Air Wisconsin Airlines Corp. v. Hoeper, decided yesterday, presented the question whether the Aviation and Transportation Security Act (ATSA) gave Air Wisconsin immunity for its disclosures to the TSA regarding the possible dangers posed by Hoeper, a disgruntled employee. The ATSA generally provides immunity except for any disclosure “made with actual knowledge that the disclosure was false, inaccurate, or misleading” or “any disclosure made with reckless disregard as to the truth or falsity of that disclosure.” The key issue was whether Air Wisconsin would get immunity if its disclosures were in fact materially true, even if they were (a) made recklessly and (b) not true in every particular.
The Court, per Justice Sotomayor, noted that the statutory language tracked the Court’s previous “actual malice” standard in New York Times v. Sullivan. The opinion then contains this crucial passage:
One could in principle construe the language of the actual malice standard to cover true statements made recklessly. But we have long held, to the contrary, that actual malice entails falsity. [citing cases] …
Indeed, we have required more than mere falsity to establish actual malice: The falsity must be “material.” Masson v. New Yorker Magazine, Inc., 501 U. S. 496, 517 (1991). As we explained in Masson, “[m]inor inaccuracies do not amount to falsity so long as ‘the substance, the gist, the sting, of the libelous charge be justified.’” Ibid. …
These holdings were settled when Congress enacted the ATSA, and we therefore presume that Congress meant to adopt the material falsity requirement when it incorporated the actual malice standard into the ATSA immunity exception. “[I]t is a cardinal rule of statutory construction that, when Congress employs a term of art, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it is taken.” FAA v. Cooper, 566 U. S. ___, ___ (2012) (slip op., at 6) (internal quotation marks omitted). The actual malice standard does not cover materially true statements made recklessly, so we presume that Congress did not mean to deny ATSA immunity to such statements.
To be clear, this is originalism. It is statutory originalism, but it’s not different in method from ordinary originalist analysis.
For example, in an article I wrote with Saikrishna Prakash a while back (111 Yale L.J. 231), we asked whether the original meaning of the phrase “the executive Power” in Article II, Section 1, included at least some independent foreign affairs power. We concluded it did (even though one could in principle construe the language otherwise) in significant part because that is how the phrase had been used in well-known pre-1787 writings. That is, to paraphrase the words the Court quoted from FAA v. Cooper, we thought that when the framers (of the Constitution) employed a term of art (“executive Power”), they presumably knew and adopted the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken.
One might say that this isn’t the right way to interpret statutes (although the Court seems pretty sure about it for now – this part of the Hoeper opinion was unanimous -- and the key quote from Cooper is originally from a 1952 Jackson opinion). Perhaps the Court should interpret statutes to reach what the Justices think is the best result, at least if it is a possible reading of the text. And one might say that even if it is the right way to interpret statutes, it’s not the right way to interpret the Constitution. My point (for now) is just that some explanation is needed for these alternate positions, other than that originalism is a strange outlier. Whatever its status in constitutional law, statutory originalism is so ordinary we don’t even notice it.