The Other McCain

"One should either write ruthlessly what one believes to be the truth, or else shut up." — Arthur Koestler

Blackmail: Paradoxical As It Is Raaaaacist

Posted on | August 23, 2012 | 13 Comments

by Smitty

Blogs written by lawyers tend to be high-quality and thoughtful. And the legal blogs, naturally pose thoughtful legal questions. But now and again you see one that really doesn’t seem so hard.

  1. I am generally perfectly free to publish embarrassing information about you — in fact, I generally have the constitutional right to do so. (The “disclosure of private facts” tort may constrain this in some instances, but the tort has been read quite narrowly, and much revelation of embarrassing secrets is not tortious and constitutionally protected.) Likewise, I am free to keep quiet about such information.
  2. I am generally perfectly free to ask you for money — or to ask you to do something else — in exchange for my doing something (here, keeping quiet) that I have no preexisting legal obligation to do. This distinguishes classic extortion, where I ask you for $10,000 not to burn down your store: Because I have a legal obligation not to burn down your store, it’s easy to explain why extortionate threats to burn down the store would be punishable. I will use “blackmail” to mean just threats to reveal information, not threats to commit illegal violence or property destruction.
  3. But if I ask you for money or a service in exchange for my not revealing embarrassing information about you, then that’s a crime. What’s the explanation? Legal scholars have debated this for decades, and to my knowledge have not come up with a perfectly satisfactory answer.

To be sure, the legal system often happily ignores conundrums such as this.

Two words: ‘seduction’, ‘rape’.

While it may be wildly immoral, there is nothing unethical about swindling people. That is, pushing external information at people in a non-coercive manner to separate the fool from the loot. Conversely, actual or implied violence used to coerce behavior (#2 above) is precisely the kind of Chicago-esque behavior that legitimate government seeks to minimize. Government is supposed to enhance liberty, and holding a monopoly on violence, including blackmail, is part of that whole social contract.

Taking the rest of Volokh’s quiz:

A. Look, if you are behaving at rest stops in ways that could prove embarrassing, recall Ancient Commenter Solomon:

He that walketh uprightly walketh surely: but he that perverteth his ways shall be known.

Now, in the age of George Zimmerman, merely keeping your nose clean may not be enough in all cases. But, for the most part, if your powder stays dry, you’ll do OK.

B. Again, Volokh posits that Person A has engaged in embarrassing Behavior B, and the Blackmailer C is using the information to alter behavior. Repent, A: your misery is based upon your clinging to B. Playing the ‘victim’ card no worky-worky unless you’re clean.

C. Indeed, exposing the behavior of a sloppy manufacturer is worthwhile, but the legal system is supposed to referee all that. So that it doesn’t veer into, you know, blackmail.

D.

. . .the principle that blackmail may be outlawed has not much expanded into areas that may at first seem to be analogous. “This is quite similar to blackmail, and should therefore be treated just like blackmail is” is an argument that courts are pretty cautious about endorsing, precisely because they realize that quite a few things that are quite similar to blackmail must remain legal, and may even be constitutionally protected.

We live in an economy predicated upon consumers remaining sheepish, and enjoying the sheer joy of getting shaved down. Consenting adults, and all that.

Category: Volokh Conspiracy

Comments

13 Responses to “Blackmail: Paradoxical As It Is Raaaaacist”

  1. egd
    August 23rd, 2012 @ 11:52 am

    I don’t think you get the problem. Or you’ve failed to explain your reaction to it.

    * It is legal for me to tell Sally’s boyfriend that I saw her leaving someone’s house last night.

    * It is also legal for me to ask Sally for money.
    * But I can’t threaten to tell Sally’s boyfriend about her dalliances unless she gives me money.
    This is not swindling, nor does it involve actual or threatened violence. Yet it is illegal.

  2. Quartermaster
    August 23rd, 2012 @ 12:17 pm

    “While it may be wildly immoral, there is nothing unethical about swindling people.”
    THis is not true under any canon of ethics I am aware of. It certainly is not ethical under scriptural dictates. If you do that, God will not have good things to say about it or to you.
    The idea that moral and ethical are separate/different is a postmodern construct.

  3. Charles
    August 23rd, 2012 @ 2:04 pm

    What we don’t like about blackmailers: either what they threaten to expose is a lie, in which case the blackmailer gets paid not to slander or libel, or it’s true, in which case the blackmailer gets unjustly enriched for information they should share with the public.

    On the difference between ethics and morals, ethics is the question of what you can reasonably expect to get away with. In that sense, a good swindle is not unethical.

  4. McGehee
    August 23rd, 2012 @ 3:00 pm

    The best answer to a would-be blackmailer is “Publish, and be damned.” I’m no angel, but I’ve always found that the people whose opinions matter to me will always be more forgiving of me than of someone who’s trying to hurt my reputation.

    To an extortionist, the best answer may cross into the realm of counter-aggression…

  5. smitty
    August 23rd, 2012 @ 3:19 pm

    Follow the link, where I explain the idea. This is me calling it like I see it, e.g. Social Security.

  6. smitty
    August 23rd, 2012 @ 3:23 pm

    Maybe I did misunderstand the point at Volokh, but using a threat to extort the money (like rape) seems unambiguously different from mooching some funds (like seduction).
    Sally sounds a bit of a tramp, in any case.

  7. Quartermaster
    August 23rd, 2012 @ 7:01 pm

    I read it. My answer is no. Your reasoning reminds me of Paul’s warning about Philosophy. Scripturally, your reasoning does not hold water. For a Christian there is no difference between morals and ethics.

  8. smitty
    August 24th, 2012 @ 8:12 am

    Fair enough. But please offer me an alternative system for explaining why some things, e.g. abortion, are legal, yet clearly immoral.
    I track your pointing to Paul, but that does not replace the need for some tool to manage the sacred/profane mismatch.
    Cheers,
    Chris

  9. Bob Belvedere
    August 24th, 2012 @ 8:21 am

    The Oxford English Dictionary…

    –Ethics

    plural noun [usually treated as plural] moral principles that govern a person’s or group’s behavior

    –Ethical

    adjective
    of or relating to moral principles or the branch of knowledge dealing with these: ethical issues in nursing ethical churchgoing men…morally good or correct.

  10. Bob Belvedere
    August 24th, 2012 @ 8:22 am

    These, by the way, are listed as the U.S. English definitions.

  11. egd
    August 24th, 2012 @ 9:25 am

    I agree that rape and seduction are different, but that is because in rape there is a threat of action that is otherwise unlawful.
    In blackmail the threatened activity isn’t unlawful. It is perfectly legal to tell, or not tell, others about Sally being a tramp (so long as it is true).
    That’s where the conundrum arises: a perfectly legal activity is rendered illegal because it is coupled to a transfer of money, or some other thing of value.

  12. egd
    August 24th, 2012 @ 9:25 am

    I agree that rape and seduction are different, but that is because in rape there is a threat of action that is otherwise unlawful.
    In blackmail the threatened activity isn’t unlawful. It is perfectly legal to tell, or not tell, others about Sally being a tramp (so long as it is true).
    That’s where the conundrum arises: a perfectly legal activity is rendered illegal because it is coupled to a transfer of money, or some other thing of value.

  13. smitty
    August 24th, 2012 @ 9:36 am

    Again, I explain the ‘conundrum’ as the difference between external and internal volition.
    The only effect of outlawing stupid acts would be to make us all criminals.
    Come to think of it, that might be useful. . . 🙂