US Supreme Court to Hear Aviation Transportation Security Act - First Amendment Case

This week, on Wednesday, the Supreme Court of the United States will hear argument in Air Wisconsin Airlines Corp. v. Hoeper, a case involving the interpretation of a federal statute designed to encourage airlines to report suspicious behavior by immunizing them from civil liability for those reports unless they were made with actual malice under the First Amendment. The case touches on the Aviation and Transportation Security Act ("ATSA") and illustrates the ongoing tension between airline operations and post-September 11th safety concerns in our Constitutional Democracy.

Last week the Supreme Court of the United States heard oral argument of Northwest Airlines etc. v. Ginsberg. One observer remarked that

The most remarkable thing about the argument was the almost surreal similarity of the positions of the attorneys arguing for Northwest (former Solicitor General Paul Clement), the government (Assistant to the Solicitor General Lewis Yelin), and Ginsberg (Adina Rosenbaum of Public Citizen). All three agreed that some uses of an implied covenant are permissible, and not preempted. Thus, Clement readily conceded that when it is “just a rule of construction” that is “merely constructing the express terms of the contract,” the implied covenant should not be preempted.

A copy of the transcript appears here: