Massachusetts Supreme Court rejects "compelled self-publication" defamation claim

In White v. Blue Cross and Blue Shield of Massachusetts,SJC-09157 (6/11/04) the Massachusetts Supreme Judicial Court granted the employer’s motion to dismiss a defamation claim brought by a terminated employee. The plaintiff conceded that the employer did not communicate the defamatory statements — that he was discharged “for allegedly disclosing confidential financial information” — to any third party.

The basis of the claim was that because the plaintiff refused “to lie,” about it, he was “compelled” to disclose to prospective employers the accusation that led to his termination.

The legal background to this issue is that defamation requires “publication” to a third party of a false and defamatory statement of fact. To falsely accuse someone to their face cannot give rise to a defamation claim; to spread the word amongst the persons friends and neighbors can.

Rejecting the claim, the court said:

Some courts . . . have recognized compelled self-publication as an exception to [the publication] requirement. . . Recognition of the doctrine of compelled self-publication defamation is far from unanimous. Some State courts of last resort have rejected it. On the other hand the highest courts of four States have adopted the doctrine [Iowa, Minn., Mo., N.C.] . . .

We recognize the conundrum faced by discharged employees who are required by prospective employers to explain the circumstances of their discharge.

But as the leading authority on defamation has explained, compelled self-publication defamation in the employment context is “troubling conceptually.” “It is the termination and the reasons for it, not the communication, about which the plaintiff is actually complaining . . . .”

Any harm arising from the employee’s discharge is more appropriately dealt with under principles of employment law, and not under the law of libel and slander. It is surely for that, among other reasons, that several courts have pointed to the doctrine’s unpredictable effect on at-will employment. . .
Recognition of the doctrine of compelled self-publication defamation brings with it the potential to stifle communication in the workplace. . . . The expenditure of time, resources, and money required to defend a claim of compelled self-defamation inevitably will induce self-censorship by employers. . . .

The consequent harm to employees will be significant. . . Beneath a dangling sword of defamation, employers are unlikely to provide employees with any reasons for employment decisions, including discharge, depriving employees of any opportunity to contest those decisions. . . .

There is surely nothing more harmful to a discharged employee who must tell a prospective employer, “I don’t know why I was fired. I was never given a reason.” A person in White’s position can at least counter a false accusation if he is informed of it. Read more

Legal researchers note: this case is a good source of citations from many jurisdictions on this subject.

This is a very tough issue. Discharged employees who feel wronged are always in a tough spot when seeking employment.

Many of course feel no great heartache about taking their chances with a lie. After all, if the accusation was false, declining to repeat it is actually refusing to continue the lie, not lying.

On the other hand, stating a completely fictitious reason is a lie, though perhaps here two wrongs make a right.

Perhaps the most ethical route is to make clear one’s disagreement with the reason given and seek to negotiate a resignation based upon “mutual differences” or the like.

Technically, even if the publication element is satisfied by self-publication, I’d argue there is no compelled defamation. The employee is not compelled to make a false statement. He or she can simply state: “I was terminated because the employer believed I improperly disclosed confidential financial information [absolutely true statement]. I totally disagree with the employer. May I tell you what really happened?”

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