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.