We know that blackmail, the attempt to extort money from someone by threatening to reveal some secret about them if they don’t cough up, is illegal. It is viewed as a particularly despicable crime that usually preys on the weak and defenseless. It seems self-evident that blackmail is wrong and should be punishable by law. But this website brought to my attention something that I had not considered before and that is that it is not clear why blackmail should be illegal at all.
In US law, blackmail is defined as “Whoever, under a threat of informing, or as a consideration for not informing, against any violation of any law of the United States, demands or receives any money or other valuable thing, shall be fined under this title or imprisoned not more than one year, or both.”
This seems clear enough but there are two paradoxes that arise.
One is that it is not illegal to reveal a secret about somebody. People who gossip do it all the time and are not prosecuted. It is also not illegal to ‘demand money or other valuable thing’ from someone. So why is combining the two acts illegal, or as it has been sometimes phrased, “How can two rights make a wrong?”
A second paradox about blackmail is that if I know that someone knows a secret about me and I offer to pay that person to not reveal it, that contract amounts to bribery and not illegal. In other words, the illegality of the transaction depends on who initiates it.
The first paradox has been countered by saying that the ‘two rights make a wrong’ situation is not unique to blackmail and can be found elsewhere. For example, it is not illegal to have an alcohol level in one’s blood above a certain limit. Driving is also legal. But it is illegal to have the two in combination. Thus this aspect need not be an insurmountable paradox.
Walter Block, N. Stephan Kinsella and Hans-Hermann Hoppe writing in The Second Paradox of Blackmail (Business Ethics QuarterlyVol. 10, No. 3 (Jul., 2000), pp. 593-622) point to an actual case that illustrates the second paradox.
As a real-world example, consider the fate of Autumn Jackson, who was convicted of extortion for threatening to tell the tabloids that she was entertainer Bill Cosby’s out-of-wedlock child unless he paid her $40 million. Many commentators noted with irony that if Jackson had first filed a paternity suit and then settled the suit in exchange for money and silence-essentially, being bribed-no crime would have been committed.
The authors seem to approach the blackmail issue from a libertarian perspective and argue that the existence of these paradoxes suggest that there is no legal theory that justifies treating blackmail as a crime and thus that it should not be illegal, and that what the blackmailer is doing is selling a service (silence) that the blackmailee is buying that service and that as long as no physical aggression is involved, the state should not intervene in what is essentially a private transaction.
If it is true that blackmail should be legal, the paradoxes vanish and there is nothing to explain. It is legal (and we contend that it should be) to gossip about other people, even concerning their infidelities. It is not against the law to threaten to gossip, nor to demand or request money. If it is legal to bribe someone, to pay them for silence, it should not matter whether the blackmailer or briber (blackmailee) approaches the other to initiate the transaction. If it is licit to make a threat, it should not be a crime, either, to decline to carry it out, for a fee. In short, biackmail does not involve aggression, i.e. the initiation of force. It therefore does not violate individual rights, and the state is consequently not justified in using the force of the law to outlaw this non-aggressive action
One point against this is that this is not like a normal transaction between a buyer and seller. In this case the blackmailer is selling a service that the blackmailee cannot get elsewhere and is thus acting as a monopoly. For example, it is usually legal for merchants to set whatever prices they want for their goods and the need to be competitive ensures that prices are not exorbitant. But there are laws against the price gouging that sometimes takes place after a natural disaster when a merchant in sole possession of an essential commodity like bottled water charges an exorbitant amount for it just because the buyer has no option. In that case the state can and often does intervene.
The odd thing about blackmail is that it is often practiced in everyday life with no controversy because the stakes involved are rather small. Someone who says to another “I won’t tell so-and-so about this if you do me this favor” is committing blackmail. It also often takes a tacit form where one is forced to treat someone well out of fear that that person may embarrass you by revealing some damaging information. The boss who drinks on the job who gives her secretary a raise because the latter has hinted the possibility of revealing that fact, is being tacitly blackmailed.
Sometimes it is quite open, especially in politics. Take this recent story where David Duke threatens the Republican party leadership that if they strip GOP whip Steve Scalise of his position because he once spoke to Duke’s white supremacist organization, then he will release the names of all the other politicians who have had contacts with him. That sounds like blackmail to me. And yet, that kind of quid pro quo threat is routine in politics.
In the end, I don’t think that the libertarian philosophy of the authors of the above article will prevail. The legal system does not work like the laws of science and is not always required to be entirely consistent or logical. Sometimes it decides what is right and wrong on somewhat ad hoc grounds and then finds ways to justify it. Blackmail may be one such case.
It’s probably another one of those laws that’s on the books to protect the powerful -- who are disproportionately more likely to be approached with that kind of quid pro quo arrangement because they have more to lose. There would be little point for a wealthy person to blackmail someone poor, but plenty of reasons for a poor person to blackmail someone rich.
Notice how the authors of that study define individual rights only as the right not to be physically assaulted. By this particular libertarian definition of rights, sexual harassment should be legal (though physical sexual assault may still be banned), verbal harassment and abuse should be legal, and defamation should be legal. Revenge porn could not be banned, for example, unless the image(s) were stolen. This is very, very far from a mainstream position.
I don’t see any mention of the highlighted phrase in your commentary. It appears to me that in the legal definition cited, blackmail only applies when the secret being extorted is the commission of a crime.
The US legal definitions are complicated by the state/federal distinction.
In federal law, blackmail is extortion where the secret is a federal crime, and extortion (whether blackmail or some other form) is only directly covered where the extortioner is a federal official or if federal interests are otherwise touched on. The most important example of which is if the extortioner communicates by means of interstate or foreign commerce or via the Postal Service:
(and a similar clause in 876 applies to postal mail)
Receiving the proceeds of extortion is also a federal crime.
Otherwise, as far as I know it’s a matter of state law.
Reginald,
That is a good point but while that is the technical definition of blackmail, operationally the use of the term has become greatly expanded by the states and the courts, as can be seen here to say more broadly “Blackmail is the crime of threatening to reveal embarrassing, disgraceful or damaging information about a person to the public, family, spouse or associates unless money is paid to purchase silence.”
You can also see section 876 of the same code that says “Whoever, with intent to extort from any person any money or other thing of value, knowingly so deposits or causes to be delivered, as aforesaid, any communication, with or without a name or designating mark subscribed thereto, addressed to any other person and containing any threat to injure the property or reputation of the addressee or of another, or the reputation of a deceased person, or any threat to accuse the addressee or any other person of a crime, shall be fined under this title or imprisoned not more than two years, or both.”
I don’t really see the paradox. Robbery is illegal when you threaten to shoot someone unless they hand over their wallet, and it isn’t necessary to actually fire the gun (or even have a loaded/real gun). Blackmail is just a non-physically-violent form of robbery; you are threatening to do something that the other person cannot reasonably be expected to brush off.
There’s also the practical matter that blackmail seems like the sort of thing that should be punished because it causes such harm to the blackmailed, either monetary or socially. In fact, this makes me wonder exactly how “libertarian” the idea that blackmail shouldn’t be illegal really is, since libertarians are usually strongly against being forced to hand over money under any circumstance other than a consensual contract.
Is the argument that blackmail technically isn’t illegal the way the laws are written, or that it currently is but shouldn’t be?
“Demands or receives any money or other valuable thing”
Apparently, justice is considered a valuable thing because saying to someone, “Turn yourself in or I will” can be considered blackmail. And you can be prosecuted for it (see: wikileaks).
How about a law penalizing anyone who fails to disclose evidence of wrong-doing by another?
*ducks ‘n’ runs*
How about a law penalizing anyone who fails to disclose evidence of wrong-doing by another?
Isn’t that “conspiracy”?
No. It’s not even “accessory-after-the-fact”. In the past it may have been “misprision of felony”, but this has been widely abolished, and even in US federal law (where it still technically exists) it has been interpreted to require some active concealment rather than simple failure to report.
Chris J,
The authors of the article are arguing the latter.
RE #9: You could give it a catchy name, such as Obstruction of Justice.
Polygamy or Polyandry is illegal for good reason which I presume you know, which I don’t have to put out here. But, aren’t there some people who are genuinely in love and that is considered polygamy ? Why shouldn’t we legalize polygamy ?
We don’t, there may be really very few people who are in love, it might be considered by the rest as polygamy, the society doesn’t accept polygamy is because it not about those minority people are really in love or not, but to prevent exploitation of women. There are swingers there, so are we gonna put swingers as equal status as monogamy in the society ?
It’s not about whether it really true or not, whether it is really love or not, stop the exploitation, so we as a society have to deny the right to very few, unlike gay marriage, polygamy affects rest of the women in the population, so as a society we are ok with it even though there are some genuinely few people are in polygamy for love.
May be society one day change its mind, if it feels letting those polygamist won’t affect the rest or have any exploitation of women, then polygamy, it might one day be legalized, the point is, we don’t deal with absolute here, there is nothing called absolute, if you insist there is one, then only you will end up seeing paradox.
So, how is this relevant here ? Well, by now you should be able to connect the dots. we don’t accept the revenge porn, we are slowly making laws against revenge porn, technology is different than 20-30 years before. We do certainly deny some rights to reveal information against others. It’s not absolute as you assume, even though we revere free speech, we do still have defamation laws, whether it works or not is different case.
I don’t accept your paradox argument, laws cannot be absolute, that’s why we have courts to delineate, interpret, and apply, otherwise we could just write a algorithm to punish people , say if you prove X did this and by Y law it is a crime, so X is punishable by law. No, we don’t, we interpret laws all the times, the free speech you adore is the interpretation of 1st amendment over 2 century, the despicable gun laws are the interpretation of 2nd amendment over 2 century and the culture it is attached to it, if it is not for the despicable gun culture and rule of plutocracy and corporations, it would be interpreted differently by now.
That’s why unless we don’t get rid of this 2nd amendment I don’t see any hope for humanity in US.
If you think there is a big paradox in blackmail law, there are paradox in every laws, laws are not absolute, they shouldn’t be absolute, if so we can write off all the laws, and humanity doesn’t have to write any more laws for billion years to come.
Sorry to offend, but your argument is rather naive.
@athiest blog: “Polygamy or Polyandry is illegal for good reason which I presume you know, which I don’t have to put out here. ”
Actually, no, I don’t know what that reason you are referring to is. Is it the exploitation of women? Because I absolutely don’t understand that argument.
I agree with Beth, I don’t know what the good reasons are for making them illegal. Can you please elaborate?
I also noticed the apparent stipulation that a law must be broken to be considered blackmail. Moreover, it’s unclear whether that broken law is the thing under threat of disclosure or whether the threat of disclosure is itself the thing during which a law must be broken. The first source you cite isn’t part of the US code and the second one stipulates that a note must have been delivered. It seems that going up to someone and saying “I know you’re having an affair and unless you pay me $1 million I’ll tell your wife” is legal under federal law (though state laws may well be different).