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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 own...it's the least you could do.

Michael Rogers
blogACTIVE.com

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!

Anthony (mail):
In the particular case, there's an element missing: the knowlege that there actually is a male senator who engages in sex with other men who might vote for Alito. As Mr. Rogers of BlogActive has not named his target, we don't know if he's threatening blackmail or extortion. (I assume that threatening to make such a statement about a person when the statement is not true constitutes extortion.) He claims to be threatening blackmail, but that's not established.
2.1.2006 1:34am
Wintermute (www):
That link was in a post on my reader too. My profound thoughts are, first, which Senator is it and let's hear the proof? LOLOL The cheerleaders bathroom incident did not get reported in enough detail for me to judge the actions of the parties. Hahahaha. Second, I don't think Mr. Rogers (you can't make this stuff up) gives a damn, and Mr. Senator isn't going to the FBI. And hey, there may be more than one Senator who thinks the post was directed at him. This is too much fun.

Seriously, interesting thang. I give odds this one will never be adjudicated. If it were to be, we'd hear words like matter of public interest, not financial extortion, First Amendment stuff. Trying to think whether I'd try to strike homosexuals from his jury or try to pack them on.
2.1.2006 1:45am
mikem (mail):
Thanks for exposing this, even if just part of a discussion on what constitutes extortion. Could you explain how proof comes into it, even with a public figure?
In other words, is not a line crossed into extortion when someone threatens to expose something that they cannot prove? (With a photo, rather than "I heard he or she is gay")
Does the existence or, to the point, lack of proof have any role in distinguishing extortion from free speech? And if proof does play a role, are public figures treated differently?
Thanks.
2.1.2006 1:49am
anonymous22:
Cohen v. Cowles Media stands quite clearly for the idea that the First Amendment does not impose substantive restrictions on generally-applicable state contract law-- I see no reason why it would be different for state blackmail law. If a state wishes to enforce its blackmail law against people who threaten to expose through means ordinarily protected by the First Amendment, there is nothing under Cohen preventing them from doing so. After all, the newspaper in Cohen had an undoubted right to publish the source of its leak under the First Amendment-- but not under state law. So I think the legal complexities that Mr. Volokh raises, while quite interesting, should not complicate these matters in practice.
2.1.2006 2:04am
Eugene Volokh (www):
Anonymous22: Blackmail law is not a speech-neutral restriction like contract law; it on its face selects a certain form of speech for criminal punishment. Perhaps the speech is still unprotected, because it fits within the threats exception to the First Amendment, or some new exception. But there surely is a First Amendment issue, because this speech is being punished precisely because of its content (or, if you prefer, its communicative impact).

To further illustrate this, consider this situation: A newspaper starts running a series on politicians who fail to disclose supposed conflicts of interest. Politicians quickly grasp that they had better disclose the conflicts themselves, putting the best spin on them, rather than be "outed" this way. This in fact the newspaper's stated goal -- get politicians to reveal the conflicts themselves.

The newspaper is thus (and here I quote the D.C. blackmail statute), "with intent ... to cause another to do ... any act," implicitly "threaten[ing] [t]o ... publicize an asserted fact, whether true or false, tending to subject any person to hatred, contempt, or ridicule," or at least "[t]o impair the reputation of any person." No First Amendment problem here? If there is one, then this helps show that the First Amendment argument can't just be simply dismissed on the grounds that the blackmail law is somehow per se constitutional.
2.1.2006 2:30am
Zach (mail):
I'm a little confused by your answer. There are certainly many ways to accomplish results similar to blackmail, but this is an open letter, already published. Surely it can be fit into one of the above categories. Or is blackmail so nebulous that even with the blackmail letter in your possession, it's impossible to classify? Not every blackmail letter is pasted together from words cut out of magazines, after all.

Would this letter fit into a different category based on whether it has any factual basis or not? Angry blowhards on the internet pretending they know more than they do is hardly new, after all.
2.1.2006 2:39am
Jim T:
I believe Autumn Jackson claimed to BE Cosby's illegitimate child, not that she had his child.
2.1.2006 2:56am
Zach (mail):
When you think about it, publishing a blackmail letter as a blog entry seems an awfully indirect way of actually blackmailing somebody. How many Senators read blogactive.com on a regular basis? Plus, it would seem to diminish the value of any secret information you might have, since much of the value of keeping a secret is in keeping the secret that there _is_ a secret. Thirdly, it would maximize your own legal exposure in the event that you ever did decide to divulge the information, or alternatively hurt your own credibility if you decided not to divulge.
2.1.2006 3:11am
James Lindgren (mail):
Eugene,

As I note in a newer post, the 2d Circuit reheard the Jackson/Cosby case and affirmed her conviction because the error in the jury instruction was`harmless.

Jim Lindgren
2.1.2006 3:35am
Jeremy Pierce (mail) (www):
There is a moral issue that comes in once you combine the two issues. That issue is what we call coercion. It's not coercion to make an offer to do something positive for someone if they do something for you. If they turn you down, then you are no worse off. But if someone threatens you with a negative consequence if you don't do something for them, you are indeed worse off if you turn them down. That undermines the consent of your doing the action and thus puts it in a category with coercion. It's not coercion in the sense of being forced to do something with absolutely no choice, but it's like being forced to choose between a negative consequence and doing the unawanted action. That's indeed what happens when someone puts a gun to your head, so it's as much coercion as that.

As a non-lawyer, I can't comment on the legal issues, but that's the moral issue that makes combining 1 and 2 immoral while 1 alone or 2 alone is at least less immoral or even not immoral (depending on the circumstances, perhaps). These are the sorts of moral issues that laws often rely on.
2.1.2006 8:06am
nk (mail) (www):
Forgive me, but should we not, as the very first step be looking at the statute under which the government seeks to punish the "blackmailer"? If the statute seeks to protect an overwhelming governmental interest and is narrowly crafted to punish only conduct which threatens that interest, would it not be constitutional? Is the government's interest to protect Senators from voting or not voting based on the threat of revelations about their private lives a sufficiently overwhelming governmental interest?
2.1.2006 8:27am
DK:
On a political (not a legal) level, there are three curious questions of fact here:
1. Does this blogger actually think the Senator reads his blog? Or that an in-the-know aide will say "Senator, I think this blog post is addressed to you"?
2. Do we think this only applies to one Senator?
3. In fact, it may be that the blackmailing-blogger has no evidence and is just relying on the "10%-of-all-people-are-gay" rule that Eugene has debunked. In that case, the blogger would also be assuming that the percentage in the general population matches the percentage among Republican Senators.
2.1.2006 9:53am
JMW:
One of the interesting things about the Jackson case and this area of law is that the amount of money asked for is possibly outcome determinative. This, IMO, gives judges an almost common law-like ability to craft the rule, though the judge is actually interpreting a federal statute. This is problematical, but I'm not sure that there is a better way.

For example, if Autumn had said "Bill, the National Enquirer has offered me $50,000 for my story, if you can beat that offer (by some very modest amount) I'll turn down the NE and keep quiet," that'd likely be fine. But if Jackson lays out the same NE offer and then asks Bill for $50 million, that's blackmail and likely mail/wire fraud.

Where is the acceptable line? Is there a point where it is an inappropriate amount to ask for but not a criminal wrong?
2.1.2006 11:08am
Dick King:
I think one argument against legalizing blackmail is that it would create a market in peoples' secrets, in turn creating a rent seeking problem as one group of people would use resources to ferret out other peoples' secrets and their targets would use resources to resist the efforts of the first group.

After all, we prohibit theft even though we can't prove that the articles stolen are worth less to the thieves than to the victoms [and in fact we routinely reduce the punishment for efficient thefts, such as stealing water from a cabin in the desert, to restitution]. Still, we prohibit theft to reduce the effort society spends making locks and lockpicking tools to a tolerable level.

-dk
2.1.2006 11:46am
Nels (mail):
Why should the state protect peoples "secrets?" The blackmail paradox results from the fact that it shouldn't be illegal.
2.1.2006 12:14pm
SKlein:
Surely exposing hypocricy is not blackmail. Is there really a difference between: "vote against the marriage amendment or I will disclose your homosexual acts" and "I will expose acts of hypocrisy by legislators. I consider a homosexual who votes for the marriage amendment a hypocrite."
2.1.2006 12:43pm
Broncos:
I apologize for posting a completely tangential question (in the hope that Eugene might post on it), and I understand if it is deleted.

Does Cindy Sheehan have a 1st amendment claim for being arrested (not merely escorted out) for wearing a t-shirt (without profanity or obscenity) to the SOTU? Would the answer differ if it was Ted Kennedy who wore it?
2.1.2006 12:51pm
Eric Muller (www):
Cindy Sheehan is a big gal, but even so, if Ted Kennedy wore her t-shirt, he'd be subject to arrest for indecent exposure if nothing else.
2.1.2006 1:11pm
anonymous22:
The monetary aspect of blackmail law suggests to me that it does not raise serious constitutional problems, because blackmail involves an odious sort of commercial transaction as a primary element, and any advancement of public discourse as a side effect. Blackmail for legislative favoritism seems to me similar because legislation usually transfers wealth in some form, however much such discourse may in theory raise public consciousness.

If you want to expose something, go ahead and expose it-- this is First Amendment speech. The BlogActive blogger, in the interest of a marketplace of ideas, should go ahead and spill his information now rather than polluting the discourse by making the Senator his tool. Imposing your will on someone else directly, using speech as a weapon, presents very different issues. So I still think it does not raise significant First Amendment issues, in the same way that contract law ordinarily does not though many contracts involve substantial restrictions on speech. I may be wrong, because one could have made a similar case about libel law before Sullivan.
2.1.2006 1:22pm
JohnEMack (mail):
Extortion, where the extortionist would have the right to disclose a secret in the absence of a request for payment for nondisclosure, is one of a class of cases which could be called "things which are legal to do in one way and illegal to do in another." An important subset of this class consists of "agreements which may be supported by one sort of legal consideration but not another." Examples include prostitution (one can obtain sex by promising to marry someone but not by paying them), bribery (one may obtain a politician's vote on a bill by promising to campaign for them but not promising to pay them Money) or adoption (one may obtain an agreement to adopt a child by promising to bring the child up in a good environment, but not by paying the birth mother) or fish and game (one may give a friend a fish one has caught to hold a fish fry, but may not sell him the fish). Blackmail is a member of this subset. One can promise not to go to the police and report a threat if the threatener stops threatening him, but one cannot promise not to go to the police and report the threat if the threatener pays him. Close case: one can probably threaten to put nude photographs of someone on the internet if the photographee keeps calling her a slut on the web, but not if the photographee refuses to pay her cash.

So at least one of the bases for anti-blackmail laws is to regulate the sort of consideration which is permitted in private transactions. This seems to me unproblematical. There is a mindset inculcated into us in Contracts 101 that all consideration is created equal. The law will not look to the adequacy of consideration, so long as it is not grossly disproportionate. The law will not look to the nature of the consideration, so long as the consideation is not in itself illegal. The list goes on. But this analysis is unhelpful when we are dealing with the criminal issue of what sorts of private transactions need to be subject to public scrutiny or regulation, rather than the question of what sorts of promises should be enforced between idividuals inter se.
2.1.2006 1:29pm
Dick King:
Broncos, apparently the rule against wearing T shirts with a political point of view to the State of the Union Address is being enforced in a viewpoint-neutral manner.

-dk
2.1.2006 1:48pm
Broncos:
DK: True, but although it is viewpoint-neutral, it isn't subject-matter neutral (i.e. don't wear political speech to a political speech). I'm not sure how subject-matter selectivity plays into the analysis, if at all.
2.1.2006 1:56pm
Broncos:
As far as enforcement (and I'm not sure how this would comes up in Bivens action versus affirmative defense to a crime) they actually treated Beverly Young and Cindy Sheehan differently: while they were both ejected, only Sheehan was charged with a crime.
2.1.2006 2:12pm
Joshua:
mikem wrote:
Thanks for exposing this, even if just part of a discussion on what constitutes extortion. Could you explain how proof comes into it, even with a public figure?
In other words, is not a line crossed into extortion when someone threatens to expose something that they cannot prove? (With a photo, rather than "I heard he or she is gay")

With today's technology even a photo (or at least a digital one) can no longer be considered reliable evidence of anything. Ever hear the term "photoshopping"? (Here's a hint: It doesn't refer to buying pictures.) Sure, blackmail with photoshopped pictures can still be embarrassing to its target, but the upside is that as it becomes more common, blackmail with pictures of any kind is bound to lose most of its coercive power to the "boy-who-cried-wolf" syndrome.

DK wrote:
3. In fact, it may be that the blackmailing-blogger has no evidence and is just relying on the "10%-of-all-people-are-gay" rule that Eugene has debunked. In that case, the blogger would also be assuming that the percentage in the general population matches the percentage among Republican Senators.

Or, the blackmailer may have been busy photoshopping those senators into compromising positions with other men, poised to release them if they don't heed his threat.
2.1.2006 3:48pm
Pyrthroes (mail):
Comments in general fail to distinguish "blackmail" from "extortion". The former threatens to reveal a guilty secret, causing "intangible" harm unless a payoff is made. (The best literary example is by Saki [H.H. Munro], in his short story "Lady Packenham's Tiger.") The latter --extortion-- threatens "tangible" harm, as in classic "protection rackets": Pay us off or we will wreck your establishment, break your legs, kidnap your child.

Threatening a politician with political reprisals for "voting the wrong way" neither reveals a guilty secret nor promises to inflict tangible harm ("bodily" or any other form). On the other hand, disseminating fraudulent misrepresentations such as doctored photos or Dan Rather's wholly fabricated documents engages statutes relating to LIBEL and SLANDER. Both transcend "free speech" even as malicious gossip... obscenity, profanity, even blasphemy and sacrilege --examples are too numerous to mention-- enjoy whole protection in this country.

The letter cited is not BLACKMAIL. Nor is it EXTORTIONATE. However rubicund with jollity, neither is it LIBEL or SLANDER. So what is it?-- the answer is, an obnoxious rant from a disaffected contituent to his elected, openly partisan "representative" (sic), in the latter's public-officer capacity as one available to hear petitions and address constituent complaints. Too bad this particular constituent has lost it, but so what? The one thing Blackmail and Extortion require is TOTAL PRIVACY. Make anything public, and by definition no such threats are actionable (unless as public-safety measures may kick in).

So don't complicate stuff like this with waffle-fuss. If our poor Congressman, that blushing innocent, chooses to take offense-- well, let him. Maybe after the next election, he can go back to selling life insurance, maybe set up Joe's Used Car Service ("Honesty is Our Profession", get it?). Meantime, what a dolt.
2.1.2006 10:34pm
sh (mail):
I see that some people have already condemned this senator for voting against homosexual "marriage rights". What specifically makes this hypocrisy?
Typical assumption that if a=b, c=d.
2.2.2006 5:51am
tz (mail) (www):
I have a response to another branch of this discussion on my blog. Generally the information used by the blackmailer is nonpublic and has been illegally (or immorally) obtained.

If you think you do have a right to publish, I would suggest posting the DeCSS code used to decrypt DVDs which was reverse-engineered (so no tresspass or explicit violation of rights was done), but is considered a trade secret.

I think it would be interesting if the entire freedom blogosphere decided on one day to publish the code (for which 2600 was ordered by a court to censor its website) and see if they will take down every blog in the US and threaten those outside. But it will never happen. The only thing most free speech advocates will contribute in the cause of free speech is merely free (as in costless) speech (as in hot-air).

You are also perfectly free to purchase stolen merchandise, but it doesn't make it your property since there is no clean title. I can offer to steal things for you (or to do so implicitly - if you don't care where rare or cheap items come from). Is that a "service"?

I see blackmail in that light. Sexual Indiscretions are normally something in the private sphere - and rights are something respected in both the private and public sphere. If the police have a warrant to search your house for drugs, but don't find any, but instead find a stack of embarassing pornography (or whatever), can they include it in a police report accessible to anyone, maybe on the department's website? Would they have a free speech right, or is there another co-equal or even superior right to privacy?

In the other post, I also mention "rape shield laws". Are they proper or not? They were originally enacted to protect women victims from having their entire sexual history exposed in a courtroom - where it might have some bearing on the question since forced v.s. consentual is often at issue and the purpose of a trial is to expose the truth. So far it seems that the exposure in the media of such information (and we don't routinely sequester jurors in such trials) is uncommon - is this just some courtesy?

Or would a "rape-accusers-sexual-history.com" website be considered licit and proper - maybe with rewards for anyone who will tell their story under oath even if it wouldn't be admissible?
2.2.2006 11:49am
Jeff Barea (mail) (www):
The issues become even more legally complex since Rogers can reasonably claim to be an online journalist. Much of the case law on this issue has yet to be written.

More important to that post, however, is whether it is hypocritical to focus on outting gay politicos for anti-gay voting and posturing, then morphing that into assuming every self-described conservative is by definition outtable.

That was awkwardly phrased, I know. It is questionable that voting to make Alito a Senator is by itself an anti-gay action.

Yeah, some of you will throw out that he "might" rule against gay people.

I guess we can convince ourselves anything is right, can't we?

Personally, I think I will engage in a campaign to out gypsies. They don't dance in those elaborate costumes with clangy finger things anymore. We must be on alert.
2.4.2006 2:12pm