Some commentators have recently brought up the perennial question of when speech becomes constitutionally unprotected blackmail. As I’ve mentioned before, this is one of the thorniest conceptual questions in all of jurisprudence. (Our own Jim Lindgren has written oft-cited articles on it, and blogged on it as well.) It’s sometimes called the Blackmail Paradox, and here’s how it goes:
1. I am generally perfectly free to publish embarrassing information about you — in fact, I generally have the constitutional right to do so. (The “disclosure of private facts” tort may constrain this in some instances, but the tort has been read quite narrowly, and much revelation of embarrassing secrets is not tortious and constitutionally protected.) Likewise, I am free to keep quiet about such information.
2. I am generally perfectly free to ask you for money — or to ask you to do something else — 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.
3. But if I ask you for money or a service in exchange for my not revealing embarrassing information about you, 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.
To be sure, 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 (as I mentioned, 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.
Likewise, what if I tell you “If you don’t stop cheating on your wife, I’ll tell her about it”? That too would likely be legally permissible.
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).
Here, by the way, is how the Model Penal Code tries to deal with the issue (§ 212.5):
A person is guilty of criminal coercion if, with purpose unlawfully to restrict another’s freedom of action to his detriment, he threatens to: …
(b) accuse anyone of a criminal offense; or
(c) expose any secret tending to subject any person to hatred, contempt or ridicule, or to impair his credit or business repute ….
(d) take or withhold action as an official, or cause an official to take or withhold action.
It is an affirmative defense … that the actor believed the accusation or secret to be true or the proposed official action justified and that his purpose was limited to compelling the other to behave in a way reasonably related to the circumstances which were the subject of the accusation, exposure or proposed official action, as by desisting from further misbehavior, making good a wrong done, refraining from taking any action or responsibility for which the actor believes the other disqualified.
Some jurisdictions have enacted this largely verbatim, and others (such as the Jackson court) are likely to apply some similar rules in elaborating on the definition of blackmail, precisely so that “give me back that property you took from me, or I’ll call the police” doesn’t become a crime.
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.
This post originally appeared on the Volokh Conspiracy blog and is reproduced with permission and thanks