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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!

28 Comments
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?
34 Comments