Why is blackmail illegal, and other fake paradoxes by mattsteinglass
October 15, 2009, 12:48 am
Filed under: Crime

This Lizzie Widdicombe piece in the New Yorker is kind of cute, but it’s also slightly sophomoric. I’m frankly surprised that Jamie Lindgren, the Northwestern professor who kicks off the article, finds it such a paradox that blackmail is illegal:

Lindgren is the author of a paper called “Unraveling the Paradox of Blackmail,” which raises the question: why is blackmail considered a crime? The thinking goes like this: It’s perfectly legal for Halderman to write, or threaten to write, a screenplay (or an e-mail to TMZ) exposing the fact that David Letterman had flings with “Late Show” employees. It’s also legal for Halderman to ask Letterman for money as part of a business transaction. So why are the two things illegal when you put them together?

This is the kind of thing that average people wonder about the law when they have a naive view of the law as a set of technicalities that can be outfoxed with clever word games. There are all kinds of legal activities that become illegal when you put them together, for quite obvious reasons. It’s legal for me to put hydrochloric acid in a bottle, and it’s legal for me to put a label that says “Grape Soda” on a bottle. It’s illegal for me to put a label that says “Grape Soda” on a bottle full of hydrochloric acid. A closer analogy: it’s legal, though immoral, for me to get up in front of a bunch of elementary school kids and say “Smoking is great for you!” But it’s illegal for me to accept money from a cigarette company to get up in front of a bunch of elementary school kids and say “Smoking is great for you!”


2 Comments so far
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Matt, I found the New Yorker piece puzzling, but interesting to ponder. In a way, all kinds of legal documents could be seen as blackmail–employer confidentiality clauses, severance agreements, prenups. There are certainly many situations where people are paid to be silent. I think the point of this story–which, you’re right, didn’t really hold together–was: When is it blackmail, when business as usual?

Comment by Susan Toepfer

Susan, that’s an interesting thing to think about, though I’m not clear on how prenups can be seen as blackmail. Confidentiality clauses seem closer to the mark. But one crucial difference is that such clauses are agreed upon at the outset of a contractual relationship, and in that sense they are (in theory anyway) encouraging people to undertake productive activities they wouldn’t otherwise engage in because the risk is too high. In contrast, blackmail is all retrospective: you’re just threatening to hurt someone if they don’t pay you. As with other forms of extortion, there’s nothing useful to society or the economy about that. In that sense the “business-as-usualness” of the activity itself constitutes a major difference: when it’s business as usual, you’re talking about agreements between parties about what kinds of information it is or isn’t appropriate to release, that guide their joint behavior, be it social or economic.

I think Widdicombe’s starting example, of “Citizen Kane”, also involves a characteristic confusion: people often overlook the ways that the legal system routinely considers motive in determining whether or not behavior is criminal. It’s perfectly clear that Orson Welles didn’t make “Citizen Kane” with the intent of blackmailing Bill Hearst. Neither did the studio. If Hearst were to come along and offer the studio a million bucks not to distribute the movie, it would seem legal for the studio to accept the offer. If the studio began to develop a habit of making insulting movies about thinly disguised versions of public figures and then accepting money not to distribute them, that would be evidence of motive, and the verdict might change.

Comment by Matt Steinglass

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