Colorado man at center of important lawsuit on libel verus free speech

US Supreme Court on the day of oral arguments

We all remember the fable of the boy who cried wolf. The moral Aesop illustrates is that liars are rewarded, until the fabrication becomes reality.

This week the U.S. Supreme Court held that airlines are immune from defamation liability when making reports to the Transportation

Security Administration, even when those reports are known to be false or are so reckless as to be a willful disregard to the truth.

In 2004, Coloradan William Hoeper was employed by Air Wisconsin Airlines. The airline was changing its entire fleet of planes and was requiring pilots to become certified on the new aircraft. Hoeper was nearing retirement age and had failed three previous certification exams.

During the fourth attempt in Northern Virginia, Air Wisconsin told Hoeper if he failed again, he’d be terminated. Hoeper became convinced that the airline was sabotaging his exam. A Colorado jury later agreed this was indeed the case.

Hoeper exchanged some expletives and other choice words with his supervisor, Patrick Doyle, before announcing that he was quitting and calling the pilots’ union. Doyle immediately booked Hoeper on the first flight back to Denver.

While Hoeper was boarding a regular commercial plane bound for Colorado, Doyle was calling the TSA. Doyle told the TSA that an “unstable pilot” was boarding a plane and that he was “concerned” because the pilot was terminated earlier and might be “armed” and dangerous. The Colorado Supreme Court later held these statements to have been “made with reckless disregard of their truth or falsity.” Doyle knew Hoeper was a deputized federal flight deck officer, which entitles him to carry a firearm when flying.

As in Aesop’s fable, when wolf is cried, all the villagers go running to save the boy from the pack of vicious animals. Here, the TSA sent snowplows and fire trucks to stop the Boeing 757 from proceeding down the tarmac. A SWAT team came bursting into the cabin. Meanwhile, Hoeper was looking for the “terrorist” on his flight, not knowing the special agents were after him.After a lengthy interrogation, no charges were filed and Hoeper was finally re-united with his family in Colorado. Hoeper immediately filed a defamation lawsuit against Air Wisconsin Airlines, alleging vicarious liability for the actions of its agent, Patrick Doyle.

Defamation is a statement that adversely affects a person’s reputation. Reputation has an economic value upon which individuals in our society peddle goods and services. Defamation is also about damages to a person’s good name and credibility. If someone damages your reputation, then they have damaged your economic value.

my ticket to the oral arguments

A Colorado jury awarded Hoeper $1.2 million in damages ($849,625 in presumed damages, $350,000 in punitive damages and $222,123.09 in costs).

Air Wisconsin appealed to the Court of Appeals, alleging that it was immune from liability pursuant to the Aviation and Transportation Security Act.

The ATSA provides that an air carrier that voluntarily discloses suspicious activity “shall not be civilly liable.”

The Colorado Supreme Court annually chooses a case to hear in front of Colorado high school students; in 2012, Hoeper v. Air Wisconsin Airlines was the case. The court upheld the jury’s verdict and the appeals court ruling.

The U.S. Supreme Court granted a writ of certiorari to Air Wisconsin, and oral arguments were heard on a frigid and snowy day in Washington, D.C. (I was fortunate to attend the proceedings.)

All odds were against Hoeper. The Obama administration sided with the airlines and feared that liability for defamatory statements would discourage airlines and their employees from reporting suspicious activity to the TSA. Even The New York Times and The Washington Post filed amicus briefs with the Court, siding with the petitioner, as they didn’t want to see penalties for “First Amendment speech.”

Justice Sonia Sotomayor delivered the opinion of the court, which reversed the finding of the Colorado Supreme Court, by granting immunity to airlines who make reports to the TSA. Sotomayor said, “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.”

Justices Antonin Scalia, Clarence Thomas and Elena Kagan were the dissenters. It is odd to see two of the most conservative justices joining one of the most liberal. They argued (correctly, I believe) that a jury, made up of regular Americans, could make the determination of whether Hoeper was a threat to public security or if Doyle made the report based on a vindictive and reckless disregard for the truth or falsity of the information being reported.

Lies should not be rewarded. As in the tale of the boy who cried wolf, this week’s ruling encourages abuse and recklessness.
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M Soper (Op Ed), "Colorado man at center of important lawsuit on libel verus free speech." The Daily Sentinel. Grand Junction, Colo. 2 Feb 2014, B4 <http://www.gjsentinel.com/opinion/articles/colorado-man-at-center-of--important8232-lawsuit-o> accessed 9 Feb 2014.

M Soper (Op Ed), "Case of Colorado’s defamed pilot shows no regard for truth." The Western Slope Watchdog. Montrose, Colo. 2 Feb 2014, Opinion Section. <http://westernslopewatchdog.com/2014/02/guest-editorial-case-of-colorados-defamed-pilot-shows-no-regard-for-truth/> accessed 9 Feb 2014.

Matt Soper meets head of US Secret Service

Matt Soper, a resident of Orchard City and former trustee, had the opportunity on Friday, February 15, 2013 to have lunch with US Secret Service Director Mark Sullivan during his visit to the University of New Hampshire’s School of Law. Director Sullivan has announced his intentions to retire, after 30 years with the agency, on February 22, 2013.

The outgoing Secret Service director said he was pleased with the work he had achieved since being appointed to director in 2006.

Mr. Soper said, “I asked Director Sullivan about Colorado Senate Bill 13-013, which is being sponsored by local State Senator Steve King.”

Secret Service Director Mark Sullivan (on right) & Matt Soper

Colorado State Senator King’s proposed legislation will give Secret Service agents limited peace officer authority in the State of Colorado. The premise for this bill stems from Colorado’s increased position in presidential politics and gives the Secret Service the ability to detain or arrest suspects, under Colorado law, who threaten individuals whom the Secret Service is charged with protecting.

Problems have arisen where jurisdictional issues have resulted in questions sufficient cause under federal law and possible usurping state authority. One such issue, resolved last summer before the US Supreme Court, concerned a Summit County resident who confronted then-Vice President Dick Cheney about the War in Iraq. The Secret Service felt the suspect’s sudden aggressive movement warrant detaining the individual. The individual sued, claiming his First Amendment right to political speech had been infringe and that the agents did not have authority in Colorado to detain him. The Supreme Court ruled in favor of the Secret Service and the agents, holding that the agents have immunity.

State Senator King hopes to resolve the conflict in jurisdictional issues by granting the Secret Service limited peace officer status while they are within the State of Colorado. Secret Service Director Sullivan indicated he supported measures designed to enhance cooperation.

Mr. Soper and Director Sullivan also talked about how the Secret Service is charged with more than protecting the President and Vice President and their families. Around 1,000 agents are assigned to the presidential detail, but this pales in comparison to the number of agents who are cracking down on counterfeiting and international criminal attempts to disrupt America’s monetary system.

The US Secret Service began in 1865, after the assassination of President Abraham Lincoln. Originally the agency fell under the auspices of the Treasury Department was tasked with protecting the president and stopping counterfeiters. Today the Secret Service is under the Department of Homeland Security and protects high level public official both domestically and abroad. The agency continues to suppress counterfeiting and electronic fraud, and cybercrime affecting the monetary supply. 

Is censorship without due process like security checks without probable cause?

Is the pursuit of safety worth relinquishing essential liberty? Civil liberties are being eroded at an alarmingly fast rate. Newspapers have been filled with examples of human rights being trampled in the name of protection and security. 

Wikipedia, Reddit, and approximately 7,000 smaller websites recently coordinated service blackouts to protest the Stop Online Piracy Act (SOPA) and PROTECT IP Act (PIPA) which were being voted on in the US Congress. The bills would have given law enforcement the ability to protect digital private property rights by blocking web content which might violate US law. The legislation would have threatened the 1^st Amendment right of free speech and allowed the federal government to censor certain websites without due process of law.

America’s government has lulled its citizens into a false sense of security. Flying is no longer merely about traveling from one city to another, but involves queuing for what feels like ages, placing all liquids of three ounces or less into quart sized bags, and stripping shoes, coats, and belts, along with all other loose objects, into a tray for scanning. This is followed next by the preverbal walk through the metal detector and/or body-scanner, and for the ‘lucky’ few – full body pat down by a Transportation Security Administration (TSA) officer. For those refusing, they get the Rand Paul treatment. Flying in the ‘free world’ has become an expo of liberty in derogation.

Al-Qaeda has single-handedly eroded our essential liberty by giving governments a tool to prey on citizens - FEAR. In the name of security and safety, our government has chosen the means by which to protect us, the people, from terrorists. Fear has led to a proliferation of the “security industrial complex”.

The rise of the military [security] industrial complex: A recent report out of the UK put the Homeland Security Industry at a global market valuation of nearly $200 billion per annum. Despite the killing of al-Qaeda CEO, Osama bin Laden, economic woes and growing national debts, aren’t holding governments back on funding counter-terror activities. People have begrudgingly said government knows best and accepted a world with security checks, surveillance systems, and restrictions on travel and personal effects.

In spite of our government’s efforts, are we safer today than we were prior to September 11, 2001? The Department of Homeland Security can cite numerous cases of would be terrorists who have been disrupted in their plot to harm Americans. The Justice Department has deported, extradited, or tried dozens of terrorists. Yet, through all these interventions and billions of dollars spent both at home and abroad, America is as much at risk today as it was eleven years ago. The 9-11 Commission Report points out measures were in place to impede such attacks; however, an ‘infallible’ bureaucracy failed to react timely to overt indications of threats.

The most important change since 9-11 has been the securing of the cockpit door to prevent turning a plane into a ‘guided missile’. Studies have shown if terrorists cannot enter the cockpit and take control of the plane, then the worst damage they can inflict is bodily harm to passengers or blowing up the plane. People who become victims have a right of self-defence and tend to react if life and limb are in imminent threat. The best example is United Airlines flight 93, where the passengers reacted to the suicide hijacking by rushing the cockpit. The most lethal weapons in the war on terror is individual people, everyday heroes, not a government willing to use fear to erode personal freedoms and liberties.

The only way to stop the proliferation of the ‘security industrial complex’ is to stop feeding it! I want a leader who isn’t afraid to admit our government has lulled us into a false sense of security. I’d rather accept the risks of freedom, and have more freedom than the protection of an overreaching, ineffective and ever centralized bureaucracy.