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Home > SPJ News > SPJ joins amicus brief encouraging court to focus on statutory question in Air Wisconsin v. Hoeper

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SPJ joins amicus brief encouraging court to focus on statutory question in Air Wisconsin v. Hoeper



For Immediate Release:

David Cuillier, SPJ President, 520-248-6242,
Ellen Kobe, SPJ Communications Coordinator, 317-920-4785,

INDIANAPOLIS — The Society of Professional Journalists has signed on to an amicus brief written by the Reporters Committee for Freedom of the Press that encourages the Supreme Court to consider statutory immunity before determining actual malice.

Air Wisconsin v. Hoeper, a case that is pending on the merits before the U.S. Supreme Court, is the first libel case the Supreme Court has agreed to hear in nearly a decade. The case arose after airline employees reported to the TSA their concerns about a disgruntled employee who had an irrational outburst at a training session. This employee knew that his termination was imminent, was authorized to carry a weapon on an aircraft and was about to board a commercial flight.

Though it is not a press case, it does have significant implications for media libel law.

The case involves a state statutory immunity from libel suits for airlines and employees that report potential security threats, with an exception if the statement was made with “actual malice.” As distinguished from common law malice, which is usually interpreted as hatred or ill will, “actual malice” is a specific term that requires a showing that a statement is made knowing that it is false or with “reckless disregard for the truth.”

A jury in Colorado state court found that the statements were made recklessly without considering whether they were false, and the Colorado Supreme Court affirmed.

The Supreme Court could simply decide this case on the issue of the scope of a particular state statutory immunity and leave libel law itself intact. The Reporters Committee’s concern is that the Court may tackle a bigger issue: the interplay of the “actual malice” standard and falsity.

To date, it has been well-established as a matter of constitutional law that a libel plaintiff must demonstrate both that a statement is false and that it was made with some level of fault (negligence for private figures, actual malice for public figures) before succeeding on the claim. The reality is that courts often confuse the two, usually by holding that a statement is false and inferring without any evidentiary proof that it was made with negligence or actual malice. The Colorado Supreme Court did the opposite when it failed to consider whether the statement made recklessly was actually false.

The Reporters Committee’s primary goal is to convince the Supreme Court to answer only the statutory question and set aside the larger question regarding the interplay between falsity and fault for now.

“Any holding that the ATSA can expose airline employees to defamation liability for substantially true statements would run afoul of longstanding First Amendment jurisprudence, and would render the ATSA unconstitutional,” the brief says.

As a free press and free speech advocate, SPJ initiates and joins amicus briefs to support First Amendment and open records cases. Most recently, SPJ joined briefs discouraging courtroom restrictions and acknowledging that the NSA’s collection of American Civil Liberties Union telephone records violates the First and Fourth Amendments.

Founded in 1909 as Sigma Delta Chi, SPJ promotes the free flow of information vital to a well-informed citizenry; works to inspire and educate the next generation of journalists; and protects First Amendment guarantees of freedom of speech and press. For more information about SPJ, please visit


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