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If You See Something, Verify First?

The slogan “If you see something, say something” has been a part of American transportation for over a decade - long enough to amass references ranging from Reddit threads to an extended joke on an episode in the second season of “30 Rock.”

Beneath the awareness campaigns, and the jokes based on them, is a simple premise: that the responsible thing to do is to report suspicious behavior, whether in an airport, a subway or a bus depot. Yet citizens would hesitate to speak up if it turned out they could be sued for slander if their suspicions turned out to be groundless.

We came pretty close to that dangerous state of affairs. Fortunately, the Supreme Court recently ruled in favor of the speaker - in this case an airline - that reported its suspicions to the Transportation Security Administration.

Patrick Doyle, an employee in 2004 with Air Wisconsin Airlines, contacted the TSA regarding William Hoeper, the plaintiff in the case. Hoeper, then an Air Wisconsin pilot, was in the process of being discharged, and was being sent home to Denver from Washington. Doyle was concerned about Hoeper’s frame of mind and, of more immediate concern, the whereabouts of Hoeper’s firearm.

TSA officials pulled Hoeper off his flight to interview him, at which point they determined that Doyle’s concerns were unfounded. Hoeper sued, claiming Doyle’s comments were reckless and defamatory.

The legal concept at play is that of “actual malice,” a standard first expressed 50 years ago in a libel case called New York Times Co. v. Sullivan. L.B. Sullivan was the Public Safety commissioner of Montgomery, Ala., at the time the New York Times ran an advertisement that included criticism of that city’s police actions against civil rights protesters. Though Sullivan was not named, he made a written demand for a public retraction; when the Times did not comply, he filed a libel suit. The paper argued that even if the account was factually inaccurate, the First Amendment’s guarantees of speech and press freedom require some leeway when discussing the conduct of public officials.

The Supreme Court agreed, and set the standard that stories about public officials can only be libelous when the person reporting either knows the statement is false or acts with reckless disregard as to whether it is true. Essentially, people who know or should have known their statements about public officials are false are open to libel charges; honest mistakes and factually accurate accounts are protected. Subsequent cases extended the actual malice standard, notably to include other public figures such as entertainers.

All of this is why, on the whole, American law offers much more wide-reaching protection to the press than do other jurisdictions, such as the United Kingdom and Canada.

In the Air Wisconsin decision, the court is essentially extending the principle of actual malice to contexts in which the report in question is not made to the public through the media, but to the government in situations where security or safety may be involved. Justice Sonia Sotomayor, who authored the Court’s unanimous opinion, said the law gives airline employees protections specifically to ensure they report even minor safety concerns without hesitation.

“All of us from time to time use words that, on reflection, we might modify,” Sotomayor wrote. “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.”

In other words, “If you see something, say something” will not work if we have to amend it to “If you see something, verify that what you see is truly a threat before you say something or face legal consequences.”

Airlines are generally given statutory immunity from defamation charges for safety reports, and the court has shown understandable resistance to stripping airlines of that immunity in cases where the reports are not materially false. Hoeper, who had claimed during a simulator test that the administrator was manipulating the test against him, had been seen to raise his voice and swear at the administrator. Further, Doyle had correctly noted that Hoeper was authorized to carry a gun on flights that he worked.

In this day and age, there is nothing inherently defamatory in being subject to a security search or follow-up interview at the airport. Most of us are subject to a virtual strip search every time we enter the gate area. Since there is no negative inference implied when authorities investigate a tip, there is no reason to make tipsters gun-shy about reporting potentially dangerous situations. Even if everyone assumed the worst about the subjects of such scrutiny, the benefits of unfettered communication - especially to travelers and the people responsible for ensuring their safety - easily outweigh the momentary inconvenience and embarrassment to the targeted traveler.

So if you see something, feel free - in fact, feel obliged - to say something. Please.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s recently updated book, The High Achiever’s Guide To Wealth. His contributions include Chapter 1, “Anyone Can Achieve Wealth,” and Chapter 19, “Assisting Aging Parents.” Larry was also among the authors of the firm’s previous book Looking Ahead: Life, Family, Wealth and Business After 55.

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