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The Paradox of Blackmail and BlogActive's Threatening Letter.--

Eugene raises the paradox of blackmail and the legality of a threatening open letter posted on the BlogActive website.

1. The Cosby Extortion Case. As Eugene notes, someone with an underlying legal claim may threaten to expose it to reach a reasonable settlement. Yet if the amount sought is so substantially out of line with the injury and the threat to embarrass is a big part of the threat, then a criminal charge of extortion can be established.

The chief example here is the Cosby case, where Autumn Jackson, who may have been Cosby's daughter, threatened exposure unless he paid her $40 million. Despite having some possible claim for support as a child, she was convicted because of the excessiveness of her claims and the threats of exposure. Eugene notes that the 2d Circuit Court of Appeals (initially) reversed the conviction of Autumn Jackson. But on rehearing, the 2d Circuit reversed itself and reinstated Jackson's conviction because the error in her jury instructions was harmless. Thus, she was found guilty and her conviction was affirmed.

Here are some excerpts on the law from the 2d Circuit's Jackson/Cosby opinions:

[From 180 F.3d at 81:] The evidence at trial was plainly sufficient to support verdicts of guilty had the jury been properly instructed. Even if Jackson were Cosby's child, a rational jury could find that her demand, given her age (22) and the amount ($ 40 million), did not reflect a plausible claim for support. The evidence supported an inference that Jackson had no right to demand money from Cosby pursuant to a contract or promise and no right to insist that she be included in his will. The jury thus could have found that her threat to disclose was the only leverage she had to extract money from him; that if she sold her story to The Globe, she would lose that leverage; and that if Cosby had capitulated and paid her in order to prevent disclosure, there was no logical guarantee that there would not be a similar threat and demand in the future. Thus, had the jury been instructed that the "with intent to extort" element meant that defendants could be found guilty of violating § 875(d) only if Jackson's threat to disclose was issued in connection with a claim for money to which she was not entitled or which had no nexus to a plausible claim of right, the jury could permissibly have returned verdicts of guilty on that count.

[From 196 F.3d at 387:] We reasoned, however, that not all threats to reputation accompanied by demands of money are inherently wrongful, see id. at 67, and we inferred that Congress meant § 875(d) to criminalize only such threats as are wrongful, see id. at 67-70. We concluded that the court's instruction "erroneously allowed the jury to find defendants guilty of violating that section on the premise that any and every threat to reputation in order to obtain money is inherently wrongful," id. at 71-72, and that the court should instead have informed the jury of the wrongfulness element by instructing that § 875(d) prohibits obtaining money or a thing of value from another by use of threats to reputation only if the defendant has no plausible claim of right to the money demanded or if there is no nexus between the threat and the defendant's claim, see 180 F.3d at 71.

Further, in State v. Harrington, 260 A.2d 692 (Vt. 1969), a lawyer for the wife in a fault-based divorce action was convicted of attempting to extort a settlement by threatening to expose a relevant part of the case, the husband's extramarital affair. The lawyer was also disbarred. The threat to go to the newspapers was explicit and the amount seems to have been excessive.

2. Is the threatening letter posted on the BlogActive website a crime? First, one must look to federal or state statutes to determine their scope. Some blackmail or extortion statutes, such as the federal Hobbs Act, punish only threats seeking property. And the US Supreme Court took a narrow view of property in Scheidler v. NOW II (2003). [DISCLOSURE: I consulted and worked on the brief for NOW in Scheidler v. NOW I, which NOW won in the Supreme Court, and I mooted the NOW attorneys in NOW II, which NOW lost. The case is currently before the Supreme Court yet a third time in Scheidler v. NOW III.] Some state statutes punish both obtaining property and compelling action under the same extortion statute. Other state statutes divide the traditional crime of extortion into one covering property and another covering compelling action (often called criminal coercion).

So this threatening letter would probably not be extortion under the Hobbs Act because it seeks to compel action (voting), not to obtain property. There may be other federal statutes it might violate; I don't know.

But the posted letter may well be extortion or criminal coercion if committed in many, perhaps most, states. Whether it is a crime turns primarily on the closeness of the nexus between the threat (exposure) and the action sought (voting against Alito).

Typically, in order to avoid a violation of an extortion statute, the threat must be very closely linked to the underlying claim. Clearly asking for much more than you are owed (such as in the Jackson/Cosby case) under a threat of exposing embarrassing behavior was enough to lead to Autumn Jackson's conviction.

Similarly, some statutes recognize a defense of seeking only restitution or seeking only to right a wrong in circumstances related to the underlying claim. It would seem to be this defense that the threatener at BlogActive would want to try to claim. It appears that in Mike Rogers's mind, a male Senator having sex with another man in the bathroom of Union Station is directly related to that Senator's vote confirming Justice Alito. Although there isn't enough case law here to give a definitive answer, I suspect that a court would not find the nexus between voting for Alito and gay sex in a public bathroom to be close enough to allow Rogers to use that defense. The nexus in the Jackson/Cosby case and in the Harrington case would seem to have been closer, and both those defendants nonetheless had their convictions affirmed.

The kinds of threats that would seem to be covered by the defense (and thus not extortion) are such threats as:

  1. Pay me back the money you stole or I'll go to the police.

  2. Pay your employer back the money you stole from the company or I'll tell your employer of your theft.

  3. Stop stealing bicycles or I'll report you to the police.

  4. Stop having sex with men in public bathrooms or I'll expose that you are having sex with men in public bathrooms.

Note that the last two examples involve compelling action, but the nexus between the threat of exposure and the action sought is very close.

UPDATE: As to the jurisdictional location of the threat, I consciously avoided that issue. Two commenters below quote the DC blackmail statute, which is not unusual except that it still uses the term "blackmail," which is less common today than using "extortion," "theft," or "coercion." It definitely covers compelling action.

Washington D.C. Criminal Code section 22-3252 provides:

(a) A person commits the offense of blackmail, if, with intent to obtain property of another or to cause another to do or refrain from doing any act, that person threatens:

(1) To accuse any person of a crime;

(2) To expose a secret or publicize an asserted fact, whether true or false, tending to subject any person to hatred, contempt, or ridicule; or

(3) To impair the reputation of any person, including a deceased person.

(b) Any person convicted of blackmail shall be fined not more than $1,000 or imprisoned for not more than 5 years, or both.

(1981 Ed., § 22-3852; Dec. 1, 1982, D.C. Law 4-164, § 152, 29 DCR 3976.) Washington D.C. Criminal Code section 22-3252

Note that the DC statute does not have an explicit claim of right defense. That doesn't mean there is isn't such a defense (there must be to make sense of the scope of the law), though I seem to recall that one state struck down its extortion statute because of an inadequately broad claim of right defense (on a facial overbreadth challenge).

Some have raised keeping the victim's identity secret. In the US, usually no effort is made to protect the identity of blackmail victims (unlike some rape victims). Such efforts would probably be futile for someone as prominent as a US Senator.

Related Posts (on one page):

  1. The Paradox of Blackmail and BlogActive's Threatening Letter.--
  2. Again With the Paradox?
Wintermute (www):
Nexus is such a wiggle word....
2.1.2006 3:49am
Public_Defender:
But there was no public purpose in either the Jackson/Cosby or Harrington cases. Here, the blogger believes it is hypocritical to support a presumptively anti-gay Supreme Court justice when you hide your own gay activities. That doesn't seem like much of a stretch.

It's scummy and immoral, but it seems well within rough and tumble of national politics.

Also, raising the threat of prosecution makes it look like conservatives are just trying to criminalize dissent.
2.1.2006 7:01am
private defender:
The real paradox is that unless he acts on the threat to expose the guy, there can be no crime because there is not yet a victim. This message was not transmitted to a particular individual, it was sent to everyone. So even if someone comes forward to file a complaint (an unlikely scenario), Rogers can just say it was all a bluff, that he had no idea the complainant was gay, and he had no purpose to extort a particular individual.
2.1.2006 8:43am
nk (mail) (www):
I would recommend that the Unites States Senate as a body petition the U.S. Attorney to investigate and prosecute. An indentified victim may be necessary as Private Defender suggests because of the narrowness requirement of laws that restrict speech. But, as a general rule, in criminal law a specific victim is not necessary. What, for example, if an extortionist threatens to poison Tylenol capsules (actual case)? In American law, as opposed to most European law, criminal law vindicates the peace and dignity of the state and not the rights of the victim.
2.1.2006 9:07am
Duncan Frissell (mail):
Where did the 'crime' occur? Is Mike Rogers a DC resident? It would appear so. Does DC have a separate blackmail staute? Unlikely. So it would have to use the Hobbs Act which probably doesn't apply. The Senator is not a DC resident. Home state laws apply? What if Senator doesn't read blogs? Was there communication?

Sounds like a great Bar Exam question. Too late for July '06 exams. Watch out for Feb '07.
2.1.2006 9:07am
D.C. Code § 22-3252:
D.C. Code § 22-3252:

(a) A person commits the offense of blackmail, if, with intent to obtain property of another or to cause another to do or refrain from doing any act, that person threatens:

(1) To accuse any person of a crime;

(2) To expose a secret or publicize an asserted fact, whether true or false, tending to subject any person to hatred, contempt, or ridicule; or

(3) To impair the reputation of any person, including a deceased person.

(b) Any person convicted of blackmail shall be fined not more than $ 1,000 or imprisoned for not more than 5 years, or both.
2.1.2006 10:28am
Charles Chapman (mail) (www):
Does DC have a separate blackmail staute? Unlikely.
As indicated in Eugene's original post, DC does have a separate blackmail statute. Washington D.C. Criminal Code section 22-3252 provides:
(a) A person commits the offense of blackmail, if, with intent to obtain property of another or to cause another to do or refrain from doing any act, that person threatens:

(1) To accuse any person of a crime;

(2) To expose a secret or publicize an asserted fact, whether true or false, tending to subject any person to hatred, contempt, or ridicule; or

(3) To impair the reputation of any person, including a deceased person.

(b) Any person convicted of blackmail shall be fined not more than $1,000 or imprisoned for not more than 5 years, or both.

(1981 Ed., § 22-3852; Dec. 1, 1982, D.C. Law 4-164, § 152, 29 DCR 3976.)
Washington D.C. Criminal Code section 22-3252 (emphasis added)
2.1.2006 10:29am
Michael Friedman (mail):
First off, as a matter of public policy, this kind of behavior should obviously be prohibited. It is not beneficial to the country to have our representatives voting based on coercion of any kind other than the standard "Do what I want or I'll try to persuade lots of people not to vote for you."

Secondly, given that a promise not to reveal this person's sexual activities would obviously have significant value to that person can this be treated as attempted bribery rather than or as well as blackmail?
2.1.2006 11:04am
Michael Friedman (mail):
PS. Presumably the reason for making blackmail illegal is the likely impact on public order of allowing it - a man being threatened with the destruction of his life (for example by revealing a gay affair) unless he pays out a significant portion of his net worth may choose instead to kill the person who is threatening him.

It is in society's interest to reduce the frequency of such situations.

This suggests a framework around which to structure blackmail law.

By that model I don't think Cosby's daughter should qualify.
2.1.2006 11:11am
amn (mail):
This case can't go anywhere without someone admitting they are the gay senator who had sex in Grand Central Station or blogActive outing the senator. Until then it is simply satire.
2.1.2006 11:13am
Michael Friedman (mail):
If the senator gets outed that should qualify.

Even if he doesn't, it's not satire. If you think it's satire, what is it satirizing?

The person making the threat could say he was lying. Not sure what the impact woudl be if he did.
2.1.2006 11:35am
Dave Hardy (mail) (www):
Dunno about local law, but AZ law prohibits seeking "anything of value" by means of a threat to expose an embarassing personal fact. Attorneys are well advised to avoid mentioning "if we have to sue, it'll result in bad publicity for you" as a settlement tactic.

Might be an interesting question as to whether a vote is a thing of value. I'd suggest yes. Perhaps its sale is illegal, but so are drugs, and I think a threat to expose someone unless they turned over an ounce of cocaine would qualify as extortion nonetheless.
2.1.2006 11:36am
amn (mail):
MF: If "Jerry Falwell talks about his first time", of Hustler Magazine, Inc. v. Falwell fame, can be considered satire, I think this would qualify as well. "Jerry Falwell had sex with his mom" seems pretty close to "a Republican voting for Alito had sex with other men in train station bathrooms."
2.1.2006 11:46am
Some Guy (mail):
I wouldn't hold my breath for this jackalope to be naming any names. I mean, come on...gay sex in the bathroom at Union Station?! Anyone here ever been in the bathroom at Union Station? It's always full, there are always bums hanging around, and the cops are standing in the lobby and making rounds constantly. Not to mention that the place is FILTHY AND SMELLS LIKE URINE.

Notice there are no actual details in the "extortionist's" letter. He's making random threats and hoping that he can throw a scare into someone.
2.1.2006 11:56am
TL:
I also think this is a ruse devoid of 602-type knowledge. It is unlikely that any senators are currently sweating.

As to the Hustler v. Falwell comparision above, you would still need to take this item in context. The absurdity of the subject matter of the "outing" is not the only apposite characteristic. If that blog puports to be a more serious discussion than one might expect from Hustler (I find the blog with the "threat" distasteful and don't intend to read it further). . . then this analysis would be less than a good fit.
2.1.2006 12:03pm
TL:
PS- Falwell dealt with libel and IIED, so is quite separate from the issues presently raised. There was never any underlying "threat" there.
2.1.2006 12:06pm
Some Other Guy:
I don't see where any crime has been committed. All we have seen is the "extortion" note with the sordid allegation and the tortured logic. That would be like saying you're going to run a stop sign is the same as running the stop sign. I glance a blogActive from time to time and he does this kind of thing a lot...to lure EYES to his site. Guess what, it works.

I agree with Some Guy, though. The restroom at U. Station is an unlikely trysting spot too public, too close to the capitol, too much law enforcement...Rogers is probably making it up or exaggerating.
2.1.2006 12:23pm
DSEK:
AMD Did I miss it, or was there any indication that BlogActive's letter was directed at a *Republican*?
2.1.2006 12:35pm
Jamesaust (mail):
Perhaps I'm reading the statute too closely but this scenario seems to have several unique issues.

First, the letter grants the intent requirement of the statute § 22-3252(a). Absent this, evidence of intent to change a vote rather than merely expose hyprocracy would be required.

Second, § 22-3252(a)(2) - "expose a secret" would not seem to be the operative restriction. Assuming the sole asserted fact is sex with other men in a public place (and not sex in general including a public place), there is no "secret" per se by virture of its disclose to the public at-large, or whomever was present in the public place (evidently, at least one person). Instead, the operative restriction would seem to be the asserted fact.

Third, there is a question of what standard to judge whether an asserted fact subjects 'a person' to hatred, etc. Is this particular to the person exposed, to an average person, or a typical person who would be having sex with another man in a public place? Surely, there is no shortage of persons in DC who have done so and would not be subject to any particular hatred, etc. if it were so revealed (no doubt, persons who even freely admit such facts).

Finally, is the resulting hatred, etc. the result of the fact itself or the hyprocracy exposed by the fact? If the later, surely this is in opposition to the last few centuries of press freedom, which wallows in exposing hypocracy - some of which the public ignores and fails to energize hatred, etc.
2.1.2006 12:44pm
byb (mail):
Blackmail?

What an absurd argument.

Sounds like someone in the black helicopter crowd somehow got into law school
2.1.2006 12:56pm
t d e (mail):
My pick would be Santorum.

I mean isn' his chief of staff or something gay?

I'd bet a few hours of meth and dancing to Gloria Gaynor would be all that is necessary to turn him out.
2.1.2006 1:01pm
honeybadger (mail):
Whatever happened to the right to privacy? Either you believe in rights for people you despise or you don't believe in the idea of "rights" at all.

By the way, this is precisely the logic behind why the Defense Department used to deny gays and kinky folk security clearance: their secret lives put them at risk of this sort of coercion. How ironic that this self-righteous ninny is proving the point for his enemies.

Did he ever stop to ponder how many people in this town ended their illustrious careers as blackmailers and scandalmongers as compost in Rock Creek Park? To assume anyone in DC would be weak enough to cave to this unsubstantiated nonsense is dangerously naive.

Or: No snitchin'.
2.1.2006 1:01pm
Doc Rampage (mail) (www):
It amazes me that almost everyone commenting on this seems primarily concerned with normal state laws about extortion and coercion. What about improperly interfering with the duties of a Unites States senator? If you offer a senator money to vote a certain way, isn't that a federal crime? (That's a real question, not a rhetorical one; I'm not a lawyer). And if so, then wouldn't offering services for a vote also be a crime, even if the service is offered is to keep your mouth shut?

I just can't believe that it isn't a federal crime to attempt to blackmail a United States senator into voting a certain way.
2.1.2006 3:09pm
Jason Fliegel (mail):
Honeybagger, the right to privacy only restricts the government's ability to invade my privacy, not a private citizen's right to invade my privacy.

The idea that you can do X and it's perfectly legal, but as soon as you ask for money it becomes illegal is a bit counterintuitive, but it shows up places other than blackmail. Bribery law and prostitution law are the two examples that spring to mind; there may be others.
2.1.2006 3:09pm
Thief (mail) (www):
Just on a historical side note, this is exactly the kind of thing J. Edgar Hoover was known to do: collect dirt on every important person in Washington DC. Which is why he got to be FBI-director-for-life. (Or, for a fictional example, see the movie L.A. Confidential, which shows a real estate developer blackmailing an L.A. city councilman by threatening to release photographs of him with a prostitute in exchange for vote on approving what would become the Santa Monica Expressway.)

I hope that Mr. Rogers reveals the identity of his target. And then I hope that target hits back with a libel suit so big it has its own area code. This sort of thing is poison to the democratic process; legislation should be judged on its own merits, not those of the lawmakers.
2.1.2006 3:21pm
t d e (mail):

then wouldn't offering services for a vote also be a crime

Senators trade votes and favors routinely amongst themselves.
2.1.2006 3:53pm
Doc Rampage (mail) (www):
I don't think Senators trading votes is the same as blackmailing or bribing someone. All legislation is a result of discussion and compromise and as long as the only things that come into the discussions are the votes of both sides then I don't know if we want any court trying to decide what is legit and what isn't.

It is different when extraneous matters come in. If Senator A offers to hire Senator B's nephew as a staffer in exchange for voting a certain way, that should be illegal. And if Joe Blow offers to not fink on Senator B in exchange for a vote, then that should also be illegal.

Since I'm intimidated about discussing matters of law at a sight frequented by actual lawyers and law scholars, let me reiterate that I'm not a lawyer and I'm talking about what I think _should_ be the case, not what I think is the case. I think it is a danger to democracy to allow Senators to be blackmailed in this way.
2.1.2006 4:36pm
TM Lutas (mail) (www):
Assuming that this guy is just blowing smoke, doesn't the GOP and the US Senate have a cause of action for false accusation?
2.1.2006 4:46pm
Dave Hardy (mail) (www):
Assuming that this guy is just blowing smoke, doesn't the GOP and the US Senate have a cause of action for false accusation?

It's the group defamation problem. Unless he says that *every single* Senator has gay sex in Union Station, he hasn't specifically slandered an individual, nor the entire group.
2.1.2006 8:42pm
David Speyer (mail):
Hmmm, so Rogers has slightly slandered every Senator by making each of them slightly more suspected of having sex in a mens restroom. Now there is a heck of a class action suit ... :)
2.1.2006 11:52pm
minnie:
That certainly is a strange website.

If someone says that he will reveal that a certain Senator never took the plastic off his lampshades unless the Senator votes in a certain way, is that blackmail?

Revealing this would certainly hold the Senator up to a certain amount of ridicule, at least among Architectural Digest subscribers.

So my point is, to say that revealing someone is gay is to hold them up to ridicule and would hence be illegal seems to imply there is something shameful about being gay. If the thing you threaten to reveal about someone is not shameful, how can you be accused of blackmail?

As for whether the threat of that web host is moral, no, I don't think it is. It's also immoral, as a legislator, to follow one practice yourself and vote to ban others from doing the same.

But two wrongs don't make a right.
2.2.2006 12:10am
honeybadger (mail):
"the right to privacy only restricts the government's ability to invade my privacy, not a private citizen's right to invade my privacy."

I meant the "general right to privacy" as defined in Katz v. United States as "the right to be left alone by other people". Read Rehnquist's dissent in Bartnicki et al. v. Vopper on "general privacy interests", the concept of "invasion of solitude" in tort law, etc.

If you believe in privacy at all yet accord none to people who disagree with you, you're a just another rank hypocrite. "Gays have a right to personal privacy unless I don't like them" is hardly a consistent moral position.
2.2.2006 1:03am
Public_Defender:
Assuming that this guy is just blowing smoke, doesn't the GOP and the US Senate have a cause of action for false accusation?
Doesn't the GOP and the US Senate have more important things to do with their time?
2.2.2006 3:58pm
Public_Defender:
Subject-verb agreement have never been my strong suit.
2.2.2006 4:00pm