Material Falsity in Defamation Cases: the Supreme Court's Call For

Material Falsity in Defamation Cases: The Supreme Court’s Call for Contextual Analysis

Charles D. Tobin and Len Niehoff

n the book The Phantom Toll- • Saying that “almost without claims, especially in an increasingly booth,1 one of the characters, exception” the “girls” who are niche new media environment. It also Milo, declares that he comes employed by adult entertain- may signal the thinking of the author from a faraway land called ment cabarets were sexually of the majority opinion, Justice Sonia IContext. After a circuitous journey abused as children and suffer Sotomayor, writing her first free speech through many strange cities, bearing from drug and alcohol addic- decision since joining the Court. names that have meanings Milo strug- tion is not sufficiently specific to gles to understand, he finds himself be actionable by any individual The Hoeper v. Air Wisconsin Decision back at home in his bedroom. plaintiff.6 Saying it is true of a In Hoeper, a unanimous Court held Context, by and large, is the home particular person, however, may that defamation lawsuits brought under base for courts in defining the boun- result in valid claims for public a federal security statute will only suc- daries between actionable and nonac- disclosure of private facts or def- ceed if the plaintiff can establish a tionable speech. Often, after circuitous amation—or both. materially false impact on “the rel- travels through precedent and logic, • Railing against a public figure’s evant reader or listener.”12 The Court courts meander back to the simple hypocrisy by depicting him as diverged, in a 6-3 vote, in applying the notion that the meaning and legal sig- having sex with his mother is rule to the facts of the case and on nificance of words are determined by not a foundation for a success- the ultimate outcome. Writing for the their context. Consider these examples ful emotional distress claim if a Court, Justice Sotomayor relied heavily involving various elements of defama- reasonable reader would under- on the overarching constitutional prin- tion and related torts: stand that it is a parody.7 But ciples of New York Times v. Sullivan13 in Missouri, and probably else- and Masson v. New Yorker Magazine14 • Rebutting a debate adversary with where, falsely accusing someone in divining the congressional intent the words, “Jane, you ignorant of incest used to be a crime.8 behind—and the constitutional con- slut”2 will draw nostalgic laugh- • The U.S. Supreme Court has straints on—the statute. ter from people of a certain age, told us that context matters in The majority of the Court over- but likely will not sustain a lawsuit considering damages. The stan- turned a Colorado jury’s $1.2 million because the audience will recog- dards in assessing punitive verdict in favor of a former Air Wis- nize it as hyperbole, not a factual damages in defamation cases consin pilot, William Hoeper. The allegation.3 Telling people that a will differ depending on whether airline in 2004 had called the Trans- man had sex with another man at the speech is a matter of public portation Security Administration a party and that he did so behind or private concern.9 (TSA) to report that Hoeper failed a his girlfriend’s back may draw a flight-certification test, lost his temper plaintiff with a prima facie claim.4 As these examples reflect, the with the instructor, and left for the air- • Calling a person a “thief” in a courts in defamation and similar port to catch a plane home. According one-to-one discussion with him cases have considered the context of to the Court, Air Wisconsin told involves no publication to a third the expression as a significant, if not TSA that Hoeper, who was licensed party and therefore will not give the determinative, factor. The case to carry a weapon on board, “may be rise to a cause of action. Telling law teaches us that context is critical armed[,] . . . that the airline was con- even one more person the same across the elements and defenses of cerned about his mental stability and thing may support a viable claim identification of the plaintiff, verifi- the whereabouts of his firearm,” and of defamation per se.5 ability of fact, rhetorical hyperbole, that he was an “unstable pilot” who and damages.10 “was terminated today.”15 Last term, the Supreme Court of The pilot sued the airline and sev- Charles D. Tobin, a partner with Holland the United States in Hoeper v. Air Wis- eral of its employees for defamation. & Knight LLP in Washington, D.C., is the consin,11 applied a contextual analysis Defendants asserted that Congress immediate past chair of the ABA Forum to yet another element of a defama- had provided them with immunity on Communications Law. Len Niehoff is tion case: material falsity. Although under the Aviation and Transporta- a professor at the University of Michigan the case involved immunity under a tion Security Act (ATSA).16 Under Law School and is of counsel to the law federal statute, the holding may have the ATSA, passed following 9/11, firm of Honigman Miller Schwartz and larger ramifications for constitutional Congress granted broad protection Cohn LLP in Ann Arbor, MI. interpretations of all defamation to airlines and their employees for

Published in Communications Lawyer, Volume 30, Number 3, June 2014. © 2014 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. reporting potential security threats. reputation in the community.”25 In the standard, Justice Scalia wrote that the The statute provides that the air- context of an ATSA communication, Court should have remanded the case lines will not be held liable unless the according to Justice Sotomayor—and to a jury to determine the “factbound reports are made “with actual knowl- in this portion of the opinion, the entire question” that the majority decided.34 edge that the disclosure was false, Court concurred—”we care whether a A Colorado jury, according to the inaccurate, or misleading” or “with falsehood affects the authorities’ per- dissent, could find that Hoeper had reckless disregard as to the truth or ception of and response to a given stated a valid claim of material falsity falsity of that disclosure.”17 threat.”26 Accordingly, in ATSA cases, in Air Wisconsin’s report of a “brief, Hoeper had overcome the airline’s inaccuracies in reports to security offi- run-of-the-mill, and arguably justi- appeals of his jury verdict up through cials would not be considered material fied display of anger . . . that did not the Colorado Supreme Court. That “absent a substantial likelihood that a cause anyone . . . to view him as either court, in a 4-3 decision affirming reasonable security officer would con- irrational or a potential source of vio- the jury’s $1.2 million defamation sider it important in determining a lence.”35 It was “simply implausible” verdict and affirming the denial of response to the supposed threat.”27 that “a reasonable jury would have to ATSA immunity to Air Wisconsin, Applying the announced standard, find that the report of mental insta- held that the employee’s words to the Court examined Air Wisconsin’s bility would have no effect upon the TSA were “overstated . . . to such statements to TSA. The majority course of action determined by the a degree that they were made with determined, as a matter of law,28 that TSA.”36 reckless disregard of their truth or a “reasonable security officer” would This is not the first time that Jus- falsity.”18 In what the U.S. Supreme not view the difference between the tices Sotomayor and Scalia have seen Court described as a “key footnote,” literal truth and the report “impor- the facts of a case very differently. the Colorado Supreme Court also tant in determining a response to the Their conflicting opinions in the con- said that it did not need to “decide supposed threat.”29 In this respect, the frontation clause case of Michigan v. whether the statements were true or majority noted: Bryant,37 for example, turn on arrest- false. Rather,” the Colorado court ingly different characterizations of declared, “we conclude that Air • The statement that Hoeper was a the underlying events—an unsettling Wisconsin made the statements licensed flight officer “who may tension that seems more appropri- with reckless disregard as to their be armed” was literally true.30 ate to German New Wave films than truth or falsity.”19 • The statement that Hoeper “was to Supreme Court opinions. In this The U.S. Supreme Court found terminated today” was not mate- sense, Hoeper, like Bryant, pushes that the exception to ATSA immu- rially different than the literal our attention away from the facts and nity is “patterned . . . after” the actual truth—the airline had made plans how we should characterize them, malice standard of Sullivan.20 The to fire him but had not yet done which may seem a bit murky, and Court recognized that it has “long so—because “[n]o reasonable TSA toward the law. Unlike the confron- held that actual malice requires mate- officer would care” if he “had just tation clause jurisprudence, however, rial falsity.” 21 The Colorado Supreme been fired or merely knew he was the legal principles that emerge from Court’s footnote, however, showed about to meet that fate.”31 Hoeper seem uncommonly clear and that it erroneously “labored under the • The statement that Hoeper was potentially very significant. assumption that even true statements “unstable” or that Air Wisconsin do not qualify for ATSA immunity if was “concerned about his men- Why the Hoeper Decision Matters they are made recklessly.”22 Presuming tal stability” was not materially A skeptic might dismiss Hoeper as a that “Congress meant to incorporate different than, for example, a narrowly focused interpretation of a the settled meaning of actual mal- statement that “in a professional relatively obscure statute involving ice” into the statute, the U.S. Supreme setting” Hoeper “blew up” at the the unique sensitivities of air traffic Court held that “a statement otherwise instructor.32 security. It is, of course, possible that eligible for ATSA immunity may not • The statement about Hoeper’s the Court will later confine its holding be denied immunity unless the state- “mental stability” also, accord- in this way. But unless and until the ment is materially false.” 23 ing to the Court, “accurately Court does so, four good arguments To analyze material falsity, the conveyed ‘the gist’ of the situa- should convince us that the opinion is Court turned to its decision in Masson tion.” Air Wisconsin employees much more important. and its core holding that a “statement “did harbor concerns about First, in Hoeper the Court was inter- is not considered false unless it ‘would Hoeper’s mental state: They preting Sullivan and its progeny every have a different effect on the mind of knew he had just ‘blown up,’ bit as much as it was interpreting the the reader from that which the pleaded and they worried about what ATSA. After all, a unanimous Court truth would have produced.’”24 Not- he might do next.”33 recognized that the statute incorpo- ing that the “identity of the relevant rated the Sullivan standard and turned reader or listener varies according to Justice Antonin Scalia partially its attention to that body of case law in the context,” the Court observed that dissented in an opinion joined by its effort to explicate ATSA immunity. in “determining whether a falsehood Justices Clarence Thomas and It therefore will not do to dismiss the is material to a defamation claim, we Elena Kagan. Although the dissenters Court’s discussion of Sullivan and Mas- care whether it affects the subject’s agreed with the majority on the legal son as dicta or a detour. The Court’s

Published in Communications Lawyer, Volume 30, Number 3, June 2014. © 2014 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. analysis of those cases was essential to compelled to retreat—comes to mind. 562 U.S. ___ (2011). the business at hand. Finally, Hoeper gives us a little 10. It seems that the word context Second, the Supreme Court’s ana- insight into the First Amendment itself can have many meanings in the law. lytic move here is noteworthy. As jurisprudence of Justice Sotomayor. For example, in the influential en banc observed above, for years courts have We obviously should not read too U.S. Court of Appeals for the D.C. Cir- applied contextual analyses to defama- much into a single opinion. But a cuit decision Ollman v. Evans, 750 F.2d tion and similar cases. But the Court decision that honors Sullivan, applies 970, 975 (D.C. Cir. 1984), the court had not previously articulated a con- it thoughtfully, and extends its reach devised a multipart test for deciding textual analysis of material falsity incrementally is no small develop- actionable statements of fact from non- that so clearly focuses on the specific ment. Freedom of expression survives verifiable statements of opinion, calling “community” to which the audi- only through the restless vigilance of for evaluation of “the full context of the ence belongs.38 In Hoeper, the Court the Court, and it needs all the friends statement—the entire article or column,” shifted the inquiry from the reaction it can get. Granted, it seems unlikely as well as “the broader context or setting of the reasonable person to the reac- that anyone will say of Hoeper, as in which the statement appears.” tion of the reasonable TSA security Alexander Meiklejohn famously 11. 134 S. Ct. 852 (2014). officer—an adjustment in orientation said of Sullivan, that it is “an occa- 12. Id. at 863. All nine justices joined in that arguably makes all the differ- sion for dancing in the streets.”41 But Parts I, II, and III-A of the Court’s deci- ence in the outcome of the case. After there may be cause for at least a mild sion. A partial dissent by Justice Antonin all, in another context, the difference celebration in the fact that Justice Scalia, joined by Justices Clarence between having been fired and hav- Sotomayor found—in the idiosyn- Thomas and Elena Kagan, is limited to ing been told you will be fired could be cratic circumstances of Hoeper, of all Part III-B—the application of the mate- decisive. But the Court declared that, places—an occasion to honor Sulli- rial falsity standard to the record. for purposes of the reasonable TSA van on its fiftieth birthday. Perhaps we 13. 376 U.S. 254 (1964). security officer attempting to assess can get a small insight into her First 14. 501 U.S. 496 (1991). risk, it would not matter at all. Amendment views by paying a little 15. Hoeper, 134 S. Ct. at 859. This seems particularly important attention to, well, context. 16. 49 U.S.C. § 44901 et seq. because of the emergence of so many 17. Id. § 44941(b). new media that are directed to niche Endnotes 18. Hoeper, 134 S. Ct. at 860 (quoting audiences. Hoeper suggests that, in such 1. Norton Juster, The Phantom 2012 WL 907764, at *7 (Mar. 19, 2012)). cases, courts should not measure fal- Tollbooth (Epstein & Carroll Associates, 19. Id. (quoting 2012 WL 907764, at sity by reference to what all reasonable Inc. 1961). *16 (Mar. 19, 2012)). people would think but, rather, by ref- 2. The phrase was famously directed 20. Id. at 861. erence to what reasonable members of toward Jane Curtin by Dan Aykroyd 21. Id. the niche target audience would think.39 in their Saturday Night Live parody of 22. Id. at 860. Hoeper reiterated that If the falsity would make no difference the James Kilpatrick / Shana Alexander the Court has “long held, to the contrary, to the relevant audience, then the state- debates on 60 Minutes. that actual malice entails falsity. See, e.g., ment is not materially untrue in any 3. “While the term ‘whore’ may impute Philadelphia Newspapers, Inc. v. Hepps, relevant sense. It should be noted that a want of chastity and thereby constitute 475 U.S. 767, 775 . . . (1986) (‘[A]s one this will often afford additional protec- defamation in certain contexts, in other might expect given the language of the tion to the speaker—but not always. An contexts the term may be nothing more Court in New York Times, a public-fig- understanding of the niche target audi- than ‘the kind of rhetorical hyperbole, ure plaintiff must show the falsity of the ence can just as easily establish material epithets and figurative statements that statements at issue in order to prevail in falsity as rebut it.40 are nonactionable.’” Rangel v. Am. Med. a suit for defamation’ (citation omitted)); A third important dimension of Response W., 2013 WL 1785907, at *23 Garrison v. Louisiana, 379 U.S. 64, 74 . Hoeper is its relationship to existing (E.D. Cal. Apr. 25, 2013). . . (1964) (‘We held in New York Times case law. For the reasons discussed, 4. Stern v. Cosby, 645 F. Supp. 2d 258 that a public official might be allowed the Hoeper adds some additional depth to (S.D.N.Y. 2009). civil remedy only if he establishes that our understanding of material falsity 5. Ball v. White, 3 Mich. App. 579 the utterance was false’).” Id. at 861. But and actual malice, but it is certainly a (1966). hinging a decision regarding actual malice more evolutionary than revolutionary 6. Steele v. Ritz, No. W2008-02125- on the truth or falsity of the statement— development. The incremental nature COA-R3-CV (Tenn. Ct. App. Oct. 27, rather than on the defendant’s attitude of the change it works may lend it 2009). toward the truth or falsity—seems odd, additional precedential force and may 7. Hustler Mag., Inc. v. Falwell, 485 especially under the ATSA, where actual prevent the sort of retrenchment that U.S. 46 (1988). malice is a defense. In a public figure’s we sometimes see when the Court 8. State v. Bartley, 263 S.W. 95 (Mo. common law libel case, falsity and fault effects a broader and more dramatic 1924). are part of the plaintiff’s burden. Who has shift in approach. In this respect, 9. See Dun & Bradstreet v. Greenmoss the burden to establish truth/falsity here? the confrontation clause jurispru- Builders, Inc., 472 U.S. 749 (1985). The This gloss on the parties’ burdens is curi- dence referenced above—where the Court more recently reemphasized the ous for another reason: if a statement is Court made a wholesale change in the contextual distinction of public concern / not materially false, why would the Court law from which it subsequently felt private concern speech in Snyder v. Phelps, need to reach the issue of fault at all?