Air Wisconsin Airlines Corp. v. Hoeper

(Slip Opinion) OCTOBER TERM, 2013 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

AIR WISCONSIN AIRLINES CORP. v. HOEPER

CERTIORARI TO THE SUPREME COURT OF COLORADO

No. 12–315. Argued December 9, 2013—Decided January 27, 2014
Respondent Hoeper was a pilot for petitioner Air Wisconsin Airlines
Corp. When Air Wisconsin stopped flying from Hoeper’s home base
on aircraft that he was certified to fly, he needed to become certified
on a different type of aircraft to keep his job. After Hoeper failed in
his first three attempts to gain certification, Air Wisconsin agreed to
give him a fourth and final chance. But he performed poorly during a
required training session in a simulator. Hoeper responded angrily
to this failure—raising his voice, tossing his headset, using profanity,
and accusing the instructor of “railroading the situation.”
The instructor called an Air Wisconsin manager, who booked
Hoeper on a flight from the test location to Hoeper’s home in Denver.
Several hours later, the manager discussed Hoeper’s behavior with
other airline officials. The officials discussed Hoeper’s outburst, his
impending termination, the history of assaults by disgruntled airline
employees, and the chance that—because Hoeper was a Federal
Flight Deck Officer (FFDO), permitted “to carry a firearm while en-
gaged in providing air transportation,” 49 U. S. C. §44921(f)(1)—he
might be armed. At the end of the meeting, an airline executive
made the decision to notify the Transportation Security Administra-
tion (TSA) of the situation. The manager who had received the initial
report from Hoeper’s instructor made the call to the TSA. During
that call, according to the jury, he made two statements: first, that
Hoeper “was an FFDO who may be armed” and that the airline was
“concerned about his mental stability and the whereabouts of his
firearm”; and second, that an “[u]nstable pilot in [the] FFDO program
was terminated today.” In response, the TSA removed Hoeper from
his plane, searched him, and questioned him about the location of his
gun. Hoeper eventually boarded a later flight to Denver, and Air
Wisconsin fired him the next day.
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Syllabus

Hoeper sued for defamation in Colorado state court. Air Wisconsin
moved for summary judgment and later for a directed verdict, relying
on the Aviation and Transportation Security Act (ATSA), which
grants airlines and their employees immunity against civil liability
for reporting suspicious behavior, 49 U. S. C. §44941(a), except where
such disclosure is “made with actual knowledge that the disclosure
was false, inaccurate, or misleading” or “made with reckless disre-
gard as to the truth or falsity of that disclosure,” §44941(b). The trial
court denied the motions and submitted the ATSA immunity ques-
tion to the jury. The jury found for Hoeper on the defamation claim.
The State Supreme Court affirmed. It held that the trial court erred
in submitting the immunity question to the jury but that the error
was harmless. Laboring under the assumption that even true state-
ments do not qualify for ATSA immunity if they are made recklessly,
the court held that Air Wisconsin was not entitled to immunity be-
cause its statements to the TSA were made with reckless disregard of
their truth or falsity.
Held:
1. ATSA immunity may not be denied to materially true state-
ments. Pp. 7–11.
(a) The ATSA immunity exception is patterned after the actual
malice standard of New York Times Co. v. Sullivan, 376 U. S. 254,
which requires material falsity. See, e.g., Masson v. New Yorker
Magazine, Inc., 501 U. S. 496, 517. Because the material falsity re-
quirement was settled when the ATSA was enacted, Congress pre-
sumably meant to incorporate it into the ATSA’s immunity exception
and did not mean to deny ATSA immunity to true statements made
recklessly. This presumption is not rebutted by other indicia of stat-
utory meaning. Section 44941(b)(1) requires falsity, and §44941(b)(2)
simply extends the immunity exception from knowing falsehoods to
reckless ones. Denying immunity for substantially true reports, on
the theory that the person making the report had not yet gathered
enough information to be certain of its truth, would defeat the pur-
pose of ATSA immunity: to ensure that air carriers and their employ-
ees do not hesitate to provide the TSA with needed information.
Pp. 7–10.
(b) Hoeper’s arguments that the State Supreme Court’s judgment
should be affirmed notwithstanding its misapprehension of ATSA’s
immunity standard are unpersuasive. Hoeper claims that Air Wis-
consin did not argue the truth of its statements in asserting immuni-
ty, but Air Wisconsin contended in the state court that ATSA’s im-
munity exception incorporates the New York Times actual malice
standard, which requires material falsity. And the State Supreme
Court did not perform the requisite analysis of material falsity in
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Syllabus

finding the record sufficient to support the defamation verdict. A
court’s deferential review of jury findings cannot substitute for its
own analysis of the record; the jury was instructed only to determine
falsity, not materiality; and applying the material falsity standard to
a defamation claim is quite different from applying it to ATSA im-
munity. Pp. 10–11.
2. Under the correct material falsity analysis, Air Wisconsin is en-
titled to immunity as a matter of law. Pp. 12–18.
(a) In the defamation context, a materially false statement is one
that “ ‘would have a different effect on the mind of the reader [or lis-
tener] from that which the . . . truth would have produced.’ ” Masson,
501 U. S., at 517. This standard suffices in the ATSA context as well,
so long as the hypothetical reader or listener is a security officer. For
purposes of ATSA immunity, a falsehood cannot be material absent a
substantial likelihood that a reasonable security officer would consid-
er it important in determining a response to the supposed threat.
Pp. 12–13.
(b) Viewing the evidence in the light most favorable to Hoeper,
the Court concludes as a matter of law that any falsehoods in Air
Wisconsin’s statement to the TSA were not material. First, the Court
rejects Hoeper’s argument that Air Wisconsin should have qualified
its statement that Hoeper “was an FFDO who may be armed” by not-
ing that it had no reason to think he actually was armed. To the ex-
tent that Air Wisconsin’s statement could have been confusing, any
such confusion is immaterial, as a reasonable TSA officer—having
been told that Hoeper was an FFDO who was upset about losing his
job—would have wanted to investigate whether he was armed. To
demand more precise wording would vitiate the purpose of ATSA
immunity: to encourage air carriers and their employees, often in
fast-moving situations and with little time to fine-tune their diction,
to provide the TSA immediately with information about potential
threats. Second, Air Wisconsin’s statement that Hoeper “was termi-
nated today” was not materially false. While Hoeper had not actually
been fired at the time of the statement, everyone involved knew that
his firing was imminent. No reasonable TSA officer would care
whether an angry, potentially armed airline employee had just been
fired or merely knew he was about to meet that fate. Finally, alt-
hough the details of Hoeper’s behavior during the simulator session
may be disputed, it would have been correct even under Hoeper’s ver-
sion of the facts for Air Wisconsin to report that Hoeper “blew up”
during the test. From a reasonable security officer’s perspective,
there is no material difference between a statement that Hoeper had
“blown up” in a professional setting and a statement that he was un-
stable. Air Wisconsin’s related statement that it was “concerned
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Syllabus

about [Hoeper’s] mental stability” is no more troubling. Many of the
officials who attended the meeting at airline headquarters might not
have framed their concerns in terms of “mental stability,” but it
would be inconsistent with the ATSA’s text and purpose to expose Air
Wisconsin to liability because the manager who placed the call to the
TSA could have chosen a slightly better phrase to articulate the air-
line’s concern. A statement that would otherwise qualify for ATSA
immunity cannot lose that immunity because of some minor impreci-
sion, so long as “the gist” of the statement is accurate, Masson, 501
U. S., at 517. Pp. 13–18.
Reversed and remanded.

SOTOMAYOR, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and KENNEDY, GINSBURG, BREYER, and ALITO, JJ., joined, and in
which SCALIA, THOMAS, and KAGAN, JJ., joined as to Parts I, II, and III–
A. SCALIA, J., filed an opinion concurring in part and dissenting in part,
in which THOMAS and KAGAN, JJ., joined.
 Cite as: 571 U. S. ____ (2014) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES
_________________

No. 12–315
_________________

AIR WISCONSIN AIRLINES CORPORATION,

PETITIONER v. WILLIAM L. HOEPER

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF

COLORADO

[January 27, 2014]

JUSTICE SOTOMAYOR delivered the opinion of the Court.
In 2001, Congress created the Transportation Security
Administration (TSA) to assess and manage threats against
air travel. Aviation and Transportation Security Act
(ATSA), 49 U. S. C. §44901 et seq. To ensure that the
TSA would be informed of potential threats, Congress gave
airlines and their employees immunity against civil liabil-
ity for reporting suspicious behavior. §44941(a). But this
immunity does not attach to “any disclosure made with
actual knowledge that the disclosure was false, inaccurate,
or misleading” or “any disclosure made with reckless
disregard as to the truth or falsity of that disclosure.”
§44941(b).
The question before us is whether ATSA immunity may
be denied under §44941(b) without a determination that a
disclosure was materially false. We hold that it may not.
Because the state courts made no such determination, and
because any falsehood in the disclosure here would not
have affected a reasonable security officer’s assessment of
the supposed threat, we reverse the judgment of the Colo-
rado Supreme Court.
2 AIR WISCONSIN AIRLINES CORP. v. HOEPER

Opinion of the Court

I

A

William Hoeper joined Air Wisconsin Airlines Corpora-
tion as a pilot in 1998. But by late 2004, Air Wisconsin
had stopped operating flights from Denver, Hoeper’s home
base, on any type of aircraft for which he was certified. To
continue flying for Air Wisconsin out of Denver, Hoeper
needed to gain certification on the British Aerospace 146
(BAe-146), an aircraft he had not flown.
Hoeper failed in his first three attempts to pass a profi-
ciency test. After the third failure, as he later acknowl-
edged at trial, his employment was “at [Air Wisconsin’s]
discretion.” App. 193. But he and Air Wisconsin entered
into an agreement to afford him “one more opportunity to
pass [the] proficiency check.” Id., at 426. The agreement
left little doubt that Hoeper would lose his job if he failed
again.
In December 2004, Hoeper flew from Denver to Virginia
for simulator training as part of this final test. During the
training, Hoeper failed to cope with a challenging scenario
created by the instructor, Mark Schuerman, and the simu-
lator showed the engines “flam[ing] out” due to a loss of
fuel. App. 203. As Schuerman began to tell Hoeper that
he “should know better,” ibid., Hoeper responded angrily.
He later described what happened:
“At this point, that’s it. I take my headset off and I
toss it up on the glare shield. . . . [Schuerman] and I
exchanged words at the same elevated decibel level.
Mine went something like this: This is a bunch of shit.
I’m sorry. You are railroading the situation and it’s
not realistic.” Id., at 203–204.
When Hoeper announced that he wanted to call the legal
department of the pilots’ union, Schuerman ended the
session so that Hoeper could do so. Schuerman then re-
ported Hoeper’s behavior to Patrick Doyle, the Wisconsin-
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Opinion of the Court

based manager of the BAe-146 fleet. Doyle booked Hoeper
on a United Airlines flight back to Denver.
Several hours after Schuerman’s report, Doyle discussed
the situation at Air Wisconsin’s headquarters with the
airline’s Vice President of Operations, Kevin LaWare; its
Managing Director of Flight Operations, Scott Orozco; and
its Assistant Chief Pilot, Robert Frisch. LaWare later ex-
plained the accretion of his concerns about what Hoeper
might do next. He regarded Hoeper’s behavior in the
simulator as “a fairly significant outburst,” of a sort that
he “hadn’t seen . . . before.” Id., at 276. And he knew “it
was a given that . . . Hoeper’s employment was . . . going
to be terminated” as a result of his failure to complete the
simulator training. Id., at 278.
Then, LaWare testified, Orozco mentioned that Hoeper
was a Federal Flight Deck Officer (FFDO). The FFDO
program allows the Government to “deputize volunteer
pilots of air carriers . . . to defend the flight decks of air-
craft . . . against acts of criminal violence or air piracy.”
§44921(a). FFDOs are permitted “to carry a firearm while
engaged in providing air transportation.” §44921(f )(1).
Hoeper had become an FFDO earlier in 2004 and had been
issued a firearm. He was not allowed to carry the firearm
during his trip to the training facility, because he was not
“engaged in providing air transportation,” ibid. But ac-
cording to one official at the meeting, the Denver airport’s
security procedures made it possible for crew members to
bypass screening, so that Hoeper could have carried his
gun despite the rule. Indeed, Frisch later testified that he
was “aware of one” incident in which an Air Wisconsin
pilot had come to training with his FFDO weapon. App.
292. On the basis of this information, LaWare concluded,
there was “no way . . . to confirm” whether “Hoeper had
his weapon with him, even though . . . by policy, [he was]
not supposed to have it with him.” Id., at 279.
Finally, LaWare testified, he and the other Air Wiscon-
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Opinion of the Court

sin officials discussed two prior episodes in which disgrun-
tled airline employees had lashed out violently. Id., at
280. In one incident, a FedEx flight engineer under inves-
tigation for misconduct “entered the cockpit” of a FedEx
flight “and began attacking the crew with a hammer”
before being subdued. United States v. Calloway, 116
F. 3d 1129, 1131 (CA6 1997). In another, a recently fired
ticket agent brought a gun onto a Pacific Southwest Air-
lines flight and shot his former supervisor and the crew,
leading to a fatal crash. Malnic, Report Confirms That
Gunman Caused 1987 Crash of PSA Jet, L. A. Times,
Jan. 6, 1989, p. 29.
In light of all this—Hoeper’s anger, his impending ter-
mination, the chance that he might be armed, and the
history of assaults by disgruntled airline employees—
LaWare decided that the airline “need[ed] to make a call
to the TSA,” to let the authorities know “the status” of the
situation. App. 282.
Doyle offered to make the call. According to the jury, he
made two statements to the TSA: first, that Hoeper “was
an FFDO who may be armed” and that the airline was
“concerned about his mental stability and the whereabouts
of his firearm”; and second, that an “[u]nstable pilot in
[the] FFDO program was terminated today.” App. to Pet.
for Cert. 111a. (The latter statement appears in the rec-
ord as the subject line of an internal TSA e-mail, summa-
rizing the call from Doyle. App. 414.)
The TSA responded to the call by ordering that Hoeper’s
plane return to the gate. Officers boarded the plane, re-
moved Hoeper, searched him, and questioned him about
the location of his gun. When Hoeper stated that the gun
was at his home in Denver, a Denver-based federal agent
went there to retrieve it.
Later that day, Hoeper boarded a return flight to Den-
ver. Air Wisconsin fired him the following day.
 Cite as: 571 U. S. ____ (2014) 5

Opinion of the Court

B

Hoeper sued Air Wisconsin in Colorado state court on
several claims, including defamation.1 Air Wisconsin
moved for summary judgment on the basis of ATSA im-
munity,2 but the trial court denied it, ruling that the jury
was entitled to find the facts pertinent to immunity. The
case went to trial, and the court denied Air Wisconsin’s
motion for a directed verdict on the same basis. It submit-
ted the question of ATSA immunity to the jury, with the
instruction—following the language of §44941(b)—that
immunity would not apply if Hoeper had proved that
Air Wisconsin “made the disclosure [to the TSA] with ac-
tual knowledge that the disclosure was false, inaccurate, or
misleading” or “with reckless disregard as to its truth or
falsity.” App. 582. The jury instructions did not state that
ATSA immunity protects materially true statements.
The jury found for Hoeper on the defamation claim and
awarded him $849,625 in compensatory damages and
$391,875 in punitive damages. The court reduced the
latter award to $350,000, for a total judgment of just
under $1.2 million, plus costs.
The Colorado Court of Appeals affirmed. 232 P. 3d 230
(2009). It held “that the trial court properly submitted the
ATSA immunity issue to the jury,” that “the record sup-
——————
1 Air Wisconsin agrees that it bears responsibility for Doyle’s state-

ments. 2012 WL 907764, *2, *16, n. 2 (Colo., Mar. 19, 2012).
2 The ATSA immunity provision specifies that “[a]ny air carrier . . . or

any employee of an air carrier . . . who makes a voluntary disclosure
of any suspicious transaction relevant to a possible violation of law or
regulation, relating to air piracy, a threat to aircraft or passenger
safety, or terrorism, . . . to any employee or agent of the Department of
Transportation, the Department of Justice, any Federal, State, or local
law enforcement officer, or any airport or airline security officer shall
not be civilly liable to any person under any law or regulation of the
United States, any constitution, law, or regulation of any State or
political subdivision of any State, for such disclosure.” 49 U. S. C.
§44941(a).
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Opinion of the Court

ports the jury’s rejection of immunity,” and that the evi-
dence was sufficient to support the jury’s defamation
verdict. Id., at 233.
The Colorado Supreme Court affirmed. 2012 WL
907764 (Mar. 19, 2012). It began by holding, contrary to
the lower courts, “that immunity under the ATSA is a
question of law to be determined by the trial court before
trial.” Id., at *4. But it concluded that the trial court’s
error in submitting immunity to the jury was “harmless
because Air Wisconsin is not entitled to immunity.” Id., at
*6. In a key footnote, the court stated: “In our determina-
tion of immunity under the ATSA, we need not, and there-
fore do not, decide whether the statements were true or
false. Rather, we conclude that Air Wisconsin made the
statements with reckless disregard as to their truth or
falsity.” Id., at *16, n. 6. The court thus appears to
have labored under the assumption that even true state-
ments do not qualify for ATSA immunity if they are made
recklessly.
Applying this standard, and giving “no weight to the
jury’s finding[s],” ibid., n. 5, the court held that “[a]l-
though the events at the training may have warranted
a report to TSA,” Air Wisconsin’s statements “overstated
those events to such a degree that they were made with
reckless disregard of their truth or falsity.” Id., at *7. The
court opined that Air Wisconsin “would likely be immune
under the ATSA if Doyle had reported that Hoeper was an
Air Wisconsin employee, that he knew he would be termi-
nated soon, that he had acted irrationally at the training
three hours earlier and ‘blew up’ at test administrators,
and that he was an FFDO pilot.” Id., at *8. But because
Doyle actually told TSA “(1) that he believed Hoeper to be
mentally unstable; (2) that Hoeper had been terminated
earlier that day; and (3) that Hoeper may have been
armed,” id., at *7, the court determined that his state-
ments “went well beyond” the facts and did not qualify for
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Opinion of the Court

immunity, id., at *8. The court went on to conclude that
the evidence was sufficient to support the jury’s defama-
tion verdict.
Justice Eid, joined by two others, dissented in part. She
agreed with the majority’s holding that immunity is an
issue for the court, not the jury. But she reasoned that Air
Wisconsin was entitled to immunity “because [its] state-
ments to the TSA were substantially true.” Id., at *11.
We granted certiorari to decide “[w]hether ATSA im-
munity may be denied without a determination that the
air carrier’s disclosure was materially false.” 570 U. S. ___
(2013).
II

A

Congress patterned the exception to ATSA immunity
after the actual malice standard of New York Times Co. v.
Sullivan, 376 U. S. 254 (1964), and we have long held that
actual malice requires material falsity. Because we pre-
sume that Congress meant to incorporate the settled
meaning of actual malice when it incorporated the lan-
guage of that standard, we hold that a statement other-
wise eligible for ATSA immunity may not be denied
immunity unless the statement is materially false.
In New York Times, we held that under the First
Amendment, a public official cannot recover “for a defama-
tory falsehood relating to his official conduct unless he
proves that the statement was made with ‘actual malice’—
that is, with knowledge that it was false or with reckless
disregard of whether it was false or not.” Id., at 279–
280. Congress borrowed this exact language in denying
ATSA immunity to “(1) any disclosure made with actual
knowledge that the disclosure was false, inaccurate, or
misleading; or (2) any disclosure made with reckless
disregard as to the truth or falsity of that disclosure.”
§44941(b).
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Opinion of the Court

One could in principle construe the language of the
actual malice standard to cover true statements made
recklessly. But we have long held, to the contrary, that
actual malice entails falsity. See, e.g., Philadelphia News-
papers, Inc. v. Hepps, 475 U. S. 767, 775 (1986) (“[A]s one
might expect given the language of the Court in New York
Times, a public-figure plaintiff must show the falsity of the
statements at issue in order to prevail in a suit for defa-
mation” (citation omitted)); Garrison v. Louisiana, 379
U. S. 64, 74 (1964) (“We held in New York Times that a
public official might be allowed the civil remedy only if he
establishes that the utterance was false”).
Indeed, we have required more than mere falsity to
establish actual malice: The falsity must be “material.”
Masson v. New Yorker Magazine, Inc., 501 U. S. 496, 517
(1991). As we explained in Masson, “[m]inor inaccuracies
do not amount to falsity so long as ‘the substance, the gist,
the sting, of the libelous charge be justified.’ ” Ibid. A
“statement is not considered false unless it ‘would have a
different effect on the mind of the reader from that which
the pleaded truth would have produced.’ ” Ibid. (quoting
R. Sack, Libel, Slander, and Related Problems 138 (1980)).
These holdings were settled when Congress enacted the
ATSA, and we therefore presume that Congress meant to
adopt the material falsity requirement when it incorpo-
rated the actual malice standard into the ATSA immunity
exception. “[I]t is a cardinal rule of statutory construction
that, when Congress employs a term of art, it presumably
knows and adopts the cluster of ideas that were attached
to each borrowed word in the body of learning from which
it is taken.” FAA v. Cooper, 566 U. S. ___, ___ (2012) (slip
op., at 6) (internal quotation marks omitted). The actual
malice standard does not cover materially true statements
made recklessly, so we presume that Congress did not
mean to deny ATSA immunity to such statements.
Other indicia of statutory meaning could rebut this
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Opinion of the Court

presumption, but here, they do not. First, the ATSA’s
text favors a falsity requirement. The first subsection of
§44941(b) requires falsity, as a true disclosure cannot have
been made “with actual knowledge” that it “was false.”
The only question is whether the second subsection—
which denies immunity to “any disclosure made with
reckless disregard as to [its] truth or falsity”—similarly
requires falsity. We conclude that it does. The second
subsection simply extends the immunity exception from
knowing falsehoods to reckless ones, ensuring that an air
carrier cannot avoid liability for a baseless report by stick-
ing its head in the sand to avoid “actual knowledge” that
its statements are false. “[T]he defense of truth . . . , even
if not explicitly recognized, . . .is implicit in . . . a standard
of recovery that rests on knowing or reckless disregard of
the truth.” Cox Broadcasting Corp. v. Cohn, 420 U. S. 469,
498–499 (1975) (Powell, J., concurring).
A material falsity requirement also serves the purpose
of ATSA immunity. The ATSA shifted from airlines to the
TSA the responsibility “for assessing and investigating
possible threats to airline security.” 2012 WL 907764, *14
(Eid, J., concurring in part and dissenting in part). In
directing the TSA to “receive, assess, and distribute intel-
ligence information related to transportation security,” 49
U. S. C. §114(f)(1), Congress wanted to ensure that air
carriers and their employees would not hesitate to provide
the TSA with the information it needed. This is the pur-
pose of the immunity provision, evident both from its
context and from the title of the statutory section that
contained it: “encouraging airline employees to report sus-
picious activities.” ATSA §125, 115 Stat. 631 (capitali-
zation and boldface type omitted). It would defeat this
purpose to deny immunity for substantially true reports,
on the theory that the person making the report had not
yet gathered enough information to be certain of its truth.
Such a rule would restore the pre-ATSA state of affairs, in
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Opinion of the Court

which air carriers bore the responsibility to investigate
and verify potential threats.
We therefore hold that ATSA immunity may not be
denied under §44941(b) to materially true statements.
This interpretation of the statute is clear enough that
Hoeper effectively concedes it. See Brief for Respondent
30 (acknowledging that if the Colorado Supreme Court
actually said “ ‘an airline may be denied ATSA immunity
. . . for reporting true information,’ ” then “the court was
likely wrong”). Hoeper does point out in a footnote that
given Congress’ desire to deny immunity to “ ‘bad actors,’ ”
and “given that the vast majority of reckless statements
will not turn out to be true[,] . . . Congress could have
quite reasonably chosen to deny the special privilege of
ATSA immunity to all reckless speakers,” even those
whose statements turned out to be true. Id., at 30, n. 12.
But although Congress could have made this choice, noth-
ing about the statute’s text or purpose suggests that it
actually did. Instead, Congress chose to model the excep-
tion to ATSA immunity after a standard we have long
construed to require material falsity.
B
We are not persuaded by Hoeper’s arguments that
we should affirm the judgment of the Colorado Supreme
Court notwithstanding its misapprehension of the ATSA
immunity standard.
Hoeper first argues that Air Wisconsin forfeited the
claim that it is entitled to immunity because its state-
ments were materially true. His premise is that Air
Wisconsin argued the truth of its statements only in chal-
lenging the evidentiary basis for the defamation verdict, not
in asserting immunity. But Air Wisconsin’s brief before
the Colorado Supreme Court argued that the exception to
ATSA immunity “appears to incorporate the New York
Times actual malice standard,” which—as we have ex-
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Opinion of the Court

plained—requires material falsity. Petitioner’s Opening
Brief in No. 09SC1050, p. 24.
Hoeper next argues that the Colorado Supreme Court
performed the requisite analysis of material falsity, albeit
in the context of finding the record sufficient to support
the jury’s defamation verdict. For several reasons, however,
this analysis does not suffice for us to affirm the denial
of ATSA immunity. First, to the extent that the immunity
determination belongs to the court—as the Colorado Su-
preme Court held—a court’s deferential review of jury
findings cannot substitute for its own analysis of the
record. Second, the jury here did not find that any falsity
in Air Wisconsin’s statements was material, because the
trial court instructed it only to determine whether “[o]ne
or more of th[e] statements was false,” App. 580, without
addressing materiality. Third, applying the material
falsity standard to a defamation claim is quite different
from applying it to ATSA immunity. In both contexts,
a materially false statement is one that “ ‘would have a
different effect on the mind of the reader [or listener] from
that which the . . . truth would have produced.’ ” Masson,
501 U. S., at 517. But the identity of the relevant reader
or listener varies according to the context. In determining
whether a falsehood is material to a defamation claim, we
care whether it affects the subject’s reputation in the
community. In the context of determining ATSA immu-
nity, by contrast, we care whether a falsehood affects the
authorities’ perception of and response to a given threat.3
——————
3 These are very different inquiries. Suppose the TSA receives the
following tip: “My adulterous husband is carrying a gun onto a flight.”
Whether the husband is adulterous will presumably have no effect on
the TSA’s assessment of any security risk that he poses. So if the word
“adulterous” is false, the caller may still be entitled to ATSA immunity.
But any falsity as to that word obviously would affect the husband’s
reputation in the community, so it would be material in the context of a
defamation claim.
12 AIR WISCONSIN AIRLINES CORP. v. HOEPER

Opinion of the Court

III
Finally, the Colorado Supreme Court’s analysis of mate-
rial falsity was erroneous. We turn next to explaining
why, by applying the ATSA immunity standard to the
facts of this case.4
A
We begin by addressing how to determine the material-
ity of a false statement in the ATSA context. As we noted
earlier, a materially false statement is generally one that
“ ‘would have a different effect on the mind of the reader
[or listener] from that which the . . . truth would have
produced.’ ” Ibid. The parties quibble over whether ATSA
immunity requires some special version of this standard,
but they more or less agree—as do we—that the usual
standard suffices as long as the hypothetical reader or
listener is a security officer.
A further question is what it means for a statement to
produce “ ‘a different effect on the mind of ’ ” a security
officer from that which the truth would have produced. In
defamation law, the reputational harm caused by a false
statement is its effect on a reader’s or listener’s mind. But
contrary to the position of Hoeper’s counsel at oral argu-
ment, Tr. of Oral Arg. 32–33, courts cannot decide whether
a false statement produced “ ‘a different effect on the mind
of ’ ” a hypothetical TSA officer without considering the
effect of that statement on TSA’s behavior. After all, the

——————
4 We “recognize the prudence . . . of allowing the lower courts ‘to un-

dertake [a fact-intensive inquiry] in the first instance.’ ” Holland v.
Florida, 560 U. S. 631, 654 (2010). Here, however, we conclude that
another prudential consideration—the need for clear guidance on a
novel but important question of federal law—weighs in favor of our
applying the ATSA immunity standard. Cf. Bose Corp. v. Consumers
Union of United States, Inc., 466 U. S. 485, 503 (1984) (“[T]his Court’s
role in marking out the limits of [a First Amendment] standard through
the process of case-by-case adjudication is of special importance”).
 Cite as: 571 U. S. ____ (2014) 13

Opinion of the Court

whole reason the TSA considers threat reports is to deter-
mine and execute a response.
A plaintiff seeking to defeat ATSA immunity need not
show “precisely what a particular official or federal agency
would have done in a counterfactual scenario.” Brief for
United States as Amicus Curiae 27. Such a showing
would be “impossible . . . given the need to maintain se-
crecy regarding airline security operations.” Brief for Re-
spondent 42. But any falsehood cannot be material, for
purposes of ATSA immunity, absent a substantial likeli-
hood that a reasonable security officer would consider it
important in determining a response to the supposed
threat. Cf. TSC Industries, Inc. v. Northway, Inc., 426
U. S. 438, 449 (1976) (an omission in a proxy solicitation
“is material if there is a substantial likelihood that a
reasonable shareholder would consider it important in
deciding how to vote”). This standard “is an objective
one, involving the [hypothetical] significance of an omitted
or misrepresented fact to a reasonable” security official,
rather than the actual significance of that fact to a partic-
ular security official. Id., at 445.
B
We apply the material falsity standard to the facts of
this case. In doing so, we neither embrace nor reject the
Colorado Supreme Court’s unanimous holding “that im-
munity under the ATSA is a question of law to be deter-
mined by the trial court before trial.” 2012 WL 9097764,
*4; see id., at *11 (Eid, J., concurring in part and dissent-
ing in part) (agreeing with majority). Rather, we conclude
that even if a jury were to find the historical facts in the
manner most favorable to Hoeper, Air Wisconsin is enti-
tled to ATSA immunity as a matter of law.
We begin with Air Wisconsin’s statement that Hoeper
“was an FFDO who may be armed.” App. to Pet. for Cert.
111a. Hoeper cannot dispute the literal truth of this
14 AIR WISCONSIN AIRLINES CORP. v. HOEPER

Opinion of the Court

statement: He was an FFDO, and because FFDOs possess
weapons, any FFDO “may be armed.” Hoeper argues only
that to avoid any misinterpretation, Air Wisconsin should
have qualified the statement by adding that it had no
reason to think he was actually carrying his gun during
the trip to Virginia, especially because he was not allowed
to do so under §44921(f )(1).5 We agree that Air Wiscon-
sin’s statement could have been misinterpreted by some,
but we reject Hoeper’s argument for two reasons. First,
any confusion of the nature that Hoeper suggests would
have been immaterial: A reasonable TSA officer, having
been told only that Hoeper was an FFDO and that he was
upset about losing his job, would have wanted to investi-
gate whether Hoeper was carrying his gun. Second, to
accept Hoeper’s demand for such precise wording would
vitiate the purpose of ATSA immunity: to encourage air
carriers and their employees, often in fast-moving situa-
tions and with little time to fine-tune their diction, to
provide the TSA immediately with information about
potential threats. Baggage handlers, flight attendants,
gate agents, and other airline employees who report suspi-
cious behavior to the TSA should not face financial ruin if,
in the heat of a potential threat, they fail to choose their
words with exacting care.6
——————
5 See Tr. of Oral Arg. 42–43 (concession by Hoeper’s counsel that “it

would have been true for [Air Wisconsin] 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”).
While we take the jury’s findings at face value, we note that the
record suggests Air Wisconsin may well have added the qualifier that
Hoeper argues was necessary. An internal TSA e-mail summarizing
Doyle’s call concludes by stating: “[Redacted] does not believe [redacted]
is in possession of a firearm at this time.” App. 414.
6 Hoeper also takes issue with Air Wisconsin’s statement that it was

“concerned about . . . the whereabouts of his firearm,” App. to Pet. for
 Cite as: 571 U. S. ____ (2014) 15

Opinion of the Court

We next consider Air Wisconsin’s statement that Hoeper
“was terminated today.” App. to Pet. for Cert. 111a.
When Air Wisconsin made that statement, Hoeper had not
yet been fired. But everyone knew the firing was almost
certainly imminent. Hoeper acknowledged that his em-
ployment was “at [Air Wisconsin’s] discretion” after his
third failed test, App. 193, and the agreement between
him and Air Wisconsin stated that his “fourth . . . attempt”
to pass the test would be his “final” one, id., at 426. No
reasonable TSA officer would care whether an angry, po-
tentially armed airline employee had just been fired or
merely knew he was about to meet that fate.
Finally, we consider Air Wisconsin’s statements that
Hoeper was “[u]nstable” and that it was “concerned about
his mental stability.” App. to Pet. for Cert. 111a. Al-
though the details of Hoeper’s behavior during the simula-
tor session may be disputed, Hoeper himself testified that
he had become visibly angry: He decided “that’s it,” he
removed his headset and “toss[ed] it,” and he accused the
instructor—at an “elevated decibel level,” and with an
expletive—of “railroading the situation.” App. 203–204. It
would surely have been correct, then, for Air Wisconsin to
report that Hoeper “ ‘blew up’ ” during the test. 2012 WL
907764, *8. The question is whether, from the perspective
of a reasonable security officer, there is any material
difference between a statement that Hoeper had just “blown
up” in a professional setting and a statement that he
was “[u]nstable.” We think not.
We are no more troubled by Air Wisconsin’s related
statement that it was “concerned about [Hoeper’s] mental
stability.” Hoeper is correct that many of the Air Wiscon-
sin officials who attended the meeting at headquarters
——————

Cert. 111a. But his arguments concerning this statement are the same

as those concerning the statement that he “may [have] been armed,”

ibid., and we reject them for the same reasons.

16 AIR WISCONSIN AIRLINES CORP. v. HOEPER

Opinion of the Court

might not have framed their concerns in terms of “men-
tal stability.” LaWare, for instance, testified that “[t]hose
weren’t the words that [he] would have anticipated” when
he directed Doyle to call the TSA. App. 272. But the
officials who attended the meeting did harbor concerns
about Hoeper’s mental state: They knew he had just
“blown up,” and they worried about what he might do
next. It would be inconsistent with the ATSA’s text and
purpose to expose Air Wisconsin to liability because its
employee could have chosen a slightly better phrase than
“mental stability” to articulate its concern. Just as
“[m]inor inaccuracies do not amount to falsity” in the
defamation context, “so long as ‘the substance, the gist,
the sting, of the libelous charge be justified,’ ” Masson, 501
U. S., at 517, a statement that would otherwise qualify for
ATSA immunity cannot lose that immunity because of
some minor imprecision, so long as “the gist” of the state-
ment is accurate. Doyle’s statements to the TSA accu-
rately conveyed “the gist” of the situation; it is irrelevant
whether trained lawyers or judges might with the luxury
of time have chosen more precise words.
Hoeper’s overarching factual theory appears to be that
members of the BAe-146 team, including Doyle and Schuer-
man, harbored personal animosity toward him, which
caused them to manipulate the proficiency tests in order
to fail him. But even if Hoeper were correct about
all this (and we express no view on that question), we do
not see why it would have made him any less a threat in
the eyes of a reasonable security officer. As between two
employees—one who thinks he is being fired because of his
inadequate skills, another who thinks he is being fired
because his employer hates him—the latter is presumably
more, not less, likely to lash out in anger.
The partial dissent argues that Doyle’s reference to
Hoeper’s “mental stability” was so egregious as to make
his report to the TSA the basis of a $1.2 million defama-
 Cite as: 571 U. S. ____ (2014) 17

Opinion of the Court

tion judgment. We disagree. While lawyers and judges
may in some contexts apply the label “mentally unstable”
to people suffering from serious mental illnesses, see post,
at 4 (SCALIA, J., concurring in part and dissenting in part),
that is hardly the only manner in which the label is used.
A holding that Air Wisconsin lost its ATSA immunity by
virtue of Doyle’s failure to be aware of every connotation of
the phrase “mental stability” would eviscerate the immun-
ity provision. All of us from time to time use words that,
on reflection, we might modify. If such slips of the tongue
could give rise to major financial liability, no airline would
contact the TSA (or permit its employees to do so) without
running by its lawyers the text of its proposed disclosure—
exactly the kind of hesitation that Congress aimed to
avoid.
The partial dissent further argues that Hoeper’s “dis-
play of anger” made him no more a threat than “millions
of perfectly harmless air travelers.” Post, at 4. But
Hoeper did not just lose his temper; he lost it in circum-
stances that he knew would lead to his firing, which he
regarded as the culmination of a vendetta against him.
And he was not just any passenger; he was an FFDO,
which meant that he could plausibly have been carrying a
firearm. In short, Hoeper was not some traveling busi-
nessman who yelled at a barista in a fit of pique over a
badly brewed cup of coffee.
Finally, the partial dissent relies on an expert’s testi-
mony “that Hoeper’s behavior did not warrant any report
to the TSA.” Post, at 4 (citing App. 356). But the expert
appears to have based that statement on an outdated
understanding of reporting obligations that is flatly at
odds with the ATSA. Prior to the ATSA, “airlines were
responsible for assessing and investigating possible
threats to airline security.” 2012 WL 907764, *14 (Eid, J.,
concurring in part and dissenting in part). But the ATSA
shifted that responsibility to the TSA, creating a policy
18 AIR WISCONSIN AIRLINES CORP. v. HOEPER

Opinion of the Court

“known as ‘when in doubt, report.’ ” Ibid.; see supra, at 9.
The expert who believed that Hoeper’s conduct did not
warrant a report to the TSA also believed that airlines
have “an obligation . . . to filter out . . . the low noise from
. . . what’s significant” in reporting threats. App. 356.
That understanding does not comport with the policy that
Congress chose to enact.
The Colorado Supreme Court recognized that even if the
facts are viewed in the light most favorable to Hoeper, Air
Wisconsin “would likely be immune” had it “reported that
Hoeper . . . knew he would be terminated soon, that he
had acted irrationally at the training three hours earlier
and ‘blew up’ at test administrators, and that he was an
FFDO pilot.” 2012 WL 907764, *8. But the court erred in
parsing so finely the distinctions between these hypothet-
ical statements and the ones that Air Wisconsin actually
made. The minor differences are, for the reasons we have
explained, immaterial as a matter of law in determining
Air Wisconsin’s ATSA immunity.
By incorporating the actual malice standard into
§44941(b), Congress meant to give air carriers the
“ ‘breathing space’ ” to report potential threats to security
officials without fear of civil liability for a few inaptly
chosen words. New York Times, 376 U. S., at 272. To hold
Air Wisconsin liable for minor misstatements or loose
wording would undermine that purpose and disregard the
statutory text.
* * *
The judgment of the Supreme Court of Colorado is
therefore reversed, and the case is remanded for proceed-
ings not inconsistent with this opinion.
It is so ordered.
 Cite as: 571 U. S. ____ (2014) 1

Opinion of SCALIA, J.

SUPREME COURT OF THE UNITED STATES
_________________

No. 12–315
_________________

AIR WISCONSIN AIRLINES CORPORATION,

PETITIONER v. WILLIAM L. HOEPER

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF

COLORADO

[January 27, 2014]

JUSTICE SCALIA, with whom JUSTICE THOMAS and
JUSTICE KAGAN join, concurring in part and dissenting in
part.
I agree with the Court that under the Aviation and
Transportation Security Act (ATSA), 49 U. S. C. §44901
et seq., an airline may not be denied immunity for a re-
port it made to the Transportation Security Administration
(TSA) absent a finding that the report was materially
false. I also agree that, in this context, materiality means
that the falsehood had a natural tendency to influence a
reasonable TSA officer’s determination of an appropriate
response to the report; and that neither the jury nor the
courts below considered material falsity in this ATSA-
specific way. I therefore join Parts I, II, and III–A of the
Court’s opinion.
Having answered the question we granted certiorari to
decide, see 570 U. S. ___ (2013), I would stop there and
remand the case for further proceedings. Instead, the
Court proceeds to “apply the [ATSA] material falsity
standard to the facts of this case” in the first instance,
ante, at 13, and concludes as a matter of law that Air
Wisconsin’s report to the TSA about William Hoeper was
not materially false. In so holding, the Court in my view
reaches out to decide a factbound question better left to
the lower courts, and then proceeds to give the wrong
2 AIR WISCONSIN AIRLINES CORP. v. HOEPER

Opinion of SCALIA, J.

answer. I therefore respectfully dissent from Part III–B
and the disposition.
We have held that under the First Amendment, a court’s
role is to determine whether “[a] reasonable jury could
find a material difference between” the defendant’s state-
ment and the truth. Masson v. New Yorker Magazine,
Inc., 501 U. S. 496, 522 (1991). That makes sense, since
materiality is the sort of “ ‘mixed question of law and fact’ ”
that “has typically been resolved by juries.” United States
v. Gaudin, 515 U. S. 506, 512 (1995). The jury has a vital
role to play in the materiality inquiry, which entails “ ‘deli-
cate assessments of the inferences a “reasonable deci-
sionmaker” would draw from a given set of facts and the
significance of those inferences to him’ ” and is therefore
“ ‘peculiarly one for the trier of fact.’ ” Ibid. (quoting TSC
Industries, Inc. v. Northway, Inc., 426 U. S. 438, 450
(1976); brackets omitted). Such a question cannot be
withdrawn from the jury unless “the facts and the law will
reasonably support only one conclusion” on which “reason-
able persons . . . could [not] differ.” McDermott Int’l, Inc.
v. Wilander, 498 U. S. 337, 356 (1991). The same rule
applies to a determination of immunity from suit: When a
defendant raises qualified immunity on summary judg-
ment, the court must “adop[t] . . . the plaintiff ’s version
of the facts” unless “no reasonable jury could believe it.”
Scott v. Harris, 550 U. S. 372, 378–380 (2007).
Therefore, if we are to apply the ATSA materiality
standard to the complex record in this case in the first
instance, it is proper to view “the historical facts in the
manner most favorable to Hoeper,” as the Court purports
to do. Ante, at 13. We must of course begin by taking as
given the findings that we know the jury already made,
including that Air Wisconsin told the TSA that the airline
was “concerned about [Hoeper’s] mental stability” and that
he was an “[u]nstable pilot,” App. to Pet. for Cert. 111a
(special verdict form), and that those statements were
 Cite as: 571 U. S. ____ (2014) 3

Opinion of SCALIA, J.

false, 2012 WL 907764, *10 (Colo., Mar. 19, 2012). Next,
we must ask whether a reasonable jury could find the
remaining historical facts to be such that those statements
were not only false, but materially false from the perspec-
tive of a reasonable TSA agent. If not, judgment for Air
Wisconsin is proper; but if so, the ATSA materiality ques-
tion should be tried to a (properly instructed) jury. (Un-
less, of course, a reasonable jury would be compelled to
find facts that would render the statements materially
false, in which case judgment for Hoeper would be proper;
but that is assuredly not the case here.)
Applying that reasonable-jury standard, I do not see
how we can possibly hold as a matter of law that Air
Wisconsin’s report was not materially false. The Court
acknowledges Hoeper’s description of the confrontation
that spawned the airline’s threat report: After failing
a flight simulator test, Hoeper “decided ‘that’s it,’ he
removed his headset and ‘toss[ed] it,’ and he accused
the instructor—at an ‘elevated decibel level,’ and with
an expletive—of ‘railroading the situation.’ ” Ante, at 15
(quoting App. 203–204). A jury could credit Hoeper’s
account. It could also believe his “overarching factual
theory” that his anger was reasonable because the instruc-
tor had “manipulate[d]” the test to cause him to fail out of
“personal animosity,” ante, at 16—a theory that was not
without supporting evidence, see, e.g., App. 259–260 (pilot
testifying as expert witness that Hoeper’s testing was
“absolutely unfair” and “biased”). Moreover, there was
evidence from which a jury could conclude that no one who
interacted with Hoeper during or after the confrontation—
including the instructor—viewed him as either unstable or
threatening. See, e.g., id., at 15–16 (instructor acknowl-
edging that he “ ‘quickly realized it wasn’t a threatening
situation’ ”); id., at 29–31 (instructor testifying he “ ‘never
felt that [Hoeper] was going to go do something stupid,’ ”
“ ‘didn’t believe that Mr. Hoeper posed a threat in any way
4 AIR WISCONSIN AIRLINES CORP. v. HOEPER

Opinion of SCALIA, J.

to anybody else at all,’ ” “ ‘did not believe that Mr. Hoeper
was engaging in irrational behavior,’ ” and “ ‘deem[ed] him
perfectly safe to get on an airplane’ ”); id., at 462 (airline
representative who gave Hoeper permission to fly home
testifying he “had no concern that [Hoeper] was a physical
threat to anybody” and “didn’t believe he was mentally
unstable”).
In short, a jury could find that Hoeper did nothing more
than engage in a brief, run-of-the-mill, and arguably
justified display of anger that included raising his voice
and swearing, but that did not cause anyone, including the
person on the receiving end of the outburst, to view him as
either irrational or a potential source of violence. Viewing
the facts in that light, I cannot agree with the Court that
a reasonable TSA official would not “consider . . . im-
portant,” ante, at 13, the difference between an individual
who engaged in this sort of heated but commonplace dis-
play of anger, on the one hand, and on the other, an
individual whose colleagues regard him as “mentally unsta-
ble.” It is the difference between a category that no doubt
includes millions of perfectly harmless air travelers and
one that, in ordinary parlance, connotes an alarming
degree of unpredictability and aggressiveness. Indeed, we
have used that term in connection with individuals so
“dangerously mentally ill” that they may be subject to civil
confinement. Kansas v. Hendricks, 521 U. S. 346, 363
(1997). The importance of that difference was highlighted
by the expert testimony in this case of a former TSA Fed-
eral Security Director, who stated—based on a version of
the underlying facts the jury was entitled to accept—that
Hoeper’s behavior did not warrant any report to the TSA.
App. 356.*
——————
* The Court dismisses the former Director’s testimony because he
testified that in making threat reports to the TSA, airline officials
should use “common sense” to “filter out the garbage and report [only]
 Cite as: 571 U. S. ____ (2014) 5

Opinion of SCALIA, J.

The association with dangerous mental illness is not, as
the Court suggests, merely one “connotation of the phrase
‘mental [in]stability’ ” among many, ante, at 17; it is the
everyday understanding of that phrase. The Court says
that this is “hardly the only manner in which the label is
used,” ibid., but it does not even attempt to describe an-
other usage, let alone one that would be a materially
accurate description of the facts of this case as a jury
might find them. The Court also suggests that the cir-
cumstances of this case—particularly the fact that Hoeper
knew his firing was imminent, had reason to be angry
with the airline, and was authorized to carry a firearm—
distinguish Hoeper’s confrontation with the instructor
from an ordinary “fit of pique.” Ibid. But if so, it was all
the more important for the airline to make an accurate
report to the TSA, so that the agency could assess the
possible danger and determine an appropriate response.
Falsely reporting to the TSA that a young Irishman is an
IRA terrorist is much more likely to produce a prompt
and erroneous response than reporting that a 70-year-old
English grandmother is. The circumstances the Court
identifies enhanced, rather than diminished, the likeli-
hood that the false “mentally unstable” designation would
have a material effect on the TSA’s response.
In sum, it is simply implausible that, taking the facts of
——————
really suspicious incidents,” App. 356, a view the Court deems “flatly at
odds with the ATSA,” ante, at 17. The ATSA, however, simply requires
airlines to report “threat[s] to civil aviation,” 49 U. S. C. §44905(a). The
statute surely places a heavy thumb on the scale in favor of reporting,
but it certainly does not preclude the exercise of reasonable judgment
in deciding what rises to the level of a “threat” and what constitutes, as
the former Director put it, irrelevant “garbage.” And even if one
disagrees with the former Director that no report should have been
made at all, the point is that a reasonable jury could have considered
his testimony relevant to establishing that falsely expressing concerns
about an individual’s “mental stability” in the circumstances of this
case would have a material effect on the TSA’s decisionmaking process.
6 AIR WISCONSIN AIRLINES CORP. v. HOEPER

Opinion of SCALIA, J.

this case in the light most favorable to Hoeper, a reason-
able jury would have to find that the report of mental in-
stability would have no effect upon the course of action
determined by the TSA. The Court’s holding to the con-
trary demonstrates the wisdom of preserving the jury’s
role in this inquiry, designed to inject a practical sense
that judges sometimes lack. I respectfully dissent from
that holding.