White v. Blue Cross & Blue Shield of Massachusetts, Inc.

Cowin, J.

(dissenting). The court, citing public policy concerns, states that permitting compelled self-defamation to meet the “publication” element of defamation would be “ill advised.” Ante at 68. In my view, it is at least as ill advised to allow employers, by their own reckless actions or omissions, to put employees in situations such as the one confronted by the plaintiff. The defendant here, by allegedly reckless indifference, caused foreseeable harm to the plaintiff. The plaintiff claims that the defendant had no basis for believing the accusation that was made against him, and that the defendant refused to make any effort to resolve the matter by investigation or otherwise prior to terminating Ms employment. The court expresses numer*73pus policy concerns, some wholly legitimate, about protecting employers and workplace communication. But in weighing the public policy interests in such a situation, where there is an absence of legislative direction on the subject, we should be at least as concerned with protecting the victim as we are with protecting the wrongdoer. Contrary to the court’s conclusion today, the doctrine of compelled self-defamation is not the innovation it has been characterized to be, does not threaten at-will employment, and is not incompatible with the other principles of employment law cited. Therefore, I respectfully dissent.

If we accept as true the allegations in the complaint, see Eyal v. Helen Broadcasting Corp., 411 Mass. 426, 429 (1991), the defendant received a false accusation from a customer, explicitly refused to investigate that accusation, repeated it to the plaintiff as the reason for firing him, and then suggested that the plaintiff lie about that reason during subsequent job interviews. The plaintiff then was faced with three equally untenable alternatives while interviewing with prospective employers. He could follow the defendant’s advice and lie, he could refuse to answer questions regarding his termination, or he could answer those questions openly, thereby republishing a defamatory statement. The first option, lying, is not an acceptable alternative to republication, see Carey v. Mt. Desert Island Hosp., 910 F. Supp. 7, 12 n.3 (D. Me. 1995), and the plaintiff should not be penalized for refusing to do so. The other two options, in the real-world context of the modem job market, are not practical because they will simply result in the plaintiff’s failing to find subsequent employment.1

As the court acknowledges, the plaintiff’s claim makes out a prima facie case for defamation, except for the publication element. See Ravnikar v. Bogojavlensky, 438 Mass. 627, 629-630 (2003). For at least fifty years, courts facing similar fact *74patterns have allowed compelled self-defamation to satisfy this element, based on the simple and unremarkable tort law concept of foreseeability. See, e.g., Raymond v. International Business Machs. Corp., 954 F. Supp. 744, 755-756 (D. Vt. 1997); Carey v. Mt. Desert Island Hosp., supra at 11; Chrzanowski v. Lichtman, 884 F. Supp. 751, 755 (W.D.N.Y. 1995); Odom v. Fairbanks Memorial Hosp., 999 P.2d 123, 130-131 (Alaska 2000); McKinney v. County of Santa Clara, 110 Cal. App. 3d 787, 797 (1980); Colonial Stores Inc. v. Barrett, 73 Ga. App. 839, 840-841 (1946); Theisen v. Covenant Med. Ctr., Inc., 636 N.W.2d 74, 83 (Iowa 2001); Grist v. Upjohn Co., 16 Mich. App. 452, 484 (1969); Lewis v. Equitable Life Assur. Soc’y, 389 N.W.2d 876, 886-888 (Minn. 1986); Overcast v. Billings Mut. Ins. Co., 11 S.W.3d 62, 70 (Mo. 2000); Chasewood Constr. Co. v. Rico, 696 S.W.2d 439, 444 (Tex. Ct. App. 1985). See also Rohan v. Networks Presentation, LLC, 175 F. Supp. 2d 806, 816 (D. Md. 2001); Booth v. Electronic Data Sys. Corp., 799 F. Supp. 1086, 1090-1092 (D. Kan. 1992); Hedgepeth v. Coleman, 183 N.C. 309, 313-314 (1922). Where circumstances are such that the defendant could have foreseen that the plaintiff would be forced to repeat a defamatory statement, these courts have concluded that the publication requirement of defamation may be met by the plaintiff’s repetition of that statement, because of “the strong causal link between the actions of the [defendant] and the damage caused by the republication.” McKinney v. County of Santa Clara, supra at 797.

Although the Restatement endorses self-defamation only where the plaintiff is “without an awareness” of the republished statement’s defamatory nature, Restatement (Second) of Torts § 577 comment m (1977), a careful reading of that section reveals that it is compatible with the concept of compelled self-defamation as presented in this case.2 Comment m is primarily concerned not with employment situations, but with letters sent *75by a defendant to a plaintiff, which the plaintiff then shows to a third person. The comment is accompanied by illustrative situations. In these, a letter is received by a blind plaintiff, or is written in a language the plaintiff cannot read, so that the plaintiff is “unaware” of the defamatory nature of the letter at the time he inevitably shows it to a third person who is able to read it or translate its contents. In these cases, the Restatement declares that the defamatory utterance is “published.” Id. Although these hypothetical plaintiffs are characterized as being “unaware,” one could just as easily describe them as being “compelled” to show the letters to a third person.3 See also W.L. Prosser & W.P. Keeton, Torts § 113 at 802 (5th ed. 1984) (defendant can be liable for plaintiff’s republication of defamatory matter where “because of the plaintiff’s blindness or immaturity, or because of some necessity [the plaintiff] was under to communicate the matter to others, it was reasonably to be anticipated that he would do so”).

While this court has not previously considered the narrow question whether compelled self-defamation satisfies the “publication” element of defamation, the concept of holding the original utterer of a defamatory statement liable for foreseeable republications is established here. See Bander v. Metropolitan Life Ins. Co., 313 Mass 337, 347-348 (1943) (defamatory contents of sealed letter addressed to plaintiff could be considered published where defendant had “good reason to believe” letter would be opened and read by plaintiff’s manager); Rumney v. Worthley, 186 Mass. 144, 145 (1904) (defamatory letter addressed to plaintiff could constitute publication if defendant “had good reason to believe” that plaintiff’s *76daughter would open and read letter in plaintiff’s absence). The Bander and Rumney cases were cited with approval by McKinney v. County of Santa Clara, supra at 796-797, a frequently cited case on the subject of compelled self-defamation.4 Further, long before these cases were decided, this court stated that a defamation defendant was responsible for the “natural and probable publicity” subsequent to his original publication. Miller v. Butler, 6 Cush. 71, 74 (1850).5

As to the court’s public policy rationale, permitting compelled self-defamation to meet the “publication” requirement of defamation is not incompatible with at-will employment. An employer is entitled to terminate an employee for any reason, or no reason, Cort v. Bristol-Myers Co., 385 Mass. 300, 305 (1982), provided public policy is not violated thereby. See Smith-Pfeffer v. Superintendent of the Walter E. Fernald State Sch., 404 Mass. 145, 149-150 (1989). As the court points out, even giving a false reason does not violate public policy. Ante at 70. See Mello v. Stop & Shop Cos., 402 Mass. 555, 557 (1988), citing Cort v. Bristol-Myers Co., supra at 306. But a false reason and a defamatory reason are not the same thing. Nothing in the doctrine of at-will employment requires that an employer, in the context of discharging an employee, be permitted to speak knowingly or recklessly in a manner that defames the employee. Van-Go Transp. Co. v. New York City Bd. of Educ., 971 F. Supp. 90, 103 (E.D.N.Y. 1997), quoting Wright v. Guarinello, 165 Misc. 2d 720, 725 (N.Y. Sup. Ct. 1995) (“A *77license to fixe at will does not carry with it permission to poison with immunity”).6 Permitting compelled self-defamation to satisfy the publication element of defamation will not curtail the employer’s at-will rights. Vindication of the policies underlying employers’ rights to terminate at-will employees may require that employers be given almost unlimited discretion to discharge. However, it does not require that employers also be permitted to defame the discharged employee with impunity. Both the employer and the employee have rights, and our system of justice has not become so effete that it cannot identify and enforce the rights of each class.

Moreover, the employer’s conditional privilege is not abrogated by, nor is it inconsistent with, recognition of the concept of compelled self-defamation. The two concepts manage to coexist in other jurisdictions. See, e.g., Herberholt v. dePaul Community Health Ctr., 625 S.W.2d 617, 624-625 (Mo. 1982) (accepting doctrine of compelled self-defamation [Overcast v. Billings Mut. Ins. Co., supra at 70] but dismissing plaintiff’s claim because of employer’s privilege). See Van-Go Transp. Co. v. New York City Bd. of Educ., supra at 105-106 (same). See also Booth v. Electronic Data Sys. Corp., supra at 1091 (same). In Massachusetts, an employer has a “conditional privilege to publish defamatory material if the publication is reasonably necessary to the protection or furtherance of a legitimate business interest.” Bratt v. International Business Machs. Corp., 392 Mass. 508, 512-513 (1984). This privilege is abused, and thus lost, when the employer utters a defamatory statement knowing it is not true, or with reckless disregard as to its truth. Id. at 514.7 Thus, in order to recover for defamation against an employer, an employee must show that the statement *78at issue was made with at least reckless disregard as to its truth. This differs from the ordinary defamation standard in which a private individual may recover by showing that the publisher was merely negligent in the publication of the falsehood. Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 858 (1975). Thus there is established a compromise between the employer’s legitimate interest in open communication regarding its employees and the employee’s interest in protecting his or her reputation. Bratt v. International Business Machs. Corp., supra at 513, citing Restatement (Second) of Torts § 594 comment e, at 265 (1977).

If Blue Cross had spoken directly with a prospective employer of White instead of to White himself, the employer’s conditional privilege would have applied unless Blue Cross spoke falsely intentionally or recklessly. Bratt v. International Business Machs. Corp., supra. See Burns v. Barry, 353 Mass. 115, 118-119 (1967). The present case is no different. If Blue Cross were only negligent when it initially uttered the statement in question, White would have no claim. However, if White can show that Blue Cross had knowledge of the statement’s falsity or acted with reckless disregard as to its truth, then Blue Cross would have abused and lost its privilege. Whether a conditional privilege is abused is a question for the jury, id. at 514, and thus in the present case the allegation of abuse ought to be left for another day. The court, however, prevents any further consideration of the matter by concluding that the mere existence of the employer’s conditional privilege prevents White from bringing his claim in the first place. By the court’s logic, the existence of any privilege would “run counter” to any defamation claim, whether it involves self-publication or otherwise. Ante at 69.

The court warns of the dangers of a culture of “self-censorship,” but a culture of unremedied libel and slander is no more desirable from a public policy standpoint, and no more consistent with the promotion of open communication. Ante at 70. The court can think of “nothing more harmful” to a *79hypothetical job seeker than having to announce, “I don’t know why I was fired.” Ante at 70. The court should be more imaginative. I am extremely skeptical that statements such as, “I was fired for revealing confidential information,” or even, “I was accused of revealing confidential information,” are somehow more likely to lead to new employment.

The court sympathetically announces that the plaintiff has remedies against the alleged originator of the defamatory remark, i.e., Winchester Hospital or its representative. However, in many self-defamation cases the defamatory statement originates with the employer, and a claim against some other party will not be available. See, e.g., McKinney v. County of Santa Clara, 110 Cal. App. 3d 787, 792 (1980); Colonial Stores Inc. v. Barrett, 73 Ga. App. 839, 840-841 (1946); Lewis v. Equitable Life Assur. Soc’y, 389 N.W.2d 876, 881 (Minn. (1986). The court understandably is concerned also that a plaintiff may distort an original oral statement while repeating it. Where the defamatory statement is expressed orally, the possibility of distortion is present, but this is simply a factual matter for resolution by the fact finder. These considerations do not persuade me that allowing a former employee to meet the “publication” element of defamation with his own forced repetition of the defendant’s statements is unwarranted.

This case presents an issue ultimately best left to the Legislature. However, in my view, compelled self-defamation is a doctrine grounded in well-recognized tort principles. It is a natural extension of Massachusetts case law, and there is no urgent or overwhelming public policy rationale counselling against it. Therefore, in the absence of legislative direction explicitly barring compelled self-defamation from satisfying the publication element in defamation claims, the plaintiff should be allowed to proceed with this action.

It has been suggested that the plaintiff simply can tell the truth and then dispute the defamatory remark by explaining its context. The idea that such an explanation would not often fatally harm the plaintiff’s job prospects, especially in a competitive employment market, is wholly contrary to common sense and misses the point. If a defamatory statement concerning the plaintiff is false, he should not be burdened with the task of explaining its context for the remainder of his professional life.

The court characterizes my citation to the Restatement as seeking to dispense with the “long-established” requirement that the defendant must publish the defamatory statement to a third party. Ante at 67 n.6. On the contrary, I cite Restatement (Second) of Torts § 577 comment m ,(1977) to demonstrate that this requirement is paired with a “long-established” exception, whereby the publication requirement of defamation may be met by the actions of the plaintiff. This exception, as the court recognizes, includes sitúa*75tians in which the plaintiff “must disclose [a defamatory statement] to a third party,” and therefore it is reasonable to consider it in the context of this case. Ante at 67 n.6.

The Restatement also contemplates that the original utterer of a defamatory statement may be responsible for foreseeable republications. See Restatement (Second) of Torts, supra at § 577 comment k (publication element of defamation can be met where “a reasonable person would recognize that an act creates an unreasonable risk that the defamatory matter will be communicated to a third person”). See also id. at § 576 (“The publication of a libel or slander is a legal cause of any special harm resulting from its repetition by a third person if . . . the repetition was reasonably to be expected”).

McKinney v. County of Santa Clara, 110 Cal. App. 3d 787, 796 (1980), also cited Wilcox v. Moon, 64 Vt. 450 (1892) (where sealed letter sent by defendant to plaintiff, publication element met if defendant knows plaintiff will need to have letter read by another). The Wilcox case was recently cited by Raymond v. International Business Machs. Corp., 954 F. Supp. 744, 755 (D. Vt. 1997), as support for the proposition that “publication may be established if the defendant knows that of necessity the plaintiff must disclose the statement.”

The court goes to great lengths to explain the facts of Bander v. Metropolitan Life Ins. Co., 313 Mass. 337 (1943); Rumney v. Worthley, 186 Mass. 144 (1904); and Miller v. Butler, 6 Cush. 71 (1850), and to assert that these cases did not involve compelled self-defamation. Ante at 71 n. 11.1 do not suggest that they did. I cite these cases merely to point out that one who utters a defamatory statement may be liable for the republication of that statement by another if such republication was foreseeable, and to demonstrate that concepts akin to compelled self-defamation are not unknown to Massachusetts jurisprudence.

In the context of employment, a defamatory remark uttered with knowledge of its falsity or with reckless disregard as to its truth is to be distinguished from a defamatory remark uttered with mere negligence, which is protected by the employer’s conditional privilege. See discussion infra. See Bratt v. International Business Machs. Corp., 392 Mass. 508, 513-515 (1984).

The court cites Bratt v. International Business Machs. Corp., supra at 509, 515 n.11, for the proposition that the employer’s conditional privilege is lost “only when the employer recklessly makes ‘unnecessary, unreasonable or excessive’ publications.” Ante at 69. That is a misstatement of the law. That case merely noted that “unnecessary, unreasonable or excessive publication” by itself, without proof of scienter, did not constitute an abuse of privilege. *78Bratt v. International Business Machs., supra at 515 & n.11. Reckless disregard for the truth, whether accompanied by “unnecessary, unreasonable or excessive” publication or not, constitutes an abuse of privilege.