Air Wisconsin Airlines Corp. v. Hoeper

Justice RICE

delivered the Opinion of the Court.

T1 In this defamation action, we address whether a trial court must decide before trial if a party is immune from liability pursuant to the Aviation and Transportation Security Act (ATSA), 49 U.S.C. section 44941 (2006). Applying the principles of federal qualified immunity to the immunity conferred by the ATSA, we conclude that the trial court in this case erred by submitting to the jury the question of whether Air Wisconsin was immune from suit This error, however, is harmless because we conclude that Air Wisconsin is not entitled to immunity. In addition, our independent review of the record reveals clear and convincing evidence to support a finding of actual malice. 'We also hold that Air Wisconsin's statements are not protected as opinion and that the evidence is sufficient to support the jury's determination that the statements were false. Accordingly, we affirm the judgment of the court of appeals.

I. Bagkg‘round

12 Air Wisconsin, a commercial airline, employed William Hoeper as a pilot. The Transportation Security Administration (TSA) had issued Hoeper a firearm under a federal statute that authorizes TSA to deputize volunteer pilots as federal law enforcement officers "to defend the flight decks of aircraft ... against acts of criminal violence or air piracy." 49 U.S.C. $ 44921(a) (2006). Such a pilot is known as a federal flight deck officer (FFDO). Id.

18 After discontinuing its use of the type of aircraft that Hoeper had piloted for many years, Air Wisconsin required Hoeper to undertake training and pass a test certifying his proficiency in piloting another type of aircraft. Hoeper failed three such tests. Patrick Doyle, a manager at Air Wisconsin involved in Hoeper's testing, testified that after the second failed test, Hoeper lost his temper with Doyle. Doyle's contemporaneous notes of the second test day, however, did not mention the confrontation.¹ In addition, testimony established that Doyle and Hoeper drove together to their hotel after the meeting and had a drink together at the hotel bar. Also, another test administrator testified that, after the third failed test, Hoe-per confronted him, but Hoeper's demeanor was not threatening.

T4 After the three failed tests, Air Wisconsin gave Hoeper one last opportunity to pass the test. Hoeper knew that he would likely lose his job if he failed this fourth test. He flew from his home in Denver to Virginia to take the fourth test.

5 During the test, Hoeper became angry with the test administrators because he believed that the test administrators were deliberately sabotaging his testing. One administrator, Mark Schuerman, testified at trial that Hoeper ended the test abruptly, raised his voice at Schuerman, and used profanity. Schuerman testified that Hoeper's outburst startled him and that he feared for his physical safety during the confrontation, but not after the confrontation ended. Testimony also established that Hoeper told Schuerman that Hoeper intended to call the legal representative of the airline pilots' union to which he belonged.

16 After Hoeper left the testing facility, Schuerman told Doyle about the confrontation. Specifically, Schuerman testified that he told Doyle only that Hoeper blew up at him and was "very angry with [him]." Schuerman did not tell Doyle that he or anyone else at the testing center believed Hoeper would harm them or others. Doyle then instructed another Air Wisconsin employee who participated in the failed test to drive Hoeper to the airport and Doyle booked Hoeper on a flight from Virginia back to Denver. Doyle never sought nor received any additional information about the confrontation from others who were at the testing center that day or about Hoeper's demeanor after the confrontation.

T 7 Doyle knew that Hoeper was an FFDO pilot. He did not know if Hoeper had his government-issued firearm with him on the trip to Virginia, but he knew that Hoeper would have violated FFDO rules by carrying the firearm as a passenger on the airplane from Denver to Virginia. He also never sought nor received any additional information about whether Hoeper actually brought his firearm to Virginia.

T8 Based upon this information, Doyle called TSA to report Hoeper as a possible threat.² By the time Doyle called TSA, Hoe-per had been at the airport for about two hours waiting for his flight. After the call, Doyle wrote in his personal notes that he had told TSA that Hoeper was "a disgruntled employee (an FFDO who may be armed)" and that he was "concerned about the whereabouts of [Hoeper's] firearm, and [Hoeper's] mental stability at that time." At trial, Doyle denied having told TSA anything about Hoeper's mental stability. He added that he did not have the ability to assess Hoeper's mental stability.

T9 The jury found that Doyle made two statements to TSA:

(a) [Hoeper] was an FFDO who may be armed. He was traveling from IAD-DEN later that day and we were concerned about his mental stability and the whereabouts of his firearm. (b) Unstable pilot in FFDO program was terminated today.

T10 In response, TSA officials arrested Hoeper and searched him.

{11 The day after this incident, Doyle made notes about the meeting with Hoeper that occurred immediately after the second failed test. Doyle wrote that, after Hoeper lost his temper, Doyle ended the meeting "for fear of [his] own physical harm." He also noted that "[alfter heated discussion with [Hoeper), and due to my concerns for my safety," Doyle did not fully fill out a certain FFA form regarding the failed test. Doyle later changed these notes to read "due to my concerns for my safety and the safety of others at the [testing facility]."

112 Hoeper brought this action in Colorado against Air Wisconsin for defamation under Virginia law, among other claims. The parties agree that Virginia law applies to the substance of Hoeper's claims in this case.

113 Air Wisconsin moved for summary judgment,³ asserting that it was entitled to immunity as a matter of law under the ATSA. The trial court denied the motion because it determined that the jury was entitled to resolve disputed issues of fact that controlled the determination of immunity. Air Wisconsin also moved for a directed verdict under the same theory after the close of evidence, which the trial court also denied.

T 14 The trial court instructed the jury on the components of ATSA immunity and instructed that the jury could not find for Hoeper on the defamation claim if it determined that Air Wisconsin was immune under the ATSA. The jury returned a verdict in favor of Hoeper. The jury found by clear and convincing evidence that the two statements were defamatory and that Air Wisconsin made one or more of the statements "knowing that they were false, or so recklessly as to amount to a willful disregard for the truth."

4 15 Air Wisconsin appealed and the court of appeals affirmed. The court of appeals determined that the question of whether the judge or jury decides immunity under the ATSA is a procedural issue governed by Colorado law. It concluded that, under Colorado law, the trial court properly allowed the jury to determine whether the ATSA granted Air Wisconsin immunity in this case. The court of appeals also determined that clear and convincing evidence supported the jury's finding of actual malice and that the statements Doyle made were not protected as opinion or as substantially true. Air Wisconsin petitioned for certiorari, which we granted.⁴

II. ATSA Immunity

116 Federal law, not Colorado law, controls our determination of whether the judge or jury decides the issue of immunity under the ATSA. Applying the federal law of qualified immunity, we conclude that the immunity conferred by the ATSA is immunity from suit, not merely immunity from liability for damages. The trial court must therefore determine before trial whether an air carrier is immune from suit Although the trial court in this case erred by submitting the question to the jury, the error is harmless because we conclude that Air Wisconsin is not entitled to immunity under the ATSA.

A. Federal Law Controls

{17 The court of appeals determined that the right to a civil jury trial in Colorado is procedural and therefore "the allocation of decision-making between judge and jury is a procedural question to be governed by Colorado law." Hoeper v. Air Wis. Airlines Corp., 232 P.3d 230, 237 (Colo.App.2009). We disagree.

118 Colorado courts follow federal procedure when deciding immunity under federal law. For example, we look to federal procedures in determining whether a denial of summary judgment in a federal qualified immunity case is immediately appealable. Furlong v. Gardner, 956 P.2d 545, 552 (Colo.1998); see also Awad v. Breeze, 129 P.3d 1039, 1045 (Colo.App.2005). In addition, we have consulted federal law in determining whether immunity under the Health Care Quality Improvement Act (HCQIA), 42 U.S.C. section 11111 (2006), is a question of law for the court to decide. N. Colo. Med. Ctr., Inc. v. Nicholas, 27 P.3d 828, 838 (Colo.2001). We therefore consult federal law to determine whether the court must decide the question of immunity under the ATSA before trial.

{19 Moreover, we must presume that, "in the absence of a plain indication to the contrary, ... Congress when it enacts a statute is not making the application of the federal act dependent on state law." Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 43, 109 S.Ct. 1597, 104 LEd.2d 29 (1989) (quoting Jerome v. United States, 318 U.S. 101, 104, 63 S.Ct. 483, 87 L.Ed. 640 (1943)). Early resolution of federal qualified immunity is essential because it is "immunity from suit rather than a mere defense to liability [that] is effectively lost if a case is erroneously permitted to go to trial." Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). Congress did not intend for state law to govern the timing of the determination of immunity because the early resolution of that issue is an important facet of the protection Congress enacted. We therefore apply federal law to determine whether immunity is a question of law for the trial court to decide.

B. Immunity Under the ATSA is Determined by the Court

120 Applying the purpose of federal qualified immunity law, we conclude that immunity under the ATSA is a question of law to be determined by the trial court before trial.

121 Federal law contains the judicially-created doctrine of qualified immunity, see Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 78 L.Ed.2d 396 (1982), and other statutorily-granted immunities, see, eg., 42 U.S.C. section 11111 (immunity under HCQIA). Qualified immunity is based upon a conception that "where [a public] official's duties legitimately require action in which clearly established rights are not implicated, the public interest may be better served by action taken 'with independence and without fear of consequences." Mitchell, 472 U.S. at 525, 105 S.Ct. 2806 (quoting Harlow, 457 U.S. at 819, 102 S.Ct. 2727). These consequences encompass not only liability for damages, but also "the general costs of subjecting officials to the risks of trial-distraction of officials from their governmental duties, inhibition of discretionary action, and deterrence of able people from public service." Id. at 526, 105 S.Ct. 2806 (quoting Harlow, 457 U.S. at 816, 102 S.Ct. 2727). Federal qualified immunity is therefore immunity from suit, rather than merely a defense to liability. Id. As a result, "M{mmunity ordinarily should be decided by the court long before trial" in order to avoid the consequences of forcing officials to stand trial. Hunter v. Bryant, 502 U.S. 224, 228, 112 S.Ct. 534, 116 LEd2d 589 (1991) (citing Mitchell, 472 U.S. at 527-29, 105 S.Ct. 2806).

122 Because immunity under the ATSA is statutory, we also reference immunities conferred not by federal common law, but by federal statute. Immunity under the HCQIA, for example, only constitutes immunity from damages liability, not immunity from suit. Singh v. Blue Cross/Blue Shield of Mass., Inc., 308 F.3d 25, 35 (1st Cir.2002); Imperial v. Suburban Hosp. Ass'n, Inc., 37 F.3d 1026, 1031 (4th Cir.1994); Manion v. Evans, 986 F.2d 1036, 1039-42 (6th Cir.1993); Decker v. IHC Hosps., Inc., 982 F.2d 433, 436 (10th Cir.1992). Federal courts reach this conclusion by analyzing the plain language of the HCQIA and its legislative history. See Decker, 982 F.2d at 436. The statute provides that certain medical review bodies "shall not be liable in damages" provided the review meets certain criteria 42 U.S.C. § lllll1(a)(1). Federal courts conclude that this plain language confers only immunity from liability for damages. See Imperial, 37 F.3d at 1031; Decker, 982 F.2d at 436. Furthermore, courts note that Congress chose this language over language in a previous version of the bill, which stated, "shall not be subject to an action." See Manion, 986 F.2d at 1039; Decker, 982 F.2d at 436; see also Imperial, 37 F.3d at 1031 (noting in the legislative history an intentional change from very broad protection to protection only from damages). Federal courts therefore conclude that the HCQIA confers immunity only from damages lability. Imperial, 37 F.3d at 1031; Manion, 986 F.2d at 1039; Decker, 982 F.2d at 436.

123 We have interpreted HCQIA immunity as constituting a question of law for the court to decide. Nicholos, 27 P.3d at 838. Because the immunity is merely immunity from damages liability, however, a court may make this determination "whenever the record has been sufficiently developed"even after trial. Id. (citing Bryan v. James E. Holmes Reg'l Med. Ctr., 33 F.3d 1318, 1332 (11th Cir.1994)).

124 Because no federal court has addressed the immunity conferred by the ATSA, we first analyze the ATSA as federal courts would, by applying common principles of statutory construction. The ATSA provides that an air carrier who voluntarily discloses any suspicious transaction relevant to certain aircraft security statutes "shall not be civilly liable" to any person. 49 U.S.C. § 44941(a). Unlike the HCQIA, the ATSA immunity provision does not specifically refer to damages liability. We therefore cannot determine by reference to its plain language the type of immunity the ATSA confers. Moreover, the legislative history does not provide guidance as to the type of immunity intended by Congress. No prior versions of the bill exist, and Congress engaged in no discussion of the immunity standard.

4 25 Looking at federal statutory immunity and qualified immunity together, we analyze ATSA immunity according to the rationale underlying the distinction between immunity from suit and immunity from damages liability. Immunity from suit is a greater degree of protection than immunity from damages liability. Federal qualified immunity law includes this greater protection because it encourages public officials to undertake independent action on issues of public importance without fear of consequences. Mitchell, 472 U.S. at 525, 105 S.Ct. 2806. Although the ATSA grants immunity to private air carriers, it does so to encourage those carriers to take action on issues of public importance, such as avoiding air piracy and other threats to national security, without fear of consequences. The members of Congress who enacted the ATSA undoubtedly believe that "the safety and security of the civil air transportation system is critical to the security of the United States and its national defense." H.R.Rep. No. 107-296, at 53 (2001), 2002 U.8.0.C.A.N. 589, at 590 (Conf. Rep.). Also, air carriers are in an unparalleled position to provide useful threat information to the federal government because they directly interact with each passenger. Given the importance to our national security of the threat disclosure encouraged by the ATSA and the unique position of air carriers to obtain information about those threats, we must con-elude that Congress intended to confer upon air carriers the greatest possible degree of protection by enacting the immunity firovi— sion of the ATSA. The immunity conferred by the ATSA is therefore immunity from suit.

126 Because the protection afforded by such immunity is lost if the air carrier is forced to proceed to trial, we conclude that the trial court must decide immunity under the ATSA as a matter of law before trial. If a factual dispute arises as a part of this inquiry, the trial court may hold a hearing and receive any competent evidence related to the matter. See, eg., Trinity Broad. of Denver, Inc. v. City of Westminster, 848 P.2d 916, 924-25 (Colo.1993) (where a factual dispute arises as to the application of the Colorado Governmental Immunity Act, a trial court should conduct an evidentiary hearing to make necessary findings of fact relevant to the determination). The trial court therefore erred in this case by submitting the immunity question to the jury.

C. Determination of Immunity

127 Even where we have found an error, we do not reverse the trial court's judgment if the error is harmless. C.AR. 85(e); C.R.C.P. 61. Here, the error is harmless because Air Wisconsin is not entitled to immunity under the ATSA.

128 We have determined that immunity under the ATSA is a question of law to be determined by the trial court, We review questions of law de novo. Colo. Dep't of Revenue v. Garner, 66 P.3d 106, 109 (Colo. 2003). Where the determination of immunity turns upon a factual dispute, the trial court should ordinarily conduct a hearing on the matter and make appropriate factual findings. See Trinity Broad., 848 P.2d at 925. Here, however, we are in essentially the same position as the trial court when Air Wisconsin renewed its argument at the close of evidence that it was entitled to immunity under the ATSA. We therefore need not remand the case to the trial court for an evidentiary hearing because we have sufficient evidence before us to conclude as a matter of law that Air Wisconsin is not entitled to immunity.⁵

129 The ATSA provides that "[alny air carrier ... who makes a voluntary disclosure of any suspicious transaction relevant to a possible violation of law or regulation, relating to air piracy, a threat to aireraft or passenger safety, or terrorism" to certain officials including the TSA "shall not be civilly liable" under any law of any state. 49 U.S.C. § 44941(a). This provision, however, does not apply to "(1) any disclosure made with actual knowledge that the disclosure was false, inaccurate, or misleading; or (2) any disclosure made with reckless disregard as to the truth or falsity of that disclosure." § 44941(b).

$30 Assuming, without deciding, that Air Wisconsin's statements related to a "suspicious transaction" relevant to a threat to aircraft or passenger safety, we conclude based on the record evidence that the statements were made with reckless disregard as to their truth or falsity.⁶ Although federal cases provide little guidance on the meaning of "reckless disregard" under section 44941(b), cases discussing actual malice pursuant to New York Times Co. v. Sullivan, 876 U.S. 254, 280, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), are instructive because the actual malice standard also includes the concept of reckless disregard.

131 Under New York Times, in certain cireumstances a plaintiff must establish that a speaker published a statement with "actual malice," that is, "with knowledge that it was false or with reckless disregard of whether it was false or not." Id. To establish reckless disregard under this rule, the statements must have been made despite the speaker having a "high degree of awareness of ... probable falsity," or the speaker must have "entertained serious doubts as to the truth of his publication." St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 20 LEd.2d 262 (1968); see also Harte, Hanks Comme'ns, Inc. v. Connaughton, 491 U.S. 657, 667, 109 S.Ct. 2678, 105 LEd.2d 562 (1989). We believe that reckless disregard under the ATSA encompasses this same standard and we therefore apply it to this case.

132 First, the evidence establishes that Doyle told TSA: (1) that he believed Hoeper to be mentally unstable; (2) that Hoeper had been terminated earlier that day; and (3) that Hoeper may have been armed. Although the events at the training may have warranted a report to TSA, as discussed below, we conclude these three statements overstated those events to such a degree that they were made with reckless disregard of their truth or falsity.

133 Testimony from the record demonstrates that, when he made the statements, Doyle knew that Hoeper expected to be fired for failing the test and that Hoeper had become very angry with Schuerman at the testing facility. Based on these minimal facts alone, Doyle could not form an opinion as to whether Hoeper was mentally unstable at the time that Doyle contacted TSA. In fact, Doyle admitted at trial that, based on the information he had when he contacted TSA, he could not determine if Hoeper was mentally unstable. He therefore made this statement with a high degree of awareness of its probable falsity.

134 In addition, the evidence establishes that Doyle's statement that Hoeper had been terminated that day was false and that Doyle knew it to be false. Although Hoeper likely would be terminated, no termination had yet occurred.

1835 The record evidence also establishes reckless disregard as to Doyle's statement that Hoeper may have been armed. Hoeper could have brought his weapon on the airplane back to Denver only under two factual scenarios. First, Hoeper could have gone through the security checkpoint and signed an FFDO logbook. But if Hoeper had done so, Doyle would have no reason to report that Hoeper may have been armed because TSA would already know that he was armed. Second, Hoeper could have attempted to sneak his weapon through the security checkpoint. Doyle's statement that Hoeper may have been armed implies the assertion of some fact which led him to conclude that Hoeper was armed. But the only fact in Doyle's possession was Hoeper's status as an FFDO pilot and there is no indication in the record that Doyle believed an FFDO pilot would be more likely than any other passenger to sneak a firearm through security. The tenor of the statement therefore suggests much more than FFDO status; the statement implies, for example, that Doyle knew that someone had seen Hoeper with his weapon or that Hoeper had told someone he had his weapon. Doyle's statement that Hoeper may have been armed was therefore made with reckless disregard of its truth or falsity.

€386 Furthermore, the overall implication of Doyle's statements is that he believed that Hoeper was so unstable that he might pose a threat to the crew and passengers of the airplane on which he was scheduled to fly back to Denver. We find, based on our review of the record evidence, that Doyle's actions belie the claim that he believed Hoe-per to be mentally unstable. When Doyle first heard about the confrontation at the fourth test, he booked Hoeper on the flight back to Denver and had another employee drive Hoeper to the airport. If Doyle truly believed Hoeper posed a threat to employees of Air Wisconsin, he would not have directed an employee to drive Hoeper to the airport. Also, if Doyle believed that Hoeper posed a threat to the crew and passengers of the flight, he could have instructed Hoeper to return to his hotel room for the evening and booked him a flight only when his mental state improved. In addition, Hoeper spent over two hours at the airport waiting for his flight without incident before Doyle finally called TSA. We therefore conclude that, at a minimum, Doyle entertained serious doubts as to the truth of the statement's implication that Hoeper was so unstable that he might pose a threat to aircraft or passenger safety. We emphasize that our conclusion does not require Doyle to be sure that Hoeper actualty posed a threat. Rather, our review of the record evidence leads us to conclude that Doyle did not believe Hoeper to be so unstable that he might pose such a threat.

T 37 Moreover, Doyle did not document his prior confrontation with Hoeper, which occurred at the second failed test, until after the incident at issue here. Further, the evidence shows that Doyle initially documented Hoeper as a threat only to himself, but later changed his notes to include Hoeper as a threat to others. We draw from these facts the conclusion that Doyle thought he needed additional support to justify the statement that he believed Hoeper to be mentally unstable. We therefore hold that Doyle entertained serious doubt that Hoeper was mentally unstable.

138 We recognize that important policy considerations underlie the grant of immunity contained in the ATSA. Specifically, evidence in the record indicates that the TSA instructs airlines to report "suspicious transactions" even if they are not sure that a true threat exists. That is, the TSA is the proper authority to assess potential security threats in air travel and early, tentative information from airlines is vital to this task.

139 Our analysis of ATSA immunity in this case, however, does not chill airlines from reporting to the TSA what they actually know about potential security threats and leaving the assessment of each potential threat to TSA officials. In this case, for example, Air Wisconsin would likely be immune under the ATSA if Doyle had reported that Hoeper was an Air Wisconsin employee, that he knew he would be terminated soon, that he had acted irrationally at the training three hours earlier and "blew up" at test administrators, and that he was an FFDO pilot. Doyle's statements in this case, however, went well beyond these facts and we conclude that the statements were made with reckless disregard as to their truth or falsity. Air Wisconsin is therefore not entitled to immunity under the ATSA.

III Actual Malice

40 Having determined as a matter of law that Air Wisconsin is not entitled to immunity under the ATSA, we also must address the other issues upon which we granted cer-tiorari that Air Wisconsin contends require reversal of the jury's verdict. We granted certiorari to review the court of appeals' determination that a de novo review of the record demonstrated clear and convincing evidence of actual malice pursuant to New York Times, 376 U.S. at 280, 84 S.Ct. 710. We conclude that clear and convincing evidence supports a finding of actual malice.

{41 Because First Amendment constitutional protections apply, where a private plaintiff brings a defamation suit based on statements involving a matter of "public concern," the plaintiff must demonstrate actual malice to recover presumed or punitive damages. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 756, 105 S.Ct. 2939, 86. LEd.2d 598 (1985) (plurality opinion). The parties in this case dispute whether the statements involved a matter of public concern and whether the jury awarded presumed damages. We need not decide these questions, however, because we conclude that Hoeper sufficiently demonstrated actual malice.

142 As discussed above, a finding of actual malice is a finding that a speaker published a statement "with knowledge that it was false or with reckless disregard of whether it was false or not." New York Times, 376 U.S. at 280, 84 S.Ct. 710. To establish reckless disregard, the statements must have been made despite the speaker having a "high degree of awareness of ... probable falsity," or the speaker must have "entertained serious doubts as to the truth of his publication." St. Amant, 390 U.S. at 731, 88 S.Ct. 1323; see also Harte-Hanks, 491 U.S. at 667, 109 S.Ct. 2678.

[ 43 The question of whether the evidence in the record in a defamation case is sufficient to support a finding of actual malice is a question of law. Harte-Hanks, 491 U.S. at 685, 109 S.Ct. 2678. Although credibility determinations are reviewed under the clearly erroneous standard, a reviewing court must nonetheless "examine for [itself] the statements in issue and the cireumstances under which they were made to see ... whether they are of a character which the principles of the First Amendment ... protect." Id. at 689-90, 109 S.Ct. 2678 (quoting New York Times, 376 U.S. at 285, 84 S.Ct. 710). We must therefore undertake an independent review of the entire record to ensure that clear and convincing evidence supports a finding of actual malice. Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 514, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984); see New York Times, 376 U.S. at 286, 84 S.Ct. 710.

944 Under our de novo review of ATSA immunity above, we concluded that Air Wisconsin made statements to the TSA with reckless disregard of their truth or falsity. For the same reasons, we also conclude that our independent review of the record reveals clear and convincing evidence to support a finding that Air Wisconsin made the statements with reckless disregard as to their truth or falsity. Accordingly, we hold that no First Amendment protections bar Hoeper's recovery of presumed or punitive damages in this case.

IV. Opinion

45 Air Wisconsin contends that its statements were not actionable under the First Amendment because they were opinion. We disagree.

946 In al cases raising First Amendment issues, appellate courts must make an independent examination of the record to ensure that the judgment "does not constitute a forbidden intrusion on the field of free expression." Milkovich v. Lorain Journal Co., 497 U.S. 1, 17, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990) (quoting Bose, 466 U.S. at 499, 104 S.Ct. 1949). We therefore review de novo whether the statements in this case were protected as opinion.

147 The United States Supreme Court has disavowed the creation of an "artificial dichotomy between 'opinion' and fact." Id. at 19, 110 S.Ct. 2695. Because of First Amendment protections, however, statements on matters of public concern "must be provable as false" before liability may attach under state defamation law.⁷ Id. The parties dispute whether the statements in this case were on matters of public concern. Assuming, without deciding, that they were, we nevertheless conclude that the statements were provable as false.

148 Even a statement of bare opinion is actionable where it implies an assertion of objective fact. See id. at 21, 110 S.Ct. 2695; Raytheon Technical Servs. Co. v. Hyland, 273 Va. 292, 641 S.E.2d 84, 91 (2007). For example, if a speaker says, "In my opinion Jones is a liar," the speaker implies knowledge of facts which lead to the conclusion that Jones told an untruth. Milkovich, 497 U.S. at 18, 110 S.Ct. 2695. This statement is therefore actionable. Id. at 18-19, 110 S.Ct. 2695.

149 Also, where a speaker states the facts upon which he bases his opinion, but those facts are incorrect or his assessment of them is erroneous, the statement may still imply a false assertion of fact. Id.

150 In this case, intending to report a suspicious transaction relevant to a threat to aircraft or passenger safety, Doyle told TSA that Air Wisconsin officials "were concerned about [Hoeper's]l mental stability." Even if, as Air Wisconsin contends, this statement is one of opinion, it implies knowledge of facts which lead to the conclusion that Hoeper was so mentally unstable that he might constitute a threat to others on his flight. These facts are thus provable as false and the statement is actionable.

151 Also, Doyle told TSA that Hoe-per was an "[u)nstable pilot in FFDO [who] was terminated today." It appears that Doyle's statement that Hoeper was terminated that day was a fact upon which he based his conclusion that Hoeper was unstable. But that fact was incorrect because although Hoeper knew he would likely lose his job after failing the fourth test, he had not been terminated by the time Doyle called TSA. The statement thus implies a false assertion of fact.

152 We therefore conclude that the statements are provable as false and are thus not protected under the First Amendment as opinion.

V. Substantially True

158 We determined above that Air Wisconsin is not immune under the ATSA and therefore the trial court properly submitted the case to the jury. The jury was thus correctly charged with determining the elements of the defamation claim, including whether the statements were false. Air Wisconsin contends that its statements were substantially true and therefore we must reverse the jury's verdict in favor of Hoeper. We disagree.

154 Under Virginia law, the jury decides whether a statement was true or false, and we limit our review to whether sufficient evidence supports the jury's determination. Jordan v. Kollman, 269 Va. 569, 612 S.E.2d 203, 207 (2005).

155 The plaintiff has the burden to prove that the statement is false. Id. Speech that is "substantially true" will not support a defamation claim, and a plaintiff may not prove falsity based upon "[sllight inaccuracies of expression." Id.

T56 This defamation claim, however, does not rely upon "slight inaccuracies." Rather, the crux of the defamatory statements was that Hoeper was so mentally unstable that he might constitute a threat to aircraft and passenger safety. The record reveals sufficient evidence to support the jury's determination that Hoeper was not mentally unstable. Specifically, the record includes evidence that, although Hoeper lost his temper and "blew up" at one test administrator, Hoeper did not exhibit any other irrational behavior, and no other person who interacted with Hoeper after the confrontation believed Hoe-per to be mentally unstable or believed Hoe-per to pose a threat to others at the testing center or the airport. This evidence is substantial and sufficient to support the jury's determination and we therefore will not disturb its verdict.

VI. Conclusion

T 57 Immunity under the ATSA is a question of law for the trial court to decide before trial. If the issue turns upon disputed facts, then the court may hold an evidentiary hearing and make findings of fact prior to determining immunity. Although the trial court in this case erred by submitting the immunity question to the jury, the error is harmless because we conclude Air Wisconsin is not entitled to immunity. In addition, clear and convincing evidence supports a finding of actual malice, Air Wisconsin's statements were not protected as opinion, and the evidence is sufficient to support the jury's determination that the statements were false. Accordingly, we affirm the judgment of the court of appeals.

Justice EID concurs in part and dissents in part, and Justice COATS and Justice BOATRIGHT join in the concurrence in part and dissent in part.

1 . As discussed below, after Hoeper's fourth failed test, Doyle finally made notes of this confrontation, stating that Hoeper's actions after this second test caused Doyle to fear for his own safety and that of others at the testing facility.

2 . The parties agree that Air Wisconsin is legally responsible for Doyle's statements.

3 . We recognize that the common method for raising the issue of immunity from suit is to file a motion to dismiss pursuant to C.R.C.P. 12(b)(1). See Moody v. Ungerer, 885 P.2d 200, 201 (Colo.1994). In this case, it would have been appropriate for the trial court to have treated the summary judgment motion as a 12(b)(1) motion. Nonetheless, the fact that Air Wisconsin raised the contention in a motion for summary judgment allowed the trial court to decide the immunity question before the trial.

4 . We granted certiorari on the following issues:

1. Whether the court of appeals erred in finding that the trial court properly submitted the issue of Air Wisconsin's qualified immunity under the Aviation Transportation Security Act to the jury under Colorado law where federal courts generally require resolution of qualified immunity as a matter of law early in the proceedings.

Whether the court of appeals properly found that a de novo review of the record demonstrated clear and convincing evidence of actual malice.

._ Whether the court of appeals erred in finding that Air Wisconsin's statements were not substantially true and not non-actionable statements of opinion.

5 . In making this determination, we give no weight to the jury's finding of any fact.

6 . In our determination of immunity under the ATSA, we need not, and therefore do not, decide whether the statements were true or false. Rather, we conclude that Air Wisconsin made the statements with reckless disregard as to their truth or falsity. Because we conclude that Air Wisconsin is not immune under the ATSA, the trial court properly submitted the case to the jury. Accordingly, the jury was entitled to determine the elements of the defamation claim, including whether the statements were false. We review that determination below in section V.

7 . The Supreme Court left open the question of whether this analysis applies to statements made by non-media defendants. Milkovich, 497 U.S. at 19-20 n. 6, 110 S.Ct. 2695. Virginia, however, appears to apply this analysis to non-media defendants under its constitution. Raytheon Technical Servs. Co. v. Hyland, 273 Va. 292, 641 S.E.2d 84, 90-91 (2007). We therefore address the question even though Air Wisconsin is a non-media defendant.