a good trial judge wouldn't instruct the jury on those two separate questions using the same word, right?
I mean, you could articulate what you mean by “ material ” in -- in each context.
In other words, you don't have to say it would be material to TSA.
It would say just, as my colleague has suggested, whether or not TSA would have done anything different if a different formulation had been used.
Eric J. Feigin: That's right, Your Honor.
I think you could ask how TSA would have understood the statement with their particular eye towards the suspicion of a possible threat that's being conveyed.
Justice Antonin Scalia: And you'd -- you'd feel snug and comfortable in making reports to airlines, knowing that whether you're going to be held liable is going to be up to some jury who is going to see that this person, his career was ruined, and it's going to be up to the jury to say whether he can recover or not?
Eric J. Feigin: Your Honor, we're comfortable--
Justice Antonin Scalia: That doesn't give me a lot of comfort.
If you're really concerned about enabling people to come forward without fear when they have a suspicion of something I'm saying, well, you know, some jury will decide whether you put it wrongly or not and if you're putting it wrongly would have made a difference, it doesn't make me happy.
Eric J. Feigin: --Your Honor, I think what's going to provide the adequate good feelings that airlines have making these reports, to make them feel safe making these reports, is for this Court to emphasize the very wide scope that the ATSA gives to how airlines characterize--
Justice Elena Kagan: Well, Mr. Feigin, they have that wide scope because of the actual malice standard, that somebody needs to show that there was actual knowledge of falsity or reckless disregard as to falsity.
And you're saying that we should do something different.
You're saying that we should expand what falsity means in this context as a sort of extra protection, and I guess why is that true?
Eric J. Feigin: --Well, Your Honor, I don't think we're doing anything different from the actual malice standard except taking account of the context.
In this particular context, where there's a lot of factual uncertainty, a lot of emotion mixed in, and the audience aren't readers of, for example, a general interest magazine, they are security officials looking for suspicion of a possible threat, we think the scope of the materiality test is very broad.
Chief Justice John G. Roberts: Thank you, counsel.
ORAL ARGUMENT OF KEVIN K. RUSSELL ON BEHALF OF THE RESPONDENT
Kevin K. Russell: Mr. Chief Justice, and may it please the Court:
There are two sets of questions before the Court here.
There's a legal question about the proper interpretation of ATSA and maybe some subsidiary questions about the division of authority between judge and jury and what the materiality standard is; and then there's a question about what to do with this case.
And those two sets of things should be considered differently because much of what's being argued here today was not presented to the lower courts.
Justice Anthony Kennedy: So suppose I'm the trial judge and I conclude that if Air Wisconsin had said to the TSA, along the lines of Justice Scalia's earlier question, We have an employee who was terminated today.
He probably knew it.
He lost his temper during a test.
He might think that some of our employees are out to get him and there may even be some truth to that.
He's authorized to carry a gun.
We don't know if he has one or not.
We're giving you that information.
Suppose I'm the trial judge.
I conclude that if that information had been given to TSA, TSA quite properly stopped this plane to examine the pilot.
Do I send the case to the jury?
Kevin K. Russell: Let me unpack that.
I think there is three parts to that question.
The first is, implicit in that is ATSA immunity factual questions for the court or for the jury?
And we agree with the government that you should apply the ordinary qualified immunity standards and historical disputes about the facts are handled by the jury.
Of course, if the court can say, look, even on the plaintiff's view of the facts immunity is proper, you can enter summary judgment.
The second question is what is the materiality standard.
Justice Scalia, you've suggested that the standard is would TSA have done the same thing any way?
And I take the government even to be saying that that's not the right test, because we can't know because TSA won't tell us.
TSA has to keep secret its procedures about what it would do and when; and as a consequence, I think the proper standard is the standard that applies under New York Times and in other defamation cases, which is the Masson standard: Would a true statement have a different effect on the security officials' mind?
And we think you can have a gloss on that.
Justice Anthony Kennedy: The Masson reporter for the New Yorker Magazine spent months on this article.
They had proofreaders, they had editors in New York.
And you're saying the same standard applies to the baggage handler who has only 10 minutes to decide what he's going to say?
Kevin K. Russell: I'm saying the same standard of material truth applies.
Actual malice, the subjective good faith, is the principal protection afforded to the baggage handlers.
Even if what he says is blatantly materially false, so long as he believe it, so long as he acted in good faith, he's protected here.
So the question is, what happens when somebody like Mr. Doyle, who has been found to have acted in bad faith, and that's not challenged here -- does he nonetheless get immunity because what he said was materially true?
We think the standard--
Justice Ruth Bader Ginsburg: Can we go back to the “ who decides ” question.
I find it very confusing.
Now everybody seems to say, well, it's the jury that decided -- that decides, but the Colorado Supreme Court said that it recognized that the court was to decide this question, not the jury.
And in this case the jury decided it.
That was error, the Colorado Supreme Court said, but it was harmless.
So who decides?
Is it -- is it the court or the jury?
Kevin K. Russell: --I think that the answer to the legal question is that you have the same division that you have in qualified immunity, that material disputes of facts are resolved by the jury and then the court reviews those -- those findings under the normal--
Justice Anthony Kennedy: So under my question I first asked you, I'm the trial judge, I have made the determination that TSA would have acted the same way.
I still have to submit this to the jury?
Kevin K. Russell: --If -- if you think that there's no disputes about those facts, that no reasonable jury could conclude otherwise on those facts, and you think--
Justice Anthony Kennedy: No, I thought that even if the facts had been reported much more accurately than they were, that the TSA still had a duty to investigate.
Kevin K. Russell: --All right.
Justice Anthony Kennedy: Can't I make that determination as a matter of law?
Kevin K. Russell: I don't -- I think the materiality question goes to the jury, subject to review by the court on the motion for directed verdict, whatever.
But there's also -- I also want to make clear that I disagree with the premise of that question about what the standard of materiality is, and it's not whether TSA would have acted differently.
It's whether TSA would have had a different impression about facts that are undoubtedly material to their determination not only about the extent of the threat, but also what to do in the immediate aftermath.
They have to make a decision from the get-go, not only whether to investigate or not, but whether or not to respond by sending an officer down or scrambling a SWAT team.
And certainly being told that somebody is mentally unstable and may be armed is going to be materially -- be a materially different impression on their minds about those questions.
Justice Elena Kagan: I guess I'm not sure what you just said, because even the way you just phrased that, you're asking what TSA would have done.
How else can we think about materiality other than by asking, well, if you were a TSA officer and you heard this what would you have done?
Kevin K. Russell: You apply the Masson test, which is would a truer statement have a different effect on the mind of the reader?
It doesn't mean that they have to have done something differently.
It's just that they understand the facts differently than they do based on what was said.
Chief Justice John G. Roberts: So you're saying if it made a difference in their mind whether to send one officer to his house or a SWAT team somewhere else that's material and you lose immunity?
Kevin K. Russell: That's materially false, yes, if the difference would have made a difference--
Chief Justice John G. Roberts: If the difference -- if the difference in the language causes TSA to do anything differently, then you lose immunity?
Kevin K. Russell: --I think you would, but that's not the question.
The question is, would the statement have a different effect on the readers or the listeners.
Chief Justice John G. Roberts: A different effect -- a different effect on who?
Kevin K. Russell: The listeners, the TSA.
Chief Justice John G. Roberts: The TSA.
So, but that's what I'm saying.
Let's say the TSA person looks at it and says, ah, this is -- you know, if it had been phrased as you say, ah, this is silly, I'm not going to do anything.
But he says, well, it looks silly to me, but I'm going to send it to my supervisor.
That's a different effect on the listeners' mind and you say that difference causes the airline to lose immunity.
Kevin K. Russell: I think so.
And in addition, whatever you say about this, you should also keep in mind what was actually argued below.
Let me say a few things about how this went down.
Justice Samuel Alito: Well, before you get to that, before you get to that, to finish up on the point you were making earlier, suppose that the report is he ranted for 10 minutes, and then suppose the jury found he ranted for 7 minutes.
Now, maybe those 3 minutes would make a difference, make a difference in the impression on the TSA.
That would be enough in your view?
Kevin K. Russell: I think it has to make a difference in the way that they would evaluate the existence, nature, or extent of the threat.
And so it wouldn't make a difference to the way that they evaluated the nature or the extent of the threat then it's not material.
But keep in mind, the way that this case was litigated below, they themselves proposed the Masson standard.
And it's -- we've reproduced their brief to the Colorado Supreme Court.
It's on page 30a.
"A statement is not considered false unless-- "
Justice Antonin Scalia: Where are you reading?
Kevin K. Russell: --Page 30a of the Red Brief.
It is where we reproduced their Colorado Supreme Court brief.
And on page 30a, they say:
"A statement is not considered false unless it would have a different effect on the mind of the reader than what the pleaded truth would have produced. "
and they cite Masson.
"This new-found ATSA-specific materiality test comes largely from the United States' invitation to brief at the cert stage in this case. "
And they never asked for an instruction on materiality at all, much less an ATSA-specific materiality instruction to the jury.
They never argued for an ATSA-specific materiality test in the lower court.
Justice Anthony Kennedy: Well, I think you're right.
They seem to rely mostly on the proposition that this all should have been submitted to the judge.
Kevin K. Russell: That's correct.
That was their principal argument below and that's clearly wrong.
And the United States agrees with us that that's not the right way to -- to go about dealing with this.
This is a statute that is premised on -- that is based on the model of qualified immunity.
In the Federal courts, qualified immunity factual issues are submitted to the jury and subject to ordinary appellate review, sometimes heightened appellate review with--
Justice Ruth Bader Ginsburg: What are the factual issues?
You said the factual issues.
I didn't think that there was much dispute about what was said to the air traffic safety.
So what are -- what are the disputed facts that the jury would find relevant to the immunity?
Kevin K. Russell: --So the materiality consider compares what was said -- and you're right, there's no dispute about that -- and what was true, and there's a lot of dispute about that.
But we think that at the end of the day, even if you say that it's a question of law for the court, even if you take it upon yourselves to decide it, we don't think that there's any way in which they can say that these statements were materially true.
Chief Justice John G. Roberts: So am I right in understanding that there be two -- you would view these two scenarios differently?
The same historic facts.
Somebody calls and said this happened, this happened, this happened.
He was acting crazy.
And the next one, this happened, this happened, this happened and he's crazy.
Do you think you lose immunity in the latter case, but not the former case?
Kevin K. Russell: No, I think you'd lose in both.
Chief Justice John G. Roberts: You would lose in both.
Kevin K. Russell: Yes.
I mean, I think in both--
Chief Justice John G. Roberts: So a layperson -- a layperson who, you know, just looks at this and said he's acting crazy, they're not immune from that.
If they called TSA and say that, everything is true, I guess you would say up until that characterization.
Kevin K. Russell: --Well, let me be clear about that then.
If they give all the -- all the facts -- and I'm not sure what all the this is true, this is true, this is true -- they simply explained all the facts and then appended to it their evaluation that he was crazy, I don't think they would be immune.
I think they lose immunity for that.
But that's not what happened.
Chief Justice John G. Roberts: But they would be -- the airline would be immune.
Kevin K. Russell: The airline would be immune, correct.
But that's not what happened in this case.
Chief Justice John G. Roberts: No, no.
But I'm trying to find out if you think there's a difference between the person's subjective, uneducated evaluation, “ he was acting crazy ”, and a difference between that person saying “ he's crazy ”.
Kevin K. Russell: I don't think there's a difference between that.
What's the difference is when the person asserts that somebody is mentally unstable as a fact and doesn't give the background facts to allow somebody to make an alternative--
Justice Sonia Sotomayor: So other than proving at trial that these statements were misleadingly false, or false, how did you prove that the statements would have had an effect on a reasonable security officer?
Kevin K. Russell: --Well, let me -- sure.
Justice Sonia Sotomayor: How do you -- what's the evidence that you expect parties to present and what was it you presented to show that their response would have been different?
Kevin K. Russell: Well, let me ask -- answer the second question first, which is we had an expert witness who was formerly in charge of writing security regulations for TSA and the FAA before that who testified that in light of the truth, a call wasn't even warranted, but that he perfectly understood why TSA acted the way it did given the contents of the call.
Now, this wasn't a focus because nobody made the argument that this could be a materially false--
Justice Stephen G. Breyer: But we have granted cert on this question.
So -- so given that fact, could we do this: One, yes, it has to be false; two, the Colorado Supreme Court, because of Footnotes 5 as well as 6, which I haven't picked up, and other things they've said, is at least ambiguous about the role the jury's finding played.
And given that fact, what we'll do is we'll go through and see where the parties agree about what happened in -- in the world, and insofar as they agree, we'll take it, you see.
Your side will get the underlying assumption and looking at it as it's agreed upon, we find either that it would be or wouldn't be within the scope of the immunity.
And on that one you might lose.
But is there -- is there -- what do you think of that procedure?
Kevin K. Russell: --I definitely think that it would be appropriated for this Court to write an opinion that says, look, to the extent Footnote 6 suggests that some true statements aren't protected by ATSA, that's wrong.
Justice Stephen G. Breyer: No, it doesn't say that.
It says -- Footnote 6 has to be read with Footnote 5, which I hadn't picked up.
And once I put those two footnotes together, I have no idea what the Colorado Supreme Court says.
Kevin K. Russell: Well, I think you can say, look, we don't know what it means, but to the extent it means that ATSA doesn't affect all true statements, that's wrong.
But in this case, the jury found, and three courts -- Colorado courts affirmed, that the statements weren't true.
And, Justice Ginsburg, there was an instruction to the jury, and in Instruction No. 9 at page 579 of the Joint Appendix, AWAC told the jury that to enter a verdict, they had to find that the statement was false.
So the jury found that that was false.
On appellate review, two courts of appeals found that there was sufficient evidence for that, even though they didn't ask for a materiality instruction.
Those two courts resolved every material falsity claim or every materiality objection that AWAC actually raised in the context in which it actually raised it, which was whether we had satisfied our version -- burden to prove the elements of common law defamation.
Justice Samuel Alito: Well, on two of the -- on two of the three statements, the difference between the literal -- the very strict truth and what was said is very slight.
You dispute that.
They'd said he's an FFO officer and he may be armed.
Kevin K. Russell: I think that there's a huge difference.
There's no reason to say that he may be armed.
Justice Samuel Alito: That's literally true.
It's literally true.
He's an FFO officer.
He has a gun.
He may be armed.
Kevin K. Russell: Suppose I were to know that there is a lawyer in town who has a concealed carry permit, and I know he has a hearing at the courtroom -- at the courthouse down the road later today.
If I were to call the security folks there and say, hey, just to let you know, there's a -- there's a lawyer coming to the argument and he may be armed, everybody would understand that I was saying to them that there was something more than the theoretical possibility that he's armed and that I have some information to believe that he is violating or intending to violate the law that prohibits him from bringing that gun to the court.
Justice Samuel Alito: What would be a true statement?
Kevin K. Russell: True statement would be--
Justice Samuel Alito: Not with respect to the lawyer; with respect to your client.
Kevin K. Russell: --I think it would have been true for them to say, look, we're calling to let you know because Mr. Hoeper's an FFDO, we don't have any reason to believe that he has gun with him, but we can't tell for sure, so we just thought we would tell you in case you have any questions and want to investigate further.
By not saying -- by not qualifying “ may be armed ” with the statement that
"we have no reason at all to believe that he actually has a gun. "
which is the truth, I think they gave a very different impression -- and Mr. LaWare, for example, the vice president who made the decision to make the call, testified that if he had been told, as a pilot, that a mentally unstable person who may have a gun was boarding his plane, it would make him very concerned about the safety of his crew and passengers.
This is at JA 72 to 272.
And as a consequence, he said those aren't the words I would have anticipated being used, because he recognized as somebody in the industry what effect those words would have on a reasonable security person.
Justice Samuel Alito: But you're talking about a very subtle implication of the statement.
And I agree with you, there's an implication there that may not be justified, but you're talking about something very subtle in -- in the context of -- of someone making a call to report a possible threat.
Kevin K. Russell: Well, again, I don't think it's that subtle.
I think an ordinary person would -- would think I was being misrepresenting in the example that I gave, which I think is the same.
But in any event--
Justice Anthony Kennedy: Well, just pursuing Justice Alito's point about the other statement, the other that he was terminated today.
Well, he didn't get notice.
I mean, that's--
Kevin K. Russell: --We acknowledge that that is not an important part of our case.
Justice Anthony Kennedy: --Okay.
And then the final thing, I guess, was the same thing Justice Scalia had in mind, was that he's unstable.
Kevin K. Russell: Mentally unstable.
And that's -- you know, this Court has used the phrase “ mentally unstable ” as a shorthand for describing people who are subject to involuntary commitment, and people who are barred by Federal law from owning a gun.
These are trigger words in -- in this context.
Chief Justice John G. Roberts: Well, you're not suggesting it would be a different case if they just said he's unstable as opposed to he's mentally unstable, are you?
Kevin K. Russell: No, because I would understand that they're not saying that he might fall over.
Chief Justice John G. Roberts: Well, that's what you were saying.
When Justice Kennedy posed the question that he was unstable, you said “ mentally unstable ”.
And my point is that that doesn't make any difference to your case, does it?
Kevin K. Russell: No, it doesn't.
I didn't mean to be facetious about it.
But the point is that whether they said “ unstable ” or “ mentally unstable ”, everybody understood it was the same thing, and it had the same implication, which is very serious.
Justice Ruth Bader Ginsburg: Well, they didn't -- they said we were concerned about his mental stability.
Kevin K. Russell: They said that, but they also said he is unstable.
They said unstable pilot.
And when you couple those together, even if they just said they were concerned, I think that would be false and misleading, in part, because they weren't.
I mean, we had testimony.
We asked them,
"Did you think that Mr. Hoeper was mentally unstable? "
And Mr. Orozco said,
"I don't believe he was mentally unstable. "
Justice Samuel Alito: Well, do you think it makes a difference we're talking here about a pilot?
I mean, my impression of pilots is that they are supposed to remain perfectly calm even when terrible things happen.
Well, all the -- you know, all engines are on fire and one of the wings has fallen off, but, you know, you don't start ranting and screaming.
And so someone described him as acting in a manner that was more unprofessional than they had ever seen.
Do you think that makes a difference?
Kevin K. Russell: I think you could take that into account.
But you also have to recognize that, hopefully, this wouldn't be the same because most people don't get treated as unfairly as Mr. Hoeper was.
And I think there is abundant evidence for the jury to conclude that he was acting with, maybe not the best way, but he was acting within the -- the spectrum of normal human reaction to being treated that unfairly with respect to something that important.
Justice Samuel Alito: But maybe for ordinary people, but how about for pilots.
Kevin K. Russell: I think even for pilots.
For example, Mr. Sherman, who is a pilot, who's trained in spotting threats, testified -- he's the one who got yelled at -- testified that when he left the training center he didn't think that Mr. Hoeper was acting irrationally, he didn't think that he was a threat.
He was shocked to learn that calls to TSA had actually been made.
And Mr. Orozco talked to him briefly before he boarded the flight, and he knew at that point that he was an FFDO, he was a pilot, he knew about the last chance letter, he knew about the prior incidents of pilots taking down airplanes.
And he told him: Go ahead, and get on the flight.
There really isn't -- these are the people who would know what is surprising and concerning about the conduct of our client in this case, and none of them were willing to say that he was in fact mentally unstable, and that's telling.
Even if they are willing to say now, through their lawyers, that they had concerns about his mental stability, the fact that they weren't willing to say that he was mentally unstable shows that they recognized that there's a material difference between those two statements.
Otherwise they would have said: Yes, he was mentally unstable because we had concerns about his mental stability and that's the same thing.
Justice Stephen G. Breyer: All of us have had the experience, at least I have, if I get very angry at something, one of my children will say: God, he's mentally unstable.
See, I mean, that's -- people use that word in different contexts.
And what's worrying me is that some real threat comes along and the lawyers get involved and the people are going to report it to the TSA, start watching their words and they don't know what the lawyers mean exactly.
And you understand the problem.
Kevin K. Russell: I understand.
Justice Stephen G. Breyer: So why isn't the best thing to say is, look, there is leeway here, considerable leeway on the part of the airline or anyone else who's reporting, that are reporting things to TSA.
All it means is they are going to search him more thoroughly.
Kevin K. Russell: There is enormous leeway already and that is in the actual malice standard.
So long as the person believes that what he is saying true, so long as he doesn't suspect that it's untrue.
He has immunity, even if it's grossly untrue.
And that's the -- that's I think one of the reasons why, and you have that protection under the First Amendment to start with.
And that's one of the reasons why we're able to identify only six cases, and this is one of them, in the entire ten-year history of the statute when anybody's even cited this provision in an opinion, published or unpublished, State or Federal.
And that's because the protection that's afforded by the actual malice standard which comes in the First Amendment, but also in this statute, provides ample protection for people who are acting in good faith.
And I don't think that you need to come up with some special materiality lite standard under this statute, particularly when there's no reason to--
Justice Elena Kagan: Mr. Russell, weren't you yourself suggesting the twist on the materiality standard?
You said it shouldn't be -- in the usual case, we said would it have had a different effect on the mind of essentially the average reader, the reasonable reader.
And you say: No, here we're not supposed to think of the reasonable person generally; we're supposed to think about the reasonable TSA officer.
Haven't you conceded that yourself?
Kevin K. Russell: --Well, I think that's -- that's an application of the Masson standard, which is if you know who the reader is.
I think it's reasonable to ask the jury to think about who the reader is, but it's a world of difference to say--
Justice Elena Kagan: Well, how do we know about the reasonable TSA officer?
I mean, you made the point that we don't know a lot about TSA officers in terms of what they are going to do with respect to any given set of facts, and, you know, I find it a little bit hard to think about the question, what does a reasonable TSA officer think, without thinking about the question, what's a reasonable TSA officer going to do.
Kevin K. Russell: --Well, you have the same problem with figuring out what he's going to do.
In fact, it's much harder.
So I think whatever -- if you adopt that standard, you have the same problem with my standard.
And I think my standard's easier to deal with.
I think you can look at -- you can have expert testimony, as we did.
You can look at -- you can ask the people who are in the industry and involved in the case, as we did.
And they all seem to recognize that saying somebody is mentally unstable versus saying we have concerns about his mental state or that he is angry would have a hugely different effect on a listener's mind in that industry.
That's why Mr. LaWare said he would be very concerned if those words were used and said--
Justice Sonia Sotomayor: I'm sorry.
Tell me the difference between having a huge effect on that listener's mind and the listener taking a different action?
I'm not sure how -- what the difference is.
Kevin K. Russell: --Well, the difference is -- I mean, what Mr. LaWare was saying is it calls--
Justice Sonia Sotomayor: I'm more upset--
Kevin K. Russell: --I'm more--
Justice Sonia Sotomayor: --but -- I'm more concerned, but I'm going to take the identical action?
Kevin K. Russell: --Well, I'm saying that you don't have to figure out what they would have done.
In part this is just general defamation law, right?
You are entitled to presume damages so long as what is said affects your belief about this person.
And there's nothing in this statute, there's nothing in the text of the statute, that alters that ordinary standard.
Chief Justice John G. Roberts: Well, but it affects your belief is different in a context like this.
It may not affect your belief, but you may decide, but given what's at stake, I don't think he's mentally unstable just because somebody calls and says that, but I'm going to send it up to my supervisor, make sure he feels the same way.
And you tell me that you lose immunity if he says, I don't think he's mentally unstable and throws it away, as opposed to when he says, I don't think he's mentally unstable but let's see what the boss thinks.
Kevin K. Russell: Certainly what they do with the information is reflective of the effect it has on their minds.
So we do think that in any case you could show that TSA would have acted differently.
You would necessarily be showing that it had a different effect on their mind.
But the problem is TSA is not going to tell us what they would have done if a different statement had been made.
This is not a standard that can actually be applied in the real world.
And at the end of the day, it's not necessary because there is substantial protection already provided to good faith speakers who will know that so long as they are believing what they say, they can say whatever comes to their mind without having to consult with their lawyer.
In any event, even if this Court thought that was the standard, even if you thought, and we're willing to forgive them for not raising that standard in the Colorado courts, we do think that on this evidence there was a basis for concluding that TSA would have acted differently had they known the truth.
And that's because, as I said before, we had expert testimony from somebody who is very qualified in this area who said that had he known the truth as a TSA official he wouldn't have wanted to receive a call.
And that -- he perfectly understood the very dramatic response given the content of what was actually said.
Justice Elena Kagan: So what are the other things TSA could have done?
I mean, let's assume that this call was made and it was a much more -- in tone, it was much more factual and without using any of these words, but it said the guy really lost his temper and, you know, he has this license and we have no idea whether he, in fact, is carrying a gun, but he could be?
What could the TSA officers have done?
What do you think they should have done short of what they did?
Say that they were concerned, they thought this might be a problem?
What are the midlevel possibilities of a response?
Kevin K. Russell: So one possibility is -- it depends very much on when the call was made.
Part of the difficulty here was raised was that Mr. Darr waited for two and a half hours after receiving this information before making the call.
Had the call been made earlier, there was testimony there was lots of things they could have done.
They could have called and checked to see if he had checked in his gun at security.
They could have found him.
They could have called him on his cell phone.
But even having waited as long as they did, they could have asked somebody on the airplane to just go and ask him and talk to him and see if there was reason to believe that there was something amiss that would require going back to the gate.
Now, I acknowledge that, again because the call was so late, there really wasn't a ton that could be done, but that's not a reason to give them greater leeway.
Justice Anthony Kennedy: So you want us to say the call has to be made right away without reflection, without talking to supervisors, without some quiet discussion first?
That's what you want us to put in the opinion?
Kevin K. Russell: No.
TSA has told people, report what you know immediately.
And so we do think that Mr. Doyle's conduct, in which he wasn't consulting with supervisors -- he did nothing during that two-and-a-half hours that would reflect that he had an actual concern about mental stability or danger here.
Justice Sonia Sotomayor: I thought I read somewhere that after this incident there was a discussion between or among Mr. Doyle and various government agencies to figure out how to avoid something like this in the future.
Kevin K. Russell: He did testify to that fact, yes.
Justice Sonia Sotomayor: Who testified?
Kevin K. Russell: Mr. Doyle did.
Justice Sonia Sotomayor: And what was your sense -- I don't remember the testimony now.
Kevin K. Russell: I don't think he gave any details about the content of that discussion.
But certainly you can understand why TSA would not want something like this to happen again because, you know, when somebody is given false information that -- particularly when it leads to an elevated response that wouldn't have been necessary under a proper report, that gives rise to security concerns and dangers in itself.
When you send armed men onto a plane full of nervous people in close quarters who don't know what's going on and officers who believe that there may be a man on the gun -- with a gun who's mentally unstable on the plane, that is a recipe for danger and for accidental things to happen and for people to get hurt, in addition to diverting attention from things that might be actually more serious incidents that are going on at the same time.
Congress didn't think that the way to promote airline security here is simply to give carte blanche immunity to anybody who reports anything about suspicious activity, if they thought they could have ended at subsection A.
Instead, they recognized that there's a balance and that people who make bad faith reports that are materially untrue ought not to be immune, recognizing that there might be some deterrent effect at the margins, but acknowledging the need to strike this balance.
And in this case, whatever you end up doing in this case, and I would like to come back, before I leave, to this point, that this case has been litigated up the chain without any request for ATSA-specific materiality instruction, with the court addressing every material truth objection that was actually made in the context in which it was made.
And it's important to point out that they never, even when they argued material truth, argued that mentally unstable or were concerned about mental instability was materially true.
The only argument they ever made about that, and you can read it at the appendix to the Red Brief, was that this was a protected statement of opinion because it could not be true or false.
And there's a world of difference between saying that something isn't true or false and saying that it is true.
Because to determine whether it's protected opinion, you only have to look at the statement to determine whether it's substantially true.
You have to look at the evidence.
And so they have not -- at the very least, they have not preserved any argument that the statement “ mentally unstable ” was materially true.
So at the end of the day, we think that you can satisfy the government's need for clarity about what the legal standard is by simply saying ATSA protects true statements, full stop, but, nonetheless, affirming this case, the opinion in this case on the ground that the Colorado court asked whether these statements were true and said that there was sufficient evidence that they were not and resolved every materiality objection that they actually made in the course of their opinion.
The fact that they did it under a different subheading, that they asked the right question under the wrong subheading, isn't a ground for reversal in this case.
Justice Ruth Bader Ginsburg: How do you add to the question -- the question in this case was put by the Court -- the question whether ATSA immunity may be denied without a determination the air carrier's disclosure was material and false?
Kevin K. Russell: The answer to that question is no, with the caveat that an appellate court has no obligation to resolve materiality objections unless they're actually raised by the defendant.
Chief Justice John G. Roberts: Thank you, counsel.
Mr. Cohn, you have three minutes remaining.
REBUTTAL ARGUMENT OF JONATHAN F. COHN ON BEHALF OF THE PETITIONER
Jonathan F. Cohn: Mr. Chief Justice, and may it please the Court:
Two very quick points: First, the mixed question, the application of law to facts most certainly should be decided by the Court, not the jury just like this Court held in Muehler versus Mena or Nellis and Congus.
The historical facts are a separate question, but the ultimate question of materiality is one that should be decided--
Justice Sonia Sotomayor: Well, how do we decide what a reasonable security officer would do?
Jonathan F. Cohn: --How do we decide it?
Justice Sonia Sotomayor: How does -- how -- how do we as judges?
I'm not sure how juries would do it, I'm not quite sure judges would do it.
So what evidence did you proffer?
He says he had an expert.
What did you have at trial?
Jonathan F. Cohn: We had experts, too.
And judges should resolve it just like they resolve issues of reasonable force and probable cause.
They have to use judgment and common sense in light of the broad leeway that TSA should be given in answering these question.
But the important thing is resolving that issue at the earliest possible stage.
Justice Sonia Sotomayor: Yeah, but we don't decide whether it was reasonable force if we think there's a question about that.
Jonathan F. Cohn: If there's a question of historical fact, if there--
Justice Sonia Sotomayor: No, no.
Not a question of historical -- if there's a question about how a reasonable officer would respond.
There's competing experts.
Who decides that question?
Jonathan F. Cohn: --Well, the--
Justice Sonia Sotomayor: And there are some levels of -- of force that we can say as a matter of law don't qualify as excessive.
And we have said that, but when have we said that what might be excessive to one -- to some is a jury question?
Jonathan F. Cohn: --According -- Nellis said the ultimate question is for a court to decide.
But our point is, first of all, the lower court here said the question is for a court to decide for ATSA immunity.
But under any standard, we should still prevail because the matter of law, the statement here simply is immaterial.
Falsity -- the alleged falsity is immaterial.
Under any standard, the Court should hold as a matter of law the standard here is immaterial.
And the second point I was going to address is the Court should address that application question in this case because airlines need guidance.
They need clarity.
They need predictability on what the law is.
And right now, there's no predictability because the lower court held that hairsplitting distinctions make a difference.
That the difference between fire today and fire tomorrow is a material difference.
And the Court should make clear those hairsplitting distinctions do not make a difference.
Justice Elena Kagan: Well, Mr. Cohn, what if I think that a TSA might have reacted differently to what was actually said and to what really should have been said?
Would they have reacted either way, they should have done something either way, but they would have done a different kind of thing?
What if I think that?
What does that suggest about the proper resolution of this case?
Jonathan F. Cohn: I would say it matters on whether that different thing is material.
So, for instance, if it's sending one officer versus two officers to the plane, that's not material.
That does not make a difference.
This is a case this Court should decide.
There's no material distinction between mental stability and mental state or rationality or blow up.
Thank you, Mr. Chief Justice.
Chief Justice John G. Roberts: Thank you, counsel.
The case is submitted.