§ 6.4.5.4 COMPELLED SELF-PUBLICATION.

• Jurisdiction: Arizona

§ 6.4.5.4 Compelled Self-Publication. On occasion, an employer tells the employee the basis for the termination, but communicates that basis no further. If the ex-employee honestly reports what was said was the reason for the termination, that person may still remain unemployed. In response to such a circumstance, many courts have recognized a tort of compelled "self-publication," where the terminated employee is compelled to tell a prospective employer the reasons for the employee's termination.¹³² Other courts have refused to accept the doctrine.¹³³

One basis for the adoption of the self-publication tort is that it is foreseeable that the plaintiff-employee would have to disclose the defamatory statement to a third person.¹³⁴

Although Arizona courts have not yet addressed the compelled self-publication doctrine, most federal judges in Arizona have refused to adopt the doctrine.¹³⁵

As of this writing, courts in the following jurisdictions have declined to adopt any concept of self-publication when presented with the issue. In some of these jurisdictions, a federal court declined to find that the applicable state court would adopt such a principle: Alabama;¹³⁶ Florida;¹³⁷ Illinois;¹³⁸ Indiana;¹³⁹ Maryland;¹⁴⁰ New York;¹⁴¹ Oklahoma;¹⁴² Pennsylvania;¹⁴³ Puerto Rico;¹⁴⁴ Tennessee;¹⁴⁵ South Carolina;¹⁴⁶ Washington;¹⁴⁷ West Virginia;¹⁴⁸ Connecticut;¹⁴⁹ Hawaii;¹⁵⁰ Illinois;¹⁵¹ Massachusetts;¹⁵² and Virginia.¹⁵³

Courts from the following jurisdictions have directly adopted the self-publication doctrine, or in the case of federal courts, have generally found that the applicable state court would do so: Arizona;¹⁵⁴ Arkansas;¹⁵⁵ California;¹⁵⁶ Colorado;¹⁵⁷ Connecticut;¹⁵⁸ Georgia;¹⁵⁹ Iowa;¹⁶⁰ Kansas;¹⁶¹ Maine;¹⁶² Michigan;¹⁶³ Minnesota;¹⁶⁴ Missouri;¹⁶⁵ Ohio;¹⁶⁶ Oregon;¹⁶⁷ Texas;¹⁶⁸ Vermont;¹⁶⁹ and Wisconsin.¹⁷⁰

The supreme courts of Maine and North Dakota have chosen to sidestep the issue without taking any position, by affirming dismissals on other grounds.¹⁷¹

The federal courts are split on whether a self-publication by a terminated federal employee gives that employee due process rights by implying a taking of a liberty interest.¹⁷²

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Notes:

^[132]Elmore v. Shell Oil Co.,733 F. Supp. 544 (E.D.N.Y. 1988) (applying New York law); McKinney v. Santa Clara Cty.,168 Cal. Rptr. 89 (App. 1980); Churchey v. Adolph Coors Co.,759 P.2d 1336 (Colo. 1988); Lewis v. Equitable Life Assurance Soc'y of the United States, 389 N.W. 2d 876 (Minn. 1986); Neighbors v. Kirksville Coll. of Osteopathic Med.,694 S.W.2d 822 (Mo. App. 1985); First State Bank v. Ake,606 S.W.2d 696 (Tex. App. 1980).

^[133]See, e.g., Vargas v. Royal Bank of Canada, 604 F. Supp. 1036, 1044 (D.P.R. 1985) (plaintiff could not "assert a defamation claim based on his own publication").

^[134]See Restatement (Second) of Torts § 578 and discussion in McKinney, 168 Cal. Rptr. 89, 93 (liability imposed for foreseeable repetitions of defamatory statements); see also W. Page Keaton et al. Prosser and Keaton on Torts § 113 (5th ed. 1984) and Anno., Publication of Allegedly Defamatory Matter by Plaintiff ("Self-Publication") as Sufficient to Support Defamation Action, 62 A.L.R.4th 616 (1988).

^[135]Spratt v. N. Auto. Corp.,958 F. Supp. 456, 465 (D. Ariz. 1996); Pendell v. Michaels Stores, Inc., CIV 06-2132-PHX-MHM, 2007 WL 2725223, at *3 (D. Ariz. Sept. 17, 2007); Marks v. Citizens Communications Co., CIV00-2333PHX-SMM, 2003 WL 25712884, at *12 (D. Ariz. July 21, 2003); cf. Ashway v. Ferrellgas, Inc., CIV 88-1806 PHX CAM, 1989 WL 384851, at *5 (D. Ariz. Apr. 20, 1989), aff'd in part, rev'd in part,945 F.2d 408 (9th Cir. 1991) (recognized doctrine).

^[136]Gore v. Health Tex, Inc.,567 So. 2d 1307, 1308 (Ala. 1990) (without discussion, court indicated it was "not prepared" to adopt the principle in Alabama).

^[137]Valencia v. Citibank Int'l,728 So. 2d 330 (Fla. Dist. App. 1999).

^[138]Layne v. Builders Plumbing Supply Co.,569 N.E.2d 1104, 1110-11 (Ill. App. 1991) (refusing to accept self-publication as sufficient basis for defamation cause of action); and Olivieri v. Rodriguez, 122 F.3d 406, 408 (7th Cir. 1997) (apparently applying Illinois law and calling the doctrine "largely discredited.").

^[139]Sarratore v. Longview Van Corp.,666 F. Supp. 1257, 1264 (N.D. Ind. 1987) (refusing to create self-publication cause of action because Indiana case law lacked "judicial landmarks" that clearly point to recognition).

^[140]De Leon v. Saint Joseph Hosp., Inc.,871 F.2d 1229, 1237 (4th Cir. 1989) (arguing that Maryland does not recognize self-publication actions).

^[141]Tischman v. ITT/Sheraton Corp.,882 F. Supp. 1358 (S.D.N.Y. 1995); Wieder v. Chem. Bank,202 A.D.2d 168, 608 N.Y.S.2d 195, 196 (1st Dep't 1994); But cf.Elmore v. Shell Oil Co.,733 F. Supp. 544 (E.D.N.Y. 1988) (adopting the principle).

^[142]Starr v. Pearle Vision,54 F.3d 1548 (10th Cir. 1995) (court declined to assume that Oklahoma would recognize such a cause of action).

^[143]Pilkington v. CGU Ins. Co., Inc., 143 Lab. Cas. (CCH) P59,244 (E.D. Pa. February 9, 2001); Yetter v. Ward Trucking Corp.,401 Pa. Super. 467, 585 A.2d 1022, 1024 (Pa. Super. 1990) (based on preexisting Pennsylvania law that there is an absolute privilege for an employer to publish defamatory matter in job references under many circumstances).

^[144]Algarin v. Fed. Express Corp., 56 F. Supp. 2d 172 (D. P.R. 1999).

^[145]Sullivan v. Baptist Mem'l Hosp., 995 S.W.2d 569, 571 (Tenn. 1999).

^[146]Carson v. S....