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Blackmail as a Career Choice: A Liberal Assessment.

Walter Block sets out a respectable libertarian critique of laws that criminalize blackmail. Although some may take offense at the behavior of those who earn or supplement their livelihoods in this despicable way, Block endorses the libertarian precept that would restrict the criminal sanction only to cases in which miscreants employ or threaten to employ force, fraud, or theft. Absent some element of this triad, the blackmailer's misdeeds should attract the attention of the law--the civil law, not the criminal law--only when one of the parties complains that the voluntary agreement between the two--the blackmail contract--has been breached. It is the purpose of this paper to focus attention on the nature of that peculiar agreement and to argue that it is, in one critically important way, unworthy of the respect that Block wants us and our judiciary to accord to it.

The paradox of blackmail is familiar, emerging from two apparently uncontroversial premises. The first is that what the blackmailer threatens to do, characteristically, is merely to reveal or publicize what is true of, albeit highly damaging to, another. Even though this may be harmful, it is ordinarily not a criminal offense and journalistic "muckrakers" often prosper from the marketing of such stories. Likening the blackmailer's reputation-shattering disclosures to "gossip," Block is at pains to show that force, fraud, and theft need not be involved and I shall not challenge him on that point. Indeed, it should be noted that there are cases in which such disclosure is admirable, as when public-spirited citizens identify wanted felons to the authorities or when whistleblowers alert the public to corporate and official misconduct.

Now although it is no criminal offense to pass along such information, neither is it an offense to sit on it. Thus the second premise: that it is not generally a criminal offense to ask to be paid for a promise to forbear from doing what one is at liberty to do or not, as one wishes. If I am free both to do A and to forbear from doing A, I am at liberty to ask for and accept payment in return for a promise not to do A. Commercial transactions commonly have this feature. If, for example, you want to buy my car but will not have the full amount until next week, I may ask for a smaller sum in exchange for my promise not to sell to anyone else for seven days. Such agreements to forbear from action are simply garden-variety commercial transactions that routinely receive our judicial blessing.

Now if we put the two of these innocent acts together--"I will promise to keep your dark secret quiet if you pay me"--we somehow get an agreement without legal validity: indeed one that makes the offeror into a criminal. This is puzzling. Much of the literature on this paradox has sought an ethical/jurisprudential justification for holding that blackmail belongs on the list of criminal offenses. I think it is right to say that there is no generally accepted account of why this should be so.(1) But after considering much of that inconclusive work, Block and his Libertarian comrades have urged that we eliminate the paradox by legalizing blackmail. That approach suggests that we pause and reflect on the place of contracts within the judicial system. Taking the blackmailer's agreement as an exemplar, this is what I propose to do.

If Block's arguments were to prevail, then we would expect the offense of blackmail to be struck from the criminal codes. For the would-be blackmailer, decriminalization eliminates the costs and hazards of prosecution. Given the mean price of secrecy set out in his examples -- $5000 -- one would anticipate that blackmail would become an economically attractive career choice. It is a useful analytical approach to look carefully at the blackmailer's business, trying to conceive it as a lucrative opportunity in Block's libertarian utopia. Having made such a career choice, how might one prosper?(2)

Let us begin by recalling that, just as auto mechanics need car owners with dysfunctional vehicles and agricultural workers need farmers with ripening crops, so blackmailers too require a very special type of situation. Analytically, four elements are worth noting. First, the blackmailer's mark must have something to hide, a fact or a set of facts that will, if revealed, do grave damage to his or her life prospects: the graver, the better. In general, the loftier the mark's station, the more catastrophic the personal consequences would be if the scandalous filth came to light. This high-quality "dirt" is the blackmailer's stock-in-trade. Second, the mark must have access to something the blackmailer wants. Following Block, we will limit our discussion to money, noting as he does, that the demands of blackmailers may, in practice, range more widely. Plainly, the greater the mark's financial means, the more she or he will be able to pay to prevent the threatened ruin.

Third, the damaging information that the blackmailer has about the client should be unknown to others. In the best case, the most successful entrepreneurs will have a de facto monopoly on deliberate silence. At bottom, what the client obsessively desires is continued secrecy, but what the blackmailer has to sell is merely his or her silence. This silence can guarantee secrecy only if no one other than the blackmailer would disclose or, more accurately, only if disclosure will not occur in any other way. The more likely it is that the revelation will occur anyway, the less the blackmailer's secrecy is worth. Fourth and last, the information the blackmailer has must be convincing to others, either in itself or in the way it could lead to damaging inquiries. Photographic negatives, recordings, eyewitness testimony, original letters and other documents can be ideal in this regard, though this list is not complete. Mere hearsay may not be enough and this feature is one that sets it apart from much gossip and journalism.

We might think of the ideal mark as having a history of criminal wickedness that is completely unsuspected by family, friends and associates. Wealthy, well respected and very gainfully employed, the mark will be shamed, impoverished and imprisoned if certain documents are brought to the attention of the police. Our entrepreneur--let us say--has these documents and will turn them over to the authorities if the mark fails to make payments.

If one aspired to a successful career as a blackmailer, one would have to have a steady supply of high-quality dirt. Although some might worry that these financial incentives would unleash battalions of privacy-invading investigators, Block reminds us that our tabloids and private detective agencies have already loosed these legions upon us. As with journalists and sleuths, there will be legal questions about how far blackmailers can go to rake in their maligning muck, but Block reminds us that illicit invasions will still be actionable. We will return to this issue.

Contract--a legal agreement involving two or more parties--is central to Block's defense of blackmail and, indeed, to much Libertarian theory. It is the basis for their trademark opposition to big government and to victimless crimes like drug dealing and prostitution. The arrangement between the blackmailer and the client can be construed as a contract entered into by both parties. What are the terms a successful blackmailer would want to include?

Setting the fees and precisely defining the service are perhaps the two most interesting problems. We will take up the second of these later on. As regards the first--the fee schedule--five factors should be taken into account. We can begin with the burden of complying with the terms of the promise. While it might take some effort to keep one's mouth shut and one's documents secure, so honoring one's promise of secrecy, the costs of providing the blackmailer's obligatory silence will be relatively small. Added to these are, second, the costs associated with obtaining a regular supply of incriminating information; third, the costs of covering other related business expenses (office space, confidential files, telephones, and so forth) and fourth, the expenses incurred by a becoming lifestyle--the blackmailer's target income. One might imagine a career blackmailer with a substantial clientele who is able to provide services at a reasonable and modest cost to the consumer. In competitive markets, where many suppliers produce similar goods, prices can approach the cost of manufacture, driving out all but the most efficient producers.

But a fifth factor will tend to drive fees far higher. Where competition is wholly absent and the goods are urgently needed (as with monopolies, for example), prices may approach the level of the next most costly alternative. To use the stock example--one that is discussed by Block--consider that Swimmer is drowning and Bystander is uniquely capable of throwing her a lifeline. Bystander offers to save Swimmer's life, but only if she promises to pay him a rather large proportion of her lifetime earnings. As her lungs fill, Swimmer chokingly accedes to Bystander's offer and obtains the promised assistance out of the water. Libertarians like Block want us to honor the terms of such a contract, so long as Bystander did not contribute to Swimmer's precarious circumstance. But notice that, in these instances, price bears no relationship to the costs of providing the service plus a decent livelihood for the seller. In a Libertarian utopia, it will be very, very lucrative to be alone in offering urgently needed goods and services to those who have only hideously unattractive alternatives. This is blackmail's distinctive economic beauty.

Now where the information possessed by the blackmailer can destroy the career, the livelihood, the reputation, and the family of the mark, the price the blackmailer can command over time will be just under what the assured enjoyment of these goods is worth to the mark. There is no reason, as Block seems to assume, for blackmailers to limit themselves to a single payment based on the mark's present financial means. The contract is more lucratively conceived as a kind of mortgage or, perhaps, as an ongoing payment for continuing services. To be able to squeeze a large, wealthy, "respectable" clientele is to achieve more than mere prosperity. Exploitation, Block reminds us, is a murky concept wielded by Marxists, and the medieval concept of the "just price" never appears on his radar screen.

There is, however, a serious occupational hazard in this business. The mark may become embittered and angry as the need to manage payments and preserve secrecy erodes the quality of his or her life. He or she may feel ill used, exploited, a victim of untrammeled greed and injustice. Maybe there are other secrets and other blackmailers. Maybe, as other tradesmen learn to implement unconscionably extortionate fee schedules--lifeguards, doctors, dentists, firefighters, emergency medical technicians, and criminal attorneys, for example--other financial obligations will reduce the mark's ability to pay. Maybe it has become necessary to supplement income in risky, unethical and legally questionable ways. At a certain point disclosure and financial ruin may become equally and totally unacceptable. Desperation may easily heighten the plausibility of alternatives that would ordinarily not be considered: suicide, for example. But it may also occur to the client that, though silence is for sale at the blackmailer's high price, it can also be obtained through homicide. Given the client's depressingly bleak alternatives, the ongoing experience of being cornered, and the rage that might easily flow from these, murder might have considerable appeal notwithstanding the risk of having to pay its distinctively high price.

Although some would question a social practice merely on the grounds that it generates serious felonies, it is not my purpose now to place weight on this societal disutility. Rather I want to look at how the prudent blackmailer could structure the contract to reduce the risk of unnatural death. One standard strategy is to set up the business so that in the event that a client murders you, that client's secrets will automatically be revealed. Although this might be useful, it might not provide the protection a blackmailer would want. For the apprehension and conviction of the murderer would likely destroy the mark's career, livelihood, reputation, and family as well as any blackmailer's disclosure would. And, more to the point, we cannot assume that it will be clear who the murderer is. For the blackmailer with dozens of clients, and scores of others who are being indirectly harmed, there will be many with murder motives. Picking out the perpetrator could be a problem.

Maybe the best strategy would be to stipulate in the contract that all the damaging information for all the clients will be automatically revealed in the event that the blackmailer is murdered. Or maybe in the event that he dies under suspicious circumstances. Or maybe if he just dies? Or maybe if he becomes permanently comatose? Maybe it makes sense to reveal the information even if it looks like the blackmailer killed himself? Possessing a de facto monopoly affords the blackmailer great latitude in setting the terms of the contract. Then again, in anticipating the possibility of death, the blackmailer might also consider whether the remaining cache of valuable dirt should be destroyed, publicized (thereby eliminating its commercial value) or given over to the estate, the assets and income stream passing to heirs? Might court appointees have to administer the business during probate? Wouldn't these officers of the court have to review the dirt? Would they have to report some or all of the evidence of criminal and other wrongdoing that was contained in the blackmailer's files?

I do not want to settle any of these issues but, rather, to consider that, though the blackmailer's clients have the greatest possible interest in the interpretation and implementation of these contracts, the judicial system is peculiarly closed to them. Block bases his analysis of blackmail on a contractual model. And yet the concept of contract is inseparable from the judicial system within which such agreements are routinely, publicly and authoritatively interpreted and enforced. Both parties are entitled to equal access in the interests of justice, even Libertarian justice.

The adjudicability problem arises for clients who, prior to revelation, question the validity of the obligations they have assumed and/or question the powers claimed by the blackmailer. Maybe they believe the blackmailer has illicitly invaded their privacy. Maybe multiple blackmailers, each with the same information, are squeezing them for more than they have. Maybe their blackmailers have died under suspicious circumstances and, after having paid huge sums for years and expressing a willingness to continue to pay, they do not want their lives devastated. Recall that it is in the nature of the mark's situation that he or she cannot afford that others suspect the existence of the closeted skeleton. But it is also in the nature of a just judicial system that its proceedings be generally public and that parties can be called upon to testify truthfully. While it is true that courts will very occasionally accede to closed proceedings--in child-abuse and trade-secret cases, for example--the weighty justifications for those exceptions do not apply in the disputes under review here. Libertarians especially would do well to remember the governmental abuses that have historically flowed from a secret judicial system. To his credit, Block, out of consistency, objects to the requirement that witnesses may be called to testify in court and even that they be required to testify truthfully.

There is indeed a "paradox" implicit in blackmail, but it is to be found in the nature of the blackmailer's contract. It is a paradox that works against Block's case. For while the bilateral agreement guarantees the mark an urgently needed secrecy, the mark must waive the very secrecy he or she is contractually entitled to in order judicially to secure that same entitlement to secrecy: one must waive secrecy in order to secure secrecy. This helps to explain why it can become plausible to murder the blackmailer. Extra-judicial remedies--vendettas, for example--are the only ones available when judicial remedies are not options: consider the "street justice" common among prison inmates and teenage gangs. Pre-disclosure civil remedies are not available to the blackmailer's client because, well before the judge's verdict, the very process of judicial review--including publicity, subpoena, and testimony under oath and on pain of perjury--can in itself decisively settle the issue against the party with the overriding need for secrecy. And post-disclosure civil remedies are characteristically worthless to the client in that the entire game will have been decisively lost by then.

In a very real sense, blackmail contracts can require the client who seeks judicial relief to forfeit thereby all the entitlements explicitly guaranteed to him or her under the terms of the contract. When it is plain, as it is here, that the very structure of a contract precludes the possibility of fair judicial review, that, it seems, justifies treating them as invalid. Contracts calling for the concealment of guilty secrets have precisely that flawed structure.

The astute reader will have noticed that, though the argument above, if sound, establishes that the blackmailer's contract should be seen as void, it does not establish that what the blackmailer does in initiating and participating in such an arrangement should be a criminal offense. While a full exploration of these issues cannot now be attempted, here I want merely to sketch the shape that such an argument could take. First, as shown, predisclosure disputes over the interpretation and implementation of the blackmail contract, while of existential importance to the mark, are not capable of being resolved by the system of civil justice. Second, as with all serious disputes, there is a powerful public interest in seeing to it that these disputes do not get out of hand: we are better off devising systems of justice that can secure the blessings of peace than we would be relying on vendettas. That is the classic Lockean justification for a judiciary.

Since civil remedies are powerless here (for the reasons I have set out), that leaves either the governmental regulation of blackmail--a New Deal-style Fair Blackmail Agency, comparable to mechanisms we routinely use to domesticate other monopolies--or criminalization. I suspect Block and I would both strongly oppose governmental regulation, but for vastly different reasons, the discussion of which would take us beyond the scope of this paper. That leaves criminalization as the remaining and favored option.

I believe I have shown how one could justify the broad democratic sentiment to retain the designation of this criminal offense. Far from being garden-variety commercial undertakings, these arrangements are not worthy of legal recognition, nor do the business practices built upon them deserve public support.

NOTES

I am indebted to Kathy Albu, Hazel Beh, Ron Bontekoe, Arindam Chakrabarti, Harvey Kipnis, and John Kleinig for their contributions to whatever is commendable about the above discussion. Any oversights and errors, however, are entirely the responsibility of the author.

(1) A review of some of these efforts is to be found in J. Lindgren, Unraveling the Paradox of Blackmail, 84 COLUM. L. REV. 670 (1984). Notable discussions are to be found in JOEL FEINBERG'S 3 THE MORAL LIMITS OF THE CRIMINAL LAW: HARMLESS WRONGDOING (1990) and LEO KATZ'S ILL-GOTTEN GAINS: EVASION, BLACKMAIL, FRAUD, AND KINDRED PUZZLES OF THE LAW (1996).

(2) Richard Epstein has explored some of this terrain in Blackmail, Inc., 50 U. CHI. L. REV. 553 (1983).

Kenneth Kipnis, author of Legal Ethics, is Professor of Philosophy at the University of Hawaii at Manoa.
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Author:KIPNIS, KENNETH
Publication:Criminal Justice Ethics
Date:Jun 22, 1999
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