Air Wisconsin Airlines Corp. v. Hoeper - Oral Argument - December 09, 2013

Air Wisconsin Airlines Corp. v. Hoeper

Media for Air Wisconsin Airlines Corp. v. Hoeper

Audio Transcription for Opinion Announcement - January 27, 2014 in Air Wisconsin Airlines Corp. v. Hoeper

Audio Transcription for Oral Argument - December 09, 2013 in Air Wisconsin Airlines Corp. v. Hoeper

John G. Roberts, Jr.:

We'll hear argument first this morning in Case 12-315, Air Wisconsin Airlines v. Hoeper.

Mr. Cohn.

Jonathan F. Cohn:

Mr. Chief Justice, and may it please the Court:

Not even Mr. Hoeper can defend the decision below and for good reason.

Under the plain terms of the statute and consistent with this Court's First Amendment precedence, truth matters, and airlines should not lose their ATSA immunity unless their statements are materially false.

None of that is in dispute anymore.

Also not in dispute, I think, is that Air Wisconsin was justified in picking up the phone, calling TSA and conveying certain core facts; namely, that Mr. Hoeper was mad at the airline; that he was a Federal flight deck officer or FFDO; that he had walked out on his training, his last chance to keep his job, and he was about to board a plane.

I don't believe any of those facts are in dispute.

What is in dispute is how those facts were framed or phrased to TSA in that call.

How the report was packaged and did--

Antonin Scalia:

I'm -- I'm not sure it -- you said it is conceded that -- that those things should have been brought to the airline's attention.

Has that been conceded?

I'm not sure.

Jonathan F. Cohn:

--I think they--

Antonin Scalia:

I think -- I think they said if it -- if they were brought, they should have been brought in a different fashion, but I'm not -- I'm not sure they -- they have conceded that.

Jonathan F. Cohn:

--I believe they have conceded, Justice Scalia, that those facts could have been conveyed, justifiably.

If we had conveyed those core facts using different words, there would not be any issue.

Antonin Scalia:

Well, you could convey anything justifiably, sure, I agree with that.

Jonathan F. Cohn:

And the question, Justice Scalia, is whether we framed or phrased the report in an adequate manner.

And in assessing that issue, the question comes down to how much breathing space airlines should be given in making these reports.

How much room there should be for permissible characterization and expression in making these reports.

And context should be kept in mind in answering that question, three things in particular.

First, these reports are being made by airline employees such as pilots and flight attendants and baggage handlers and ticket agents who are being told by TSA, they have to report in realtime without investigation, without calling their lawyer, without stopping to think on how to refine the perfect script.

And they are being told to do this based upon their suspicions.

In some cases, suspicions of other people's emotions or state of mind.

That's one critical piece of context.

Samuel A. Alito, Jr.:

Well, Mr. Cohn, on the--

Ruth Bader Ginsburg:

Can -- can we go back to your response to Justice Scalia?

You said that the Respondents conceded.

But -- but isn't it the case that it was the Colorado Supreme Court that said that the airline likely would have been immune if they had phrased the report more cautiously?