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The Crime of Blackmail: A Libertarian Critique.

There is something deeply paradoxical about laws that criminalize blackmail. How is it that, as Glanville Williams put it, "two things that taken separately are moral and legal whites together make a moral and legal black"?(1) For the crime of blackmail involves the criminalization of two otherwise legal acts when they occur in combination -- for example, the threat to disclose damaging information about another, and the offer to refrain from disclosing it for some valuable consideration. Were Alfred to (threaten to) disclose damaging information concerning Bill's extramarital affairs, no offense recognized by law would be involved (even if there were something distasteful about such gossip); were Alfred to ask Bill for $5000, again there would be no contravention of any proper law (even if it displayed a degree of chutzpah). But were Alfred to threaten Bill that he would disclose information concerning Bill's extramarital affairs unless Bill paid him $5000, his two part act would--under current laws--constitute the crime of blackmail. Why should the conjunction of such otherwise legal acts have an entirely different legal status?(2)

The paradox is heightened when we consider the reverse situation. Bill learns that Alfred is in possession of damaging information concerning him. He seeks Alfred out, and offers him $5000 to keep silent. If Alfred accepts Bill's offer, and subsequently keeps mum, he should not be held to have blackmailed Bill. Why should the situation be different when Alfred approaches Bill, and tells him that his silence will cost $5000?

This is the heart of the libertarian critique of blackmail laws, and in this essay I propose to defend that critique against a number of arguments that have been advanced to justify them. Although my critique of such laws depends ultimately on my belief that criminal prohibitions are justified only when some material threat is posed to another (by means of force, fraud, or theft), my arguments here will show that various attempts to avoid or account for the paradox do not succeed, even on their own terms. Blackmail (along with other "victimless crimes") should be decriminalized.(3),(4)

Some Definitional Preliminaries

Although standard instances of blackmail involve a threat to disclose damaging information if some monetary payment is not made, the range of possibilities is somewhat wider. Leo Katz, for example, suggests as alternative threats:

Pay me $10,000--or I will cause some really bad blood at the next faculty meeting, ... seduce your fiance, ... persuade your son that it is his patriotic duty to volunteer for combat in Vietnam, ... give your high-spirited, risk-addicted 19-year-old daughter a motorcycle for Christmas, ... hasten our father's death by leaving the Catholic church.(5)

Demands as well as threats may vary: usually it is for money, but it could also be for sexual favors or some other valued consideration. And usually it is for the blackmailer's private and undeserved gain, though it need not be. Imagine, writes Eric Mack,

that you can deter a factory owner from (safely) burning his plant to the ground (and thus thoroughly eliminating many employment opportunities) for the sake of destructive glee only by threatening to reveal his secrets. Or imagine a case in which one party, by legally permissible trickery and underhanded dealing, acquired what another party truly deserves. Wouldn't it be perfectly moral for the morally deserving party to blackmail the first party into transferring that valued good--especially if what was threatened was precisely the [revelation] of the trickery and underhandedness?(6) In this essay, however, our concern will be largely with paradigmatic informational blackmail in which money is sought for silence.

Blackmail should not be confused with extortion. In the latter, a threat to do something that would otherwise be illegal is made in demanding something from another: If Charles threatens to break David's knees or burn down his house if David does not give him $5000, Charles is guilty of extortion, not blackmail. Extortion is properly considered illegal.

Is There Really a Paradox of Blackmail?

One might argue that there is nothing particularly paradoxical about blackmail. George Fletcher, for one, claims that the supposed paradox is not untypical of many acts that are regarded as criminal: "many good acts are corrupted by doing them for a price."(7) Fletcher instances bribery, prostitution, and payment for confessing to a crime. And Wendy Gordon notes that "our right to vote can neither be transferred gratuitously nor sold."(8)

But are these plausible counter instances? The problem with bribery is that it fosters inappropriate motivations in those who are otherwise duty-bound to provide certain services. Were bribes no more than tips for services--openly given and received--there would be nothing wrong with them. What makes bribery problematic is not the conjunction of service and money, but the fact that money given secretly becomes an incentive to forgo duty and/or to do it only when more is given than one is contractually obliged to accept. Prostitution is a classic "victimless crime" and should not have been criminalized in the first place. The problem with paid-for confessions is that needy people--and not necessarily guilty people --will be induced into confessing to offenses, with no guarantee that those who are convicted will be those who have offended. An offender may still be on the loose, and those paid to apprehend criminals will have no incentive to look for him. As for the right to vote, it could have been otherwise. The only reason that political votes (unlike votes in publicly traded corporations) cannot be sold is that a majority has agreed not to commodify them.

Blackmail and Other Commercial Transactions

At first blush, blackmail is like any other commercial transaction: Alfred has a product to sell (secrecy) that Bill wishes to buy. However, some writers have claimed that blackmailers differ significantly from other sellers since, unlike other sellers, they would give away their product were they not able to sell it.(9) Perhaps so, perhaps not.(10) In any case it is not easy to see any significance to the difference. For other sellers, perhaps, the product to be sold represents an investment on their part, and therefore something they would be unlikely to give away, whereas the incriminating information that the blackmailer possesses is much more likely to have been gained without significant investment.

Maybe the difference lies in motivation. Wendy Gordon suggests that blackmail should be outlawed because "the blackmailer acquires information for the sole purpose of obtaining money or advantage from the victim, and ... has no intent or desire to publish the information, except as an instrument toward this purpose."(11) But why should the blackmailer's intent be of any interest to the law unless the conduct in question has independently infringed another's rights? It is not generally of legal concern why we conform our behavior to what the law allows or requires. Intent only becomes an issue once the law is broken. But since Alfred's disclosure of Bill's infidelities does not constitute conduct of a kind the law would ordinarily prohibit, it should not be of any legal interest to know why Alfred may or may not choose to disclose the information he has about Bill.(12)

Scott Altman suggests a further difference: whereas in an ordinary commercial transaction, both buyer and seller will be beneficiaries, in blackmail the primary beneficiary is the blackmailer.(13) But why should the person who buys silence not also be seen as benefiting from the transaction? He has purchased another's silence, something which, presumably, benefits him. It is true that, antecedent to the blackmailer's approach, the blackmailee was not seeking to purchase the silence of others, but that was because he believed that his secret was safe, and did not need to be secured through purchase.

Blackmail and Coercion

Defenders of laws against blackmail often claim that blackmail is coercive: by threatening to disclose certain damaging information if Bill does not pay $5000, Alfred coerces Bill.(14) Or so it is said. However, the idea of coercion cannot clearly be extended to such cases. In paradigm cases, Alfred coerces Bill into parting with $5000 if he tackles Bill and steals his wallet containing $5000, or if he puts a gun to Bill's head and threatens to pull the trigger should Bill refuse to hand over $5000. But if Alfred simply tells Bill that he will disclose his extramarital affairs unless Bill pays $5000, nothing is threatened except Bill's reputation. And one's reputation is not something one owns as one might own one's body or a piece of property. Reputation is a form of social recognition to which one does not have a right as one might have a right to one's property.(15) Should Alfred spread the information without making any claim for money, he will have done nothing illegal. Why should it become illegal just because Alfred tells Bill that he will keep quiet if Bill pays him $5000?

Perhaps the argument from coercion can be expressed as follows: The blackmailer's act is coercive because he proposes to reveal information that he is obligated not to disclose.(16) But this will not do either. Even were Alfred obligated not to reveal the information, it would still not show the threat to reveal it to be blackmail; rather, it would be a coercive threat, for example, extortion. It would indeed be legally wrong for Alfred to reveal what he told Bill in confidence, but the threat to disclose it unless Bill pays Alfred to keep quiet would be a legal wrong not because it is blackmail, but because it breached Alfred's contractual obligation to Bill. But if there is no obligation for Bill to keep the damaging information to himself, then and only then would there be no coercion involved in making it known. Should Alfred accidentally find out about Bill's extramarital affairs, he is under no obligation at all regarding its disclosure.(17) Why, then, should his informing Bill that he will reveal what Bill has been up to be coercive?

Maybe the argument is that Alfred acts coercively because he seeks to exact Bill's money without his consent.(18) Although no literal gun is being pointed at Bill's head, something else is--serious damage to his life, reputation, job prospects, or whatever--should he refuse to pay. This account, of course, would not work with cases in which Bill, on hearing that Alfred possesses (and is likely to reveal) the information, seeks him out to offer him "hush money," but perhaps the supporter of blackmail laws may not mind cutting these cases adrift from the scope of such legislation. Once again, however, we need to remind ourselves of the disanalogy with the gunman. Absent monetary considerations, if the gunman pulls the trigger a legally significant wrong is done to his victim, whereas, if Alfred spills the beans on Bill's philandering no crime is committed.

Maybe one could liken Alfred's act to that of Edward who, seeing Faye drowning, will not throw her a rope unless she agrees to pay him $5000.(19) This is surely exploitative of Faye's situation, but is it coercive? Were Edward to have pushed Faye into the water in the first place, there would indeed be an argument for saying that the demand for $5000 was coercive; but ex hypothesi he did not, and so, given that he does not violate a legal obligation in not throwing a rope to her, it is hardly coercive for him to demand something for his assistance.(20) Bill's follies, likewise, are his own doing, and not the result of a "set up" by Alfred, and if Alfred has come into possession of information that could be Bill's undoing, may he not offer to withhold it on his own terms?

Blackmail and Exploitation

Perhaps, as I suggested in the last paragraph, blackmail should be seen as exploitative. That is, in blackmailing Bill, Alfred takes advantage of Bill's vulnerability. If so, should this justify its legal proscription?

Note, first of all, that the notion of exploitation is none-too-clear; it is, for example, used by Marxist writers to characterize ordinary capitalist labor relations: in making a profit, employers of labor are said to return to their employees less than the full value of their labor. Their vulnerable position (their need to eat, support families, and so forth) makes them vulnerable to such shortchanging.

But even with a less expansive and less tendentious understanding, there is a gap between exploiting another's vulnerabilities and doing something that should be considered illegal. If George exploits Harold's generosity to get a loan, or Ivan exploits John's poor management of a rival business or even John's sudden and debilitating illness to gain a larger share of the market or to put John out of business, neither George nor Ivan have done anything illegal, however opportunistic they may have been. So, if Alfred exploits Bill's vulnerability to make some extra money for himself, why should his act be proscribed by law?

Blackmail and Privacy

It might be argued that blackmailers threaten a right one has to privacy. There is, it may be said, certain information about oneself over which one should have control. It is "one's own business," and not the business of others. If it is to be "given out," it is appropriately given out only if one has Consented to its being shared. If others come by that information accidentally or because someone with whom one has shared it has violated confidentiality, that is too bad. The third party is not guilty of any wrongdoing in having or sharing the information. However, if the third party, realizing that one wanted to keep the information to oneself, now chooses to use it as leverage for self-enrichment, then that person is violating the privacy rights of another no less improperly than the person who taps one's telephone or bugs one's house or looks in one's personal files.

But there are significant differences between these various cases. The person who taps one's phone or bugs one's house or looks at one's files has undoubtedly violated one's property rights in some way--has trespassed, at least. Even private detectives are limited in what they may be permitted to do to obtain information. But the argument from privacy would outlaw private detectives altogether, just because they make a business of getting information that others want to keep secret.(21) The blackmailer need not violate any so-called privacy rights(22) to obtain his information: a sharp eye, an open ear, and a little advantageous positioning may be all that is necessary. Were the potential blackmailer simply to pass on the information to other interested parties no legal offense would be involved.(23) Why should that change if the blackmailer seeks to take advantage of what he knows by seeking cash for silence?

Repeat Blackmail

Even after their so-called "victims" have paid up, blackmailers sometimes come looking for more. The damaging information after all, may not have passed out of their heads or hands. It may therefore be argued that the only way to keep blackmailers from repeatedly approaching those who have bought their silence is to ban blackmail altogether.(24)

But repeated attempts at blackmail may be prevented much more easily if blackmail is decriminalized. All that is required is that blackmailers sign a contract with the blackmailee that stipulates the blackmailers' permanent silence in return for a payment of [$X.sub.n]. Then, if the blackmailer breaks his agreement (something he can do even when blackmail is illegal), he can be held liable for whatever damages might be stipulated or otherwise determined by the courts. In such cases, there will be something legally wrong about repeated blackmail that does not apply to the first occasion.

What is more, to outlaw blackmail in the first instance because blackmail demands may be repeated in the future is not to punish someone for a past crime done but for a (potential) future crime--hardly what we have in mind when we speak of criminal justice. If this were allowed to be a general legal principle, moreover, we would have to entrench in the law the concept of preventive detention, for all members of groups statistically over represented in the criminal category.

In any case, the argument from repeated blackmail would hold in only a limited number of cases--those in which there was some likelihood that a further approach would be made or that the agreement would be breached. It would hardly provide a general argument against blackmail.

The Consequences of Blackmail

Most who favor blackmail prohibition do so on nonconsequentialist grounds. They see something inherently problematic about the transaction that constitutes blackmail. Nevertheless, perhaps to boost such arguments, they often supplement them with observations about the ill effects that decriminalizing blackmail would probably have.

Richard Epstein, for example, suggests that were blackmail to be legalized, it would encourage the formation of corporations such as his hypothetical "Blackmail Inc.," an organization devoted to ferreting out embarrassing (or worse) information on people and then blackmailing them to have it kept quiet.(25) Assuming the profitability of such an enterprise, a blackmailee might find himself the target of numerous independent approaches and, to meet the financial obligations incurred by this, might be led (or even encouraged) into committing crimes to pay for his chronic secrecy need.

But are such fears well founded? Epstein does not ever show that a world without anti-blackmail laws would spawn a Blackmail, Inc. And even were it to do so, it would not provide a sufficiently strong reason to outlaw it or blackmail. The tastelessness or unseemliness of a social institution is not a sufficient reason to ban it or enterprises that exploit it. We would have as good reason to ban malicious, gossip or The National Enquirer. And the social pressure that might lead a person into committing crimes to pay for secrecy would not differ substantially from the social pressure to "be somebody" or "impress others," motivations that may be just as likely to lead people to commit crimes.(26)

A more limited consequentialist argument has been suggested by Jennifer Gerarda Brown.(27) She suggests that were blackmail in cases of incriminating information legalized, there would likely be a reduction of crime. The criminally inclined would face the real possibility that they would have to "split" the profits of their criminality or otherwise pay to cover up their crimes, and such "costs" would constitute a significant deterrent to criminal activity. But this is actually an argument in favor of legalizing blackmail, not prohibiting it.

Buying Silence

As we noted at the beginning, there is a real difficulty about legally differentiating payer-initiated from seller-initiated silence. If Bill learns that Alfred possesses damaging information that he might be inclined to disclose to others, and offers Alfred $5000 to keep quiet, it is hard to argue that Alfred has either coerced or exploited Bill, or that the transaction should be outlawed.

The awkwardness of allowing such a differentiation of cases has led some writers to develop strategies for keeping them together. Thus Scott Altman has claimed:

Evidentiary and definitional problems with payer initiation can undermine any power it has to separate coercive from non coercive transactions. Some bargains appear payer initiated because the payer initially suggests the deal. But the payer might only learn of the other party's intent to reveal the embarrassing information after that party discloses this intent in order to elicit an offer or payment. Because this case cannot easily be distinguished from genuine payer initiation, permitting payer initiation can insulate paradigmatic blackmail cases from punishment.(28)

Similar arguments used to be employed against all forms of euthanasia, lest it should become a cloak for murder. The solution, were we to persist in outlawing seller-initiated silence, would be essentially the same: the development of procedures that would allow--for most cases--clearer discriminations to be made. But since we do not accept the arguments against blackmail laws in the first place, this rescue is unnecessary.

Blackmail and Victimization

Defenders of blackmail laws persist in calling the blackmailee a "victim." Once seen as such, blackmailers are easily tarred with wrongdoing. Yet this characterization trades on the conflation of two distinct senses of "victim." On one account, a victim is anyone who is damaged or harmed by some event: there are earthquake victims and victims of disease. Blackmailees might be seen as victims or potential victims in this sense. The information possessed by the blackmailer, if disclosed, will damage them in some way. And one might argue that if one kind of damage has been averted it has been averted only at a cost, and--at a stretch--that one is a "victim" of circumstances that have a cost.

But the term "victim" may also be used in a more restricted sense--as when we speak of someone being victimized. Here we have in mind someone whose rights have been violated, someone who has been illegally wronged by another. Is the person who is blackmailed a "victim" in this second sense? It would seem not: were Alfred to disclose the damaging information about Bill, no right of Bill's would have been violated. That he should refrain from doing what he had a right to do in exchange for some monetary consideration does not change the matter.(29)

Those who persist in speaking of blackmailees as "victims" can mean "victim" only in the first sense. Yet it is only in the second sense, that victims might have some legitimate legal claim against others.

Hard Cases

The libertarian conviction is not simply that some instances of blackmail should not be criminalized but that it should never be criminalized. The libertarian therefore needs to confront some hard cases.

(a) Suppose Ken tells Leon that if the Leon does not pay him $1000, he will report that Leon is guilty of a crime which he is already suspected of committing. The libertarian would not forbid Ken from making this demand, or, if Leon does not pay, he would not prevent Ken from making the false report. Ken has free speech rights, including the right to speak falsely about another. True, the police--and courts--may subsequently accept Ken's word about Leon, so that Leon is unjustly punished, but if they do that, that injustice is on them for failing thoroughly to investigate Ken's report. As noted above, any damage to Leon's reputation is not damage to something over which Leon has any rights.(30)

While the foregoing is perfectly compatible with libertarian theorizing, it will strike many as repugnant. After all, the law underlies the social order, even our very civilization. If one may with impunity place a spoke in the wheel of justice in this manner, it bespeaks ill of the libertarian philosophy. But there is a solution to this quandary, even apart from the radical substitution of libertarian for statist courts(31). And that is to pay or "tie up" witnesses so that they are contractually obligated to tell the truth upon pain of contract violation. One of the great injustices of our present court system is that witnesses are in effected drafted into testifying, and, so, for that matter, are jurors. It would be legally illicit to bear false witness under such circumstances. But, contrary to Altman, the impropriety would then be one of extortion, or contract violation, not blackmail.

(b) What if Michael learns that Nicholas has embezzled $1 million from his company, but suggests to Nicholas that for a payment of $50,000 he will not report it? Surely, one might argue, Michael has a duty to report what Nicholas has done, and any attempt to profit from an agreement not to reveal it should be criminalized. Although some libertarians might balk at cases of this kind, it is certainly open to others--myself included--to argue that whatever moral duty might be claimed to report the crimes of another (and not to profit from them), nevertheless there is no basis for legally requiring that the crimes of another should be reported. Such positive duties--like the positive duty to be a good Samaritan--have no place in criminal law.

Conclusion

Blackmail laws are often taken for granted. Indeed, such is the moral objectionableness of blackmail in many people's minds that they cannot imagine how the decriminalization of blackmail could possibly be supported. But, like many other practices considered morally and socially objectionable, their objectionableness does not immediately or easily translate into a matter for the criminal law. It has been my contention that this is true of blackmail. As the paradox of blackmail should have alerted us, there is indeed something deeply problematic about criminalizing an act that conjoins two other acts that, in themselves, are not criminal.

NOTES

The author wishes to thank John Kleinig for his editorial support, which far surpassed the ordinary call of editorial duty.

(1) Williams, Blackmail, [1954] CRIM. L. REV. 79, at 163 (1954). It was Williams who originally spoke of "the paradox of blackmail." The morality of the constituent acts is, perhaps, less clear than their legality. But my concern here is with the justification of blackmail's criminalization not with its morality per se.

(2) It might be claimed that using the example of extramarital affairs--though typical--unfairly prejudices the case in favor of the opponent of blackmail. Many would feel that the philanderer deserved what was coming to him--whether it was blackmail or exposure. Were the information of a different but still mortifying kind--disclosure that a bank executive always took a rubber duckie into his bath, or wet his bed, or had a black/Jewish grandmother--would we feel as sanguine about the blackmailer's opportunism? Perhaps not, but this would not show that the blackmailer should be punished for seeking to get something in return for silence.

(3) Authors offering arguments in favor of the present prohibition of blackmail are numerous. They include: Alldridge, "Attempted Murder of the Soul": Blackmail, Privacy and Secrets, 13 OXFORD J. LEGAL STUD. 368 (1993); Altman, A Patchwork Theory of Blackmail, 141 U. PA. L. REV. 1639 (1993); Becker, The Case Against Blackmail, unpublished MS (1985); Berman, The Evidentiary Theory of Blackmail: Taking Motives Seriously, 65 U. CHI. L. REV. 795 (1998); Boyle, A Theory of Law and Information: Copyright, Spleens, Blackmail, and Insider Trading, 80 CALIF. L. REV. 1413 (1992); Brown, Blackmail as Private Justice, 141 U. PA. L. REV. 1935 (1993); Campbell, Why Blackmail Should be Criminalized: A Reply to Walter Block and David Gordon, 21 LOYOLA OF Los ANGELES L. REV. 883 (1988); Campbell, The Anomalies of Blackmail, 55 LEGAL Q. REV. 382 (1939); Coase, The 1987 McCorkle Lecture: Blackmail, 74 VA. L. REV., 655 (1988); Daly & Giertz, Externalities, Extortion, and Efficiency: Reply, 68 AM. ECON. REV. 736 (1978); DeLong, Blackmailers, Bribe Takers, and the Second Paradox, 141 U. PA. L. REV. 1663 (1993); Ellsberg, The Theory and Practice of Blackmail, in BARGAINING: FORMAL THEORIES OF NEGOTIATION 343 (O.R. Young, ed. 1975); Epstein, Blackmail, Inc., 50 U. CHI. L. REV., 553 (1983); Evans, Why Blackmail Should be Banned, 65 PHIL. 89 (1990); Feinberg, The Paradox of Blackmail, 1 RATIO JURIS 83 (1988); J. FEINBERG, HARMLESS WRONGDOING (1990); Fletcher, Blackmail: The Paradigmatic Case, 141 U. PA. L. REV. 1617 (1993); C. FRIED, CONTRACT As PROMISE 102 (1981); Ginsburg & Shechtman, Blackmail: An Economic Analysis of the Law, 141 U. PA. L. REV. 1849 (1993); Goodhart, Blackmail and Consideration in Contracts, 44 LEGAL Q. REV. 436 (1928), repr. in A.L. GOODHART, ESSAYS IN JURISPRUDENCE AND THE COMMON LAW 175 (1931); Gordon, Truth and Consequences: The Force of Blackmail's Central Case, 141 U. PA. L. REV. 1741 (1993); Gorr, Nozick's Argument Against Blackmail, 58 PERSONALIST 187 (1977); Gorr, Liberalism and the Paradox of Blackmail, 21 PHIL. & PUB. AFF. 43 (1992); Haksar, Coercive Proposals, 4 POL. THEORY, 65 (1976); Hale, Bargaining, Duress, and Economic Liberty, 43 COLUM. L. REV. 603 (1943); Hale, Coercion and Distribution in a Supposedly Non-Coercive State, 38 POL. Sci. Q. 470 (1923); Hardin, Blackmailing for Mutual Good, 141 U. PA. L. REV. 1787 (1993); M. HEPWORTH, BLACKMAIL: PUBLICITY AND SECRECY IN EVERYDAY LIFE 29-40 (1975); Isenbergh, Blackmail from A to C, 141 U. PA. L. REV. 1905 (1993); Jandoo & Harland, Legally Aided Blackmail, 27 NEW L. J. 402 (1984); Katz, Blackmail and Other Forms of Arm-Twisting, 141 U. PA. L. REV. 1567 (1993); Katz & Lindgren, Instead of a Preface, 141 U. PA. L. REV. 1565 (1993); Landes & Posner, The Private Enforcement of Law, 4 J. LEGAL STUD. 1 (1975); Lindgren, Unraveling the Paradox of Blackmail, 84 COLUM. L. REV. 670 (1984); Lindgren, More Blackmail Ink: a Critique of "Blackmail, Inc.," Epstein's Theory of Blackmail 16 CONN. L. REV. 909 (1984); Lindgren, In Defense of Keeping Blackmail A Crime: Responding to Block and Gordon, 20 LOYOLA OF Los ANGELES L. REV. 35 (1986); Lindgren, Blackmail: On Waste, Morals and Ronald Coase, 36 U.C.L.A.L. REV. 597 (1989); Lindgren, Kept in the Dark: Owen's View of Blackmail 21 CONN. L. REV. 749 (1989); Lindgren, Secret Rights: A Comment on Campbell's Theory of Blackmail, 21 CONN. L. REV. 407 (1989); Lindgren, Blackmail: An Afterword, 141 U. PA. L. REV. 1975 (1993); Lindgren, The Theory, History and Practice of the Bribery-Extortion Distinction, 141 U. PA. L. REV. 1695 (1993); Lyons, Welcome Threats and Coercive Offers, 50 PHIL. 425 (1975); Murphy, Blackmail: A Preliminary Inquiry, 63 MONIST 156 (1980); R. NOZICK, ANARCHY, STATE AND UTOPIA (1974); Owens, Should Blackmail be Banned?, 63 PHIL. 501 (1979); R.A. POSNER, ECONOMIC ANALYSIS OF LAW (4th ed. 1992); Posner, Blackmail, Privacy and Freedom of Contract, 141 U. PA. L. REV. 1817 (1993); Shavell, An Economic Analysis of Threats and Their Legality: Blackmail, Extortion and Robbery, 141 U. PA. L. REV. 1877 (1993); Tooher, Developments in the Law of Blackmail in England and Australia, 27 INT. & COMP. L. Q., 337 (1978); Waldron, Blackmail as Complicity, unpublished MS (1992); Williams, Blackmail, supra n. 1; Winder, The Development of Blackmail, 5 MODERN L. REV. 21 (1941).

(4) In contrast, here is the libertarian case for the repeal of laws prohibiting blackmail: Mack, In Defense of Blackmail, 41 PHIL. STUD. 273 (1982); M.N. ROTHBARD, THE ETHICS OF LIBERTY (1998); M.N. ROTHBARD, MAN, ECONOMY AND STATE 443 n. 49 (1993); Block, The Blackmailer as Hero, THE LIBERTARIAN FORUM 1 (Dec. 1972); W. BLOCK, DEFENDING THE UNDEFENDABLE 44-49 (1976; 1991); Block & Gordon, Extortion and the Exercise of Free Speech Rights: A Reply to Professors Posner, Epstein, Nozick and Lindgren, 19 LOYOLA OF Los ANGELES L. REV. 37 (1985); Block, Trading Money for Silence, 8 U. HAWAII L. REV. 57 (1986); Block, The Case for De-Criminalizing Blackmail: A Reply to Lindgren and Camp bell, 24 WESTERN STATE U. L. REV. 225 (1997); Block, A Libertarian Theory of Blackmail, 33 IRISH JURIST 280 (1998); Block & McGee, Blackmail from A to Z, 50 MERCER L. REV. 569 (1999); Block, Toward a Libertarian Theory of Blackmail, J. LIBERTARIAN STUD. (forthcoming); Block & McGee, Blackmail As a Victimless Crime, 31 BRACTON L. J. 24 (1999); Block, Kinsella, & Hoppe, The Second Paradox of Blackmail, Q. J. Bus. ETHICS (forthcoming); Block, Let's Legalize Blackmail, SETON HALL L. REV (forthcoming); Block, Blackmailing for Mutual Good VERMONT L. REV. (forthcoming); Block & Anderson, Posner on Blackmail: A Critique (forthcoming); Block, Blackmail and "Economic" Analysis, THOMAS JEFFERSON L. REV. (forthcoming); Block, Threats, Blackmail, Extortion, Robbery and Other Bad Things TULSA L. REV. (forthcoming); Block, Blackmail is Private Justice, U. BRIT. COL. L. REV. (forthcoming).

(5) Katz, Blackmail and Other Forms of Arm-Twisting, supra n. 3, at 1567-68. Sometimes the threat may take the form of an offer --though of a form that Hillel Steiner refers to as a "throffer"--in which failure to take it up is associated with threatened consequences. See Steiner, Individual Liberty, 75 ARISTOTELIAN SOC'Y PROC. 33, at 39 (1974-75).

(6) Mack, In Defense of Blackmail, supra n. 4, at 277. To counter the response that these are cases in which the blackmailees are being blackmailed only into not doing something, Mack suggests that the factory owner might be blackmailed into donating money for Cambodian relief (278).

(7) Fletcher, Blackmail: The Paradigmatic Case, supra n. 3.

(8) Gordon, Truth and Consequences, supra n. 3, at 1744.

(9) See Altman, A Patchwork Theory of Blackmail, supra n. 3, at 1640.

(10) Restaurants and supermarkets often donate "day old" food to the poor.

(11) Gordon, Truth and Consequences, supra n. 3, at 1746. Mack's counterexamples (supra n. 6) cast some doubt on the generality of this claim.

(12) In actual fact, a blackmailer's motives might be much more complicated. Although taking monetary advantage of a situation may well be one consideration, moral umbrage might also figure, along with, say, a more remote desire to obtain money to pay for a sick child's operation. Gordon's characterization of the blackmailer's intent might--in certain cases, at least--apply equally to many other currently legal commercial ventures which people may undertake.

(13) Altman, A Patchwork Theory of Blackmail, supra n. 3, at 1641.

(14) The simple fact of a threat is not sufficient to make the act coercive (and hence illegitimate). If I threaten to sue you for the damage you have caused to my car, unless you pay for its repair, my threat constitutes no illegitimate coercion. Should it be argued that some threats one has a right to make (as in the latter case) whereas others one has no right to make (as in blackmail), the libertarian will reply that this begs the question: Why should Alfred not threaten to reveal Bill's extramarital affairs unless some payment is made?

(15) Should it be objected that the destruction of reputation by means of disclosure of information about one does constitute a violation of rights (as is sometimes allowed by laws against libel and defamation), the libertarian will respond that the question is begged. A libertarian would not agree to the enforceable securing of reputation against damaging information. On this see W. BLOCK, DEFENDING THE UNDEFENDABLE, supra n. 4, at 59-62; M. ROTHBARD, ETHICS OF LIBERTY, supra n. 4, at 12122.

(16) For this argument, see Altman, A Patchwork Theory of Blackmail, supra n. 3, at 1642, fn. 11. For a rejoinder, see Block & McGee, Blackmail As a Victimless Crime, supra n. 4, text at note 23.

(17) That may be too strong: perhaps there is a moral or religious obligation not to gossip about others. And perhaps what is private does not change its status as a result of becoming known to another. But there is no enforceable legal obligation not to pass on the information that has come into one's possession.

(18) Katz, Blackmail and Other Forms of Arm-Twisting, supra n. 3, at 1599.

(19) See Altman, A Patchwork Theory of Blackmail, supra n. 3, at 1643.

(20) I am, of course, assuming that there is no "Good Samaritan" law requiring that assistance be given. Were there such a law, a libertarian would of course oppose it.

(21) That surely goes for investigative reporters, newshounds, and gossip columnists as well. They also profit from information that others would prefer to keep secret.

(22) Libertarians reject privacy rights that are not reducible to property rights--rights not to have one's property bugged or phone tapped. See M. ROTHBARD, THE ETHICS OF LIBERTY, supra n. 4, at 121-22.

(23) Although some jurisdictions do recognize torts for "violation of privacy," libertarians are opposed to such constraints, because such torts must allow--what I challenge--that people can have property rights in their reputation.

(24) See e.g., Fletcher, Blackmail: The Paradigmatic Case, supra n. 3, at 1623, 1627. See also Altman, A Patchwork Theory of Blackmail, supra n. 3, at 1648. Fletcher sees the possibility of the blackmailer's coming back for more as constituting a permanent domination of the blackmailer over the blackmailee. But that is only if no contract is made between the blackmailer and blackmailee forbidding any further claims.

(25) Richard Epstein, Blackmail, Inc., supra n. 3.

(26) For an extended discussion, see Block & Gordon, Extortion and the Exercise of Free Speech Rights, supra n. 4.

(27) Brown, Blackmail as Private Justice, supra n. 3.

(28) Altman, A Patchwork Theory of Blackmail, supra n. 3, at 1649.

(29) Indeed, one might be inclined to argue that the blackmailer displays a kind of decency toward the blackmailee by offering him a way out of his predicament (the blackmailer's opportunity to damage the potential blackmailee by disclosing--as he has a right to do--the information he has on him). The gossip provides no such injury-averting option. See Block & Gordon, Blackmail, Extortion and Free Speech, supra n. 4, at 39: "In contrast to the gossip, who tells the secret without even affording the victim the opportunity of purchasing silence, the blackmailer can be seen as a benefactor."

(30) See W. BLOCK, DEFENDING THE UNDEFENDABLE, supra n. 4, at 59-62; also, M. ROTHBARD, THE ETHICS OF LIBERTY supra n. 4, at 126-27.

(31) On this see M. ROTHBARD, FOR A NEW LIBERTY (1973).

Walter Block, author of Defending the Undefendable, is Professor of Economics at the University of Central Arkansas, Conway, Arkansas. Email: wblock@mail.uca.edu
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