We know that blackmail, the attempt to extort money from someone by threatening to reveal some secret about them if they don’t cough up, is illegal. It is viewed as a particularly despicable crime that usually preys on the weak and defenseless. It seems self-evident that blackmail is wrong and should be punishable by law. But this website brought to my attention something that I had not considered before and that is that it is not clear why blackmail should be illegal at all.
In US law, blackmail is defined as “Whoever, under a threat of informing, or as a consideration for not informing, against any violation of any law of the United States, demands or receives any money or other valuable thing, shall be fined under this title or imprisoned not more than one year, or both.”
This seems clear enough but there are two paradoxes that arise.
One is that it is not illegal to reveal a secret about somebody. People who gossip do it all the time and are not prosecuted. It is also not illegal to ‘demand money or other valuable thing’ from someone. So why is combining the two acts illegal, or as it has been sometimes phrased, “How can two rights make a wrong?”
A second paradox about blackmail is that if I know that someone knows a secret about me and I offer to pay that person to not reveal it, that contract amounts to bribery and not illegal. In other words, the illegality of the transaction depends on who initiates it.
The first paradox has been countered by saying that the ‘two rights make a wrong’ situation is not unique to blackmail and can be found elsewhere. For example, it is not illegal to have an alcohol level in one’s blood above a certain limit. Driving is also legal. But it is illegal to have the two in combination. Thus this aspect need not be an insurmountable paradox.
Walter Block, N. Stephan Kinsella and Hans-Hermann Hoppe writing in The Second Paradox of Blackmail (Business Ethics QuarterlyVol. 10, No. 3 (Jul., 2000), pp. 593-622) point to an actual case that illustrates the second paradox.
As a real-world example, consider the fate of Autumn Jackson, who was convicted of extortion for threatening to tell the tabloids that she was entertainer Bill Cosby’s out-of-wedlock child unless he paid her $40 million. Many commentators noted with irony that if Jackson had first filed a paternity suit and then settled the suit in exchange for money and silence-essentially, being bribed-no crime would have been committed.
The authors seem to approach the blackmail issue from a libertarian perspective and argue that the existence of these paradoxes suggest that there is no legal theory that justifies treating blackmail as a crime and thus that it should not be illegal, and that what the blackmailer is doing is selling a service (silence) that the blackmailee is buying that service and that as long as no physical aggression is involved, the state should not intervene in what is essentially a private transaction.
If it is true that blackmail should be legal, the paradoxes vanish and there is nothing to explain. It is legal (and we contend that it should be) to gossip about other people, even concerning their infidelities. It is not against the law to threaten to gossip, nor to demand or request money. If it is legal to bribe someone, to pay them for silence, it should not matter whether the blackmailer or briber (blackmailee) approaches the other to initiate the transaction. If it is licit to make a threat, it should not be a crime, either, to decline to carry it out, for a fee. In short, biackmail does not involve aggression, i.e. the initiation of force. It therefore does not violate individual rights, and the state is consequently not justified in using the force of the law to outlaw this non-aggressive action
One point against this is that this is not like a normal transaction between a buyer and seller. In this case the blackmailer is selling a service that the blackmailee cannot get elsewhere and is thus acting as a monopoly. For example, it is usually legal for merchants to set whatever prices they want for their goods and the need to be competitive ensures that prices are not exorbitant. But there are laws against the price gouging that sometimes takes place after a natural disaster when a merchant in sole possession of an essential commodity like bottled water charges an exorbitant amount for it just because the buyer has no option. In that case the state can and often does intervene.
The odd thing about blackmail is that it is often practiced in everyday life with no controversy because the stakes involved are rather small. Someone who says to another “I won’t tell so-and-so about this if you do me this favor” is committing blackmail. It also often takes a tacit form where one is forced to treat someone well out of fear that that person may embarrass you by revealing some damaging information. The boss who drinks on the job who gives her secretary a raise because the latter has hinted the possibility of revealing that fact, is being tacitly blackmailed.
Sometimes it is quite open, especially in politics. Take this recent story where David Duke threatens the Republican party leadership that if they strip GOP whip Steve Scalise of his position because he once spoke to Duke’s white supremacist organization, then he will release the names of all the other politicians who have had contacts with him. That sounds like blackmail to me. And yet, that kind of quid pro quo threat is routine in politics.
In the end, I don’t think that the libertarian philosophy of the authors of the above article will prevail. The legal system does not work like the laws of science and is not always required to be entirely consistent or logical. Sometimes it decides what is right and wrong on somewhat ad hoc grounds and then finds ways to justify it. Blackmail may be one such case.