United States: U.S. Supreme Court Adds "Relevant Reader Or Listener" To "Material Falsity" Defamation Analysis

Chuck Tobin and Jerry Ganzfried are Partners in our Washington, D.C. office, Judy Nemsick is a Partner in our New York office


  • In its decision in Air Wisconsin Airlines Corp. v. Hoeper, the U.S. Supreme Court has ruled that "the relevant reader or listener" must be considered in assessing the falsity element in defamation lawsuits.
  • The Air Wisconsin ruling could lead to greater opportunities for the early dismissals of defamation claims.

The United States Supreme Court, in a non-media defamation ruling, has held that courts must now consider "the relevant reader or listener" in considering the falsity element in defamation lawsuits. The decision could strengthen defenses to all defamation claims, especially in the increasing specialization of media audiences in the digital era.


The Court's pronouncement yesterday in Air Wisconsin Airlines Corp. v. Hoeper overturned a Colorado jury's $1.2 million verdict in favor of a former pilot. The airline in 2004 had called TSA to report that pilot William Hoeper failed a flight-certification test, lost his temper with the instructor and left for the airport to catch a plane home. According to the Court's ruling, Air Wisconsin told the Transportation Security Administration (TSA) that Hoeper, who was licensed to carry a weapon on board, "may be armed," that the airline "was concerned about his mental stability and the whereabouts of his firearm" and that he was an "unstable pilot" who "was terminated today."

The Supreme Court Rules Statute Requires "Material Falsity"

The Court unanimously disagreed with the Colorado courts' legal analysis. The majority of the Justices held that the statements were protected under the immunity Congress provided to airlines under the Aviation and Transportation Security Act (ATSA), which ends the litigation. Three dissenting Justices, however, would have sent the decision back to Colorado for further proceedings.  

Congress granted broad protection under the ATSA, passed following 9/11, when airlines report potential security threats to TSA. The statute adopted the "actual malice" standard from the 1964 landmark defamation ruling New York Times v. Sullivan and expressly provides that immunity will not protect a statement made "with actual knowledge that the disclosure was false, inaccurate or misleading" or "with reckless disregard as to the truth or falsity of that disclosure."

The Court agreed with the airline that the actual malice standard also meant that Hoeper had to establish the material falsity of the statements, a different element of the defamation claim — the purpose of the statute itself, removing hesitation in swiftly reporting to TSA, made that clear. "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."

"Material Falsity" Looks at Audience Context

The Court then noted that under its leading 1991 ruling Masson v. New Yorker Magazine, Inc., "material falsity" turns on whether the literal truth, as compared with the statements at issue, "would have a different effect on the mind of the reader." The majority expanded on that standard in Hoeper:

"But the identity of the relevant reader or listener varies according to 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 immunity, by contrast, we care whether a falsehood affects the authorities' perception of and response to a given threat."

Under the ATSA, the Court held an airline should be protected "absent a substantial likelihood that" the intended audience, which the Court identified as "a reasonable security officer" would view the difference between the literal truth and the report "important in determining a response to the supposed threat." Otherwise, the statement is not "materially false" and therefore immune.

The majority of the Justices, examining Air Wisconsin's statements under the new standard, held that the airline's report was protected under the ATSA because they were not materially false:

  • The statement that Hoeper was a licensed flight officer "who may be armed" was literally true.
  • The statement that Hoeper "was terminated today" was not materially different than the literal truth — the airline had made plans to fire him but had not yet done so — because "[n]o reasonable TSA officer" would care if he "had just been fired or merely knew he was about to meet that fate."
  • The statement that Hoeper was "unstable" or that Air Wisconsin was concerned about his "mental stability" was not materially different had the airline instead reported that "in a professional setting" Hoeper "blew up" at the instructor.
  • The statement about Hoeper's "mental stability" also, according to the Court, "accurately conveyed 'the gist' of the situation." Air Wisconsin employees "did harbor concerns about Hoeper's mental state: They knew he had just 'blown up,' and they worried about what he might do next."

A Partial Dissent

Justice Antonin Scalia partially dissented in an opinion joined by Justices Clarence Thomas and Elena Kagan. Although the dissenters agreed with the majority on the legal standard, Justice Scalia wrote that from the facts, a Colorado jury could find Hoeper had stated a valid claim of material falsity in Air Wisconsin's report of an arguably "brief, run-of-the-mill, and arguably justified display of anger" that did not cause anyone "to view him as either irrational or a potential source of violence." The statute, to the dissenters, makes it "all the more important for the airline to make an accurate report to TSA."

Possible Implications for Future Defamation Claims

While the Court's ruling came in a narrow case interpreting immunity under a statute, its focus on the precise audience for the statements breaks new ground and does not appear to be limited to ATSA cases. In this era of increasingly niche social media, website, and legacy media publications and broadcasts, the Air Wisconsin v. Hoeper decision may provide more opportunities for the early dismissals of defamation claims.

Click here for a Holland & Knight account of the Air Wisconsin ruling that looks at its implications for the airline industry, including determining immunity under the Aviation and Transportation Security Act (ATSA).

Holland & Knight Partners Jerrold J. Ganzfried and Judith R. Nemsick filed an amicus curiae brief on behalf of DRI – The Voice of the Defense Bar, an organization of defense attorneys and in-house counsel that supported Air Wisconsin in this case. Partner Charles D. Tobin, on behalf of the National Press Club, also joined an amicus brief filed by a group of 16 media organizations that supported Air Wisconsin.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions