Again With the Paradox?

Reader Charles Chapman points to the following blog entry, posted Monday, and asks why it isn't criminally punishable blackmail:

Mr. Senator:

Tomorrow you will be faced with a vote that may have the longest aftereffects of any other you have cast in your Senate career.

Tomorrow you will decide if your political position is worth more than doing what is right for others like you. For others like you, Mr. Senator, who engage in oral sex with other men. (Although, Mr. Senator, most of us don't do in the bathrooms of Union Station!) Your fake marriage, by the way, will NOT protect you from the truth being told on this blog.

How does this blog decide who to report on? It's simple. We report on hypocrites. In this case, hypocrites who vote against the gay and lesbian community while engaging in gay sex themselves [footnote: While votes on many matters are considered, votes "FOR" either the Alito nomination and the Federal Marriage Amendment are enough to qualify legislators for reporting on this site.].

When you cast that vote, Mr. Senator, represent your's the least you could do.

Michael Rogers

Oy, what a question. You thought it was an easy issue of criminal law, or for that matter free speech law — but it's only one of the thorniest conceptual questions in all of jurisprudence. And it's a recurring one; I had occasion to blog about it in June 2002, in connection with the abortion-cams issue. Let me rerun my explanation, though with the extra note that our very own Jim Lindgren has written extensively about the subject.

Here's the puzzle, or, as it's sometimes called, the Blackmail Paradox:

1. I am generally perfectly free to publish embarrassing information about you — in fact, I generally have the constitutional right to do so. Likewise, I am free to keep quiet about it.

2. I am generally perfectly free to ask you for money 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.) I am also free to ask you to perform some service in exchange for my doing something that I have no preexisting legal obligation to do. I am even free to ask you to cast a vote in exchange for my doing at least some things (though not all things) that I have no preexisting legal obligation to do: For instance, a pro-choice newspaper editor may generally say that he will endorse a politican for reelection if the politician votes against an abortion restriction.

3. But if I ask you for money or a service in exchange for my not revealing embarrassing information about you (and recall that I have no preexisting legal obligation to keep quiet), 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.

Now as I mentioned, the legal system often happily ignores conundrums such as this. Blackmail is a crime, and that's that (and incidentally I agree on pragmatic grounds that it should be a crime, though I myself don't have a good answer to the puzzle).

But sometimes this does raise some significant practical difficulties. Here are a few examples:

A. Say that during the Clinton-Lewinsky scandal, a publisher tells a Congressman "If you vote to impeach Clinton, I will publish information about your own sexual indiscretion." That may well be blackmail (many blackmail laws cover attempts to get people to do things as well as just attempts to get money).

But if the publisher starts a series of articles exposing the sexual indiscretions of Congressmen who have stated their intention to vote for impeachment, that's perfectly legal journalism — even though the implication is clearly "If you vote against impeachment, we won't run this article about you." Likewise if the publisher asks the public for information that might prove to be fodder for such articles. (During the scandal, Larry Flynt's behavior was fairly similar to that in this hypothetical.)

B. My saying "If you don't pay me $X, I'll tell people about your sexual indiscretions" is generally clearly blackmail.

But what if I tell you "I'm about to sue you for a certain behavior, unless you pay me $X to settle the claim," and it's clear that if I do sue you, your sexual indiscretions will come out, either because they're the basis of the suit or because they are somehow relevant to it and will emerge in discovery? This is common and generally legal litigation behavior, subject only to very loose constraints.

C. Some things that clearly fit the "If you don't pay me $X, I'll tell people about what you did" mold should pretty clearly be legal. In the words of one court: "For example, the purchaser of an allegedly defective product may threaten to complain to a consumer protection agency or to bring suit in a public forum if the manufacturer does not make good on its warranty. Or she may threaten to enlist the aid of a television 'on-the-side-of-the-consumer' program. Or a private club may threaten to post a list of the club members who have not yet paid their dues."

The uniting thread seems to be that it's OK to use the threat of publicity to get what is rightfully owed you — but the boundaries of this principle end up being themselves quite uncertain. Factoid: Autumn Jackson, who allegedly tried to blackmail Bill Cosby several years ago by threatening to reveal her being his out-of-wedlock child, had her conviction reversed because the judge didn't instruct the jury about this principle, but the court of appeals later reversed the reversal, because it concluded that the error was harmless, since there was no evidence that Autumn Jackson was just asking for what was rightfully owed her; the above quote is from that case, United States v. Jackson (2nd Cir. 1999).

Finally — as a result of this theoretical uncertainty, and the practical uncertainty that it sometimes breeds — 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.

Yet what does this mean to Mr. Rogers of BlogActive? Does he have a constitutional right to engage in the speech that he has engaged in — which in turn threatens to engage in more speech — notwithstanding the criminal prohibition on blackmail? My brain hurts.

UPDATE: Thanks to commenter Jim T for pointing out an error in how I characterized Autumn Jackson (though fortunately it was an error that didn't affect the substantive question); I've corrected the error above.

FURTHER UPDATE: Thanks also to Jim Lindgren, who pointed out that the initial reversal of the Autumn Jackson conviction was itself reversed. I had read the first Jackson opinion and it stuck in my head; but I didn't notice the second one, and when I cited the opinion, I foolishly didn't check whether it had been reversed. D'oh!