October 2, 2009

Why is blackmail illegal?

From The Independent:

ONE morning in December 1824, the Duke of Wellington received an unpleasant letter. 'My Lord Duke,' it began, 'in Harriette Wilson's Memoirs, which I am about to publish, are various anecdotes of Your Grace which it would be most desirable to withhold, at least such is my opinion. I have stopped the Press for the moment, but as the publication will take place next week, little delay can necessarily take place.'

The letter, signed by one Joseph Stockdale, a pornographer and scandal-monger, was a naked attempt at blackmail. The Duke was a field marshal, cabinet minister, national hero, husband and father, while Harriette Wilson was a famous London courtesan past her prime, then living in exile in Paris. Wellington was being asked to pay money to be left out of her memoirs.

His response is famous: 'Publish and be damned!'

If David Letterman's lady friend staffer had threatened to sue for sexual harassment, but her lawyer told Letterman's lawyer that she'd be willing to sign an agreement promising never to say a word about the affair in return for a $2 million settlement, that would be perfectly legal, right? I mean, the law encourages people to threaten to sue their bosses for sexual harassment, right? And the law also encourages the parties to settle out of court, and promises of secrecy in return for money are legally enforceable, right?

What if the blackmailer instead of threatening to write a screenplay about a horndog talkshow host had actually written the screenplay and submitted it to David Letterman as a film to be produced by Letterman's Worldwide Pants production company, and Worldwide Pants could buy up all rights to it for just $2 million. (It probably wouldn't be that much worse a screenplay than the Strangers with Candy screenplay that Worldwide Pants did produce a few years ago.) I kind of seems like Mr. Halderman got himself arrested for being in a hurry to get paid, for not being suave about his approach.

Is the difference in the Letterman deal that a nosy third party is involved? Fair enough, but that doesn't seem to be the principle involved in the Bill Cosby case.

Bill Cosby's image is all very grandfatherly now, but my recollection is that he seemed to spend most of the 1970s hanging out at the Playboy Mansion. But everybody else seems to have forgotten. In the 1990s, a woman was convicted and sentenced to five years in jail for asking Bill Cosby for money in return for not selling her story to a supermarket tabloid that she was (at least according to her mother) Cosby's daughter.

When Autumn Jackson got sent off to prison for five years, CNN reported:
The judge in the case ruled that Cosby's alleged paternity was irrelevant and that the real issue was whether the defendants committed extortion. Cosby testified he had sex once with Jackson's mother but denied being her father.

A 1997 NYT article explained:

At one point during closing arguments, Mr. Baum told the jury: ''Autumn Jackson had a right to sell her story. Autumn Jackson had a right to ask her father to negotiate a settlement of her rights. ''Two rights don't make a wrong,'' he added.

But prosecutors say that two rights do make a wrong, when they constitute a threat to harm someone's reputation, accompanied by a demand for money. The disagreement highlights an age-old legal debate about what one lawyer calls the paradox of extortion and blackmail (the terms are often used interchangeably). [Although they shouldn't be. Extortion is "Give us money or we'll do something illegal to you." Blackmail is "Give us money or we'll do something legal to you."]

''The reason blackmail has exerted fascination for scholars is that it's a profoundly mysterious offense,'' said Leo Katz, professor at the University of Pennsylvania Law School and author of the book, ''Ill-Gotten Gains: Evasion, Blackmail, Fraud, and Kindred Puzzles of the Law.''

''What makes it mysterious is that you are threatening to do something which you are perfectly entitled to do, and you are asking for a benefit in return for not doing it,'' he said.

James Lindgren, a law professor at Northwestern University who has written extensively on blackmail and extortion, said: ''It's hard to see when you're doing things that individually are not wrong. It's not wrong to go to the tabloids, not wrong to make public claims about someone being your father, not wrong to ask for money.

''What's wrong,'' he said, ''is when you use the explicit leverage of public disgrace to get what you want.''

Some economists and lawyers have debated why blackmail and extortion are crimes in the first place. Paul Shechtman, a former top Federal prosecutor in Manhattan who performed an economic analysis of blackmail with Douglas H. Ginsburg, now a Federal Court of Appeals judge, found an economic rationale for keeping it a crime. Legalizing blackmail, he said, would spawn an entire industry that would dredge up secrets to conceal again for a price.

''As a general matter, it's not in anybody's economic interest to have people dig up dirt and rebury it,'' Mr. Shechtman said.

In any case, the extortion and blackmail riddle has not given prosecutors much pause. ''Prosecutors have been prosecuting, blissfully ignorant of the debate,'' Mr. Shechtman said. And they have been winning convictions as well.

Take another example: former Bush speechwriter Matthew Latimer is getting a lot of praise and a lot of denunciations for telling backstage tales from the Bush White House. Is he right or wrong? Well, I think it depends on his contract, written or oral. Let's say he's asked to come work as as a speechwriter for X dollars per year, but there's a stipulation that he never write about it. If he asks for 1.5X in return for accepting that stipulation never to profit off backstage secrets of the Bush Administration is he demanding blackmail (in a prepaid form)?

Or, how about this: Let's say your dad is, I don't know, let's pick a name at random ... Barack Obama. A book agent tells you that he could get you a $3 million book deal for the story of your life and, as in Tristam Shandy, your conception, which you have a detailed account about in your late mother's diary, which you've recently inherited.

You'd like the $3 million, but you'd rather not have all the publicity (and you'd rather not have to do the work of writing the book). And you would rather not cause your father, whom you voted for, any political damage (especially if, say, your mom, Natasha Gromyko, was your dad's KGB controller operating out of the Soviet Mission at the UN in 1983-1985, and you'd just as soon not open that whole can of worms. I mean, like, the Cold War is so over.) So, wouldn't it be better for both you and your dad if you came to some quiet agreement where in return for, say, $2 million you'd agree to never tell?

How about, instead, if you were thinking about writing a book entitled, My Dad, Barack Obama, and he got wind of it and called you and offered you $2 million not to finish it? That's legal, right?

How about if you sent him a birthday card mentioning you were thinking about writing your autobiography (precocious autobiographical tomes run in the family!) and he called back and offered $2 million if you wouldn't publish it? That's legal, isn't it?

How about if you called him and told him your plans to write a book, and then said, "But, I'm thinking about a number ..." And then he said, "Let me guess, two million dollars." And then you said, "Dad, you can read my mind!" Is that legal?

What if you weren't thinking about writing a memoir at all, but one day in December 2007, Valerie Jarrett knocks on your door with a satchel of cash and a contract to never write your memoirs. Is that legal?

Kind of seems like the law is "Don't mess with popular celebrities."

But wouldn't that be backward? It would seem like there would be a public policy interest in the public learning more about the personal character of highly influential people like Bill Cosby, David Letterman, or the Duke of Wellington, just as the libel law since 1964 makes it harder for public figures to win a libel suit. It would seem like that's the answer to Shectman and Ginsburg's critique: that the legal distinction between public figures and private figures be extended from libel law to blackmail law. The public has an interest in learning more about the those who play major roles in public life, while those public figures also have a private interest in not having facts be learned. Between the two interests, the law should be neutral. Let the marketplace reign.

Or maybe it's just that the law frowns on people who try to cut out the lawyer middlemen and deal directly with their opposite numbers.

P.S. What if your book, My Dad, Barack Obama, happened to contain the true stories of how both of your dad's main Democratic and Republican rivals in the 2004 Illinois Senate race happened to have their scandalous divorce papers publicized, forcing them to withdraw?

My published articles are archived at iSteve.com -- Steve Sailer

46 comments:

Lexington Steele said...

Because it's so huge.

Harry Baldwin said...

Or how about this one: Mr. Obama, you don't know me, but I've actually read your autobiography cover to cover and I'm going to translate parts of it into plain English and draw logical inferences based on your own self-revelation which hitherto no journalist has paid any attention to. You may not find it--shall we say?--flattering.

Would that be worth 2 million dollars? (If not, I'll self-publish it and sell it on my blog.)

Bill said...

Good question.

Maybe people should simply state their intention to go public first out of "concern" for the target, and let them make the first offer.

In the latest case, this blackmail threat played right into Letterman's dirty hands. His audience was cheering him when he announced he was screwing his staffers.

Way to go, you ugly, creepy old bastard!

All I can say is that I hope Letterman gets roasted for this. The guy is obviously scum, and I've always hated his snarky show. In fact - and I usually would never wish this on a man - I hope his wife divorces him and seizes his treasure. In all likelihood one of the women he was sleeping with was married, so it's only fair.

Thomas said...

Some types of litigation and settlement communications from lawyers can rise to the level of extortion. A number of years ago, Michael Flatley, the "Lord of the Dance", was threatened in a settlement proposal from a lawyer that he would be sued and accused of rape, publicly in releases timed and placed to coincide with his tour performances, unless he agreed to the settlement. The lawyer's communications were held to be illegally extortionate, and were thus not protected as an attorney's litigation-related communications for the purposes of an anti-SLAPP motion to strike. (SLAPP is Strategic Lawsuit Against Public Participation, a type of lawsuit defined by law as intended to retaliate against certain legally-protected communications, that California law allows a defendant to get thrown out of court in the early stages of litigation.) Flatley later collected settlements against both the attorney and the prospective plaintiff for their attempt.

Bill said...

You'd like $2 million, but you'd rather not have all the publicity, and you would rather not cause your father, whom you voted for, any political damage (especially if, say, your mom, Natasha Gromyko, was your dad's KGB controller operating out of the Soviet Mission to the UN in 1984, and you'd just as soon not open that whole can of worms. I mean, like, the Cold War is so over.)

Steve, I know Andrei Gromyko's granddaughter (really -- she used to live in Seattle). There's no way in hell she's Obama's daughter.

l said...

Just where the line might be is confusing, but some people/groups have thrived using extortion. For example, Jesse Jackson's Operation PUSH filled its coffers by threatening businesses with bad PR and boycotts.

Drawbacks said...

What if you're offering to (continue to) cover up a crime in return for a payment? Arguably it's your civic duty to tell the police.

Anonymous said...

"I don't understand why prostitution is illegal. Selling is legal, fucking is legal. So, why isn't it legal to sell fucking?"
-George Carlin

James Kabala said...

I don't know; I kind of have the conservative instinct that if something has been illegal since time immemorial, there's probably a good reason for it. Tradition is the democracy of the dead, respect the wisdom of the ancestors, and all that.

It's interesting that since the Sexual Revolution, more people, such as both Letterman and Rick Pitino, can afford to take the risk of going to the police. Someone who blackmailed Jack Paar or Red Auerbach (not saying they had anything to hide, just using them as 1950s-era equivalents) would likely have become a rich man, because their careers could not have survived such revelations. Pitino and Letterman knew they could take a risk. Wellington was ahead of his time.

Rising Wolf (formerly Katto) said...

I get the feeling Steve is on the trail of a really spicy bit of news about Obama's early years, and he's dropping hinted requests for investigative help.

James Kabala said...

In fact, as I think about this, I realize you have it all completely backwards. The blackmailer's interest is not in exposing the celebrity's vices to the public, but in keeping them secret. The blackmailer is perfectly happy to let the blackmailee take his dirty secrets to the grave, as long as he (the blackmailer) gets money out of it.

If the blackmailer really had the goal of exposing the celebrity, then he would take the book deal rather than the blackmail in the first place. If you had done as Harry Baldwin jokingly suggests above and blackmailed Obama successfully, the public (or at least isteve readers) would know less about him, not more. In the same way, if blackmail were legal and as a result routine, we would know less about celebrities, not more. Blackmail promotes secrecy, not exposure. Your scenario is all backwards.

Anonymous said...

"I mean, like, the Cold War is so over."

Steve, that whole Gromyko bit was very funny.

Anonymous said...

"Way to go, you ugly, creepy old bastard!"

I've always thought Letterman was kind of cool. And those women could well have flung themselves on him, not the other way around. I mean, he's famous. I'm sure even Larry King's wives all thought he was hot. He's rich and famous - what more does a woman need to be genuinely attracted to a man?

neil craig said...

The reverse would be that the parts of out of court settlements which involve silence should be unenforceable.

When Engulf & Devour come to an out of court settlement with the owners of brain damaged puppies the bit saying what the payout was would then not go public. While that suits the payer & doesn't harm the payee it does seem not to be in the public interest & there is thus no reason why the law should enforce it.

So long as courts will enforce a contract demanding silence while imprisoning people who offer silence for gain whether you are committing a crime or entitled to the support of the law will depend on when you consulted a lawyer.

juan_m said...

Thanks, Bill, for demonstrating that something good has come out of Soviet diplomacy!

quimbus said...

It probably wouldn't be that much worse a screenplay than the Strangers with Candy screenplay that Worldwide Pants did produce a few years ago.

Oh, harsh, Steve, harsh. I thought you might have a soft spot for Strangers with Candy because of that subtle HDB joke that pops up in the middle, where the science teacher is picking out the best students from his class to produce a winning project for the science fair. He groups the Jews and the Koreans together and then adds Jerri's schlubbly Indonesian pal, stipulating that he is a "wildcard." This seems to be a joke on the seeming incongruity a person can experience when trying to square Indonesians, and more generally other southeast asians, with the generalization that "Asians are smart," that while they are Asian, Indonesians don't have a particular reputation for being notably bright, in the sense of overepresentation in scientific fields and careers (a fact consistent with there national IQ averages being about 10 points below those of the asian tigers.)

The TV series on which the movie is based did a good job of poking fun at the racial sensitivity hysteria of the 90s, this scene is a particularly nice lampoon of the "challenging stereotypes" mantra.

http://www.hulu.com/watch/62500/strangers-with-candy-youre-a-racist

Fellow Traveller said...

Perhaps The Daily Telegraph of London ought to have spoken with the Iranian President privately before publishing this piece on his possible Jewish ancestry: Mahmoud Ahmadinejad revealed to have Jewish past

Will Israel extend him the right of return?

Anonymous said...

Celebrities aren't the only people who can be blackmailed. Law isn't mathematics, and it doesn't have to make rigorous logical sense. Blackmail is illegal because nobody wants to be blackmailed, and few people have sympathy for blackmailers.

Of course it all depends on who is making the laws, and whose interests the laws serve. In many places and at many times telling a damaging truth about a powerful person has been a good way to get yourself jailed or executed, whether or not extortion was involved.

Anonymous said...

One point in defense of criminalizing blackmail is that if blackmail were legal it would encourage a lot of false allegations (e.g., I'll spread rumor X about you if you don't pay me Y dollars).

Anonymous said...

Andrei Gromyko's granddaughter

Is she single?

Anonymous said...

I always thought extortion and blackmail were different. Isn't extortion when a hard working shopkeeper pays a monthly "fee" to some gangster so "nobody" will burn his store down? Isn't blackmail really just public humiliation? Assuming the "dirt" is TRUE, shouldn't the "victim" suffer the consequences of their actions? If they want to pay to keep their indiscretions private shouldn't they have that as an option? I have far more sympathy for the shopkeeper, who is a real victim, then for a spoiled, egotistical celebrity, who is guilty of the things being said about him.

Concerned Netizen said...

A male dancer is probably happy when a female sues him for sexual harassment. Who knows, maybe he paid HER to say that.

Meanwhile, back at the ranch, another Obama "czar" is revealed as,um, unfit.

http://www.washingtonexaminer.com/opinion/blogs/beltway-confidential/Obama-appointee-lauded-NAMBLA-figure-63115112.html

NAMBLA!

I think that the next 3 1/2 years are going to be almost painful, like Carter 10 million times over.

Rex Little said...

''Two rights don't make a wrong''

This isn't the only case where two (legal) rights make a (legal) wrong. It's legal for people to have sex, and it's legal for one of them to give the other money. But if you combine the two. . .

airtommy said...

Letterman did the GOP a great service in ridiculing Sarah Palin. Dimwits like Palin simply confirm all the wrong stereotypes about conservatives.

MacSweeney said...

I've always hated his snarky show.

You must really hate the comments section on this blog then.

not a hacker said...

I don't feel you Bill. In my mind the reason to become as rich and popular as Letterman is precisely to be able to remove cute young panties that would otherwise be off limits. What makes Letterman scum is that he's a lefty coward who shies away from the really meaty comedy targets. By the way Steve, a Bay Area radio host named Gary Radnich, who started in Vegas, occasionally reminisces about how notorious the married Cosby used to be with the showgirls.

Dutch Boy said...

Blackmail probably ought to be civilly rather than criminally actionable (it would at least prevent serial blackmailers from becoming wealthy).

Anonymous said...

especially if, say, your mom, Natasha Gromyko, was your dad's KGB controller operating out of the Soviet Mission at the UN in 1983-1985, and you'd just as soon not open that whole can of worms. I mean, like, the Cold War is so over.

Whoa, holy cow Steve, do you have one of the most amazing scoops ever or are you just pulling our chains?

Are you saying in a roundabout way that Obama fathered an illegitimate kid in the mid 80's (while working as a spy for the Communists!) ???

PLEASE, PLEASE let it be true...PLEASE tell me you have some DNA my man...you would be a GOD

kudzu bob said...

The next time that Malcolm Gladwell comes out with another book, contrive to get hold of a reviewer’s copy and pore over it for the sorts of errors that only you can spot. Then email the author a list of said mistakes, along with an offer never to bring his essential cluelessness to light, in exchange for a reasonable, um, consultant's fee. Don’t think of it as blackmail, but rather as an act of compassion towards a fellow writer.

Anonymous said...

sex - its OK to give it away but its against the law to sell it. Human organs, ok to donate, a crime to sell your own. I think its pretty clear why. Money is a powerful motivator. I think Szatz said between addictive drugs and money, money is porbably the more powerful motivator. If you allowed a market in sex or human organs the transactions would look mighty different than if you disallowed such a market.

As a society we do not want to increase the incentives for casual uninvolved sex (given mental and physical hygine) and we don;t want to incentivize organ donarion, not because we don;t want more donations but because we don;t want people to have to forgoe a reward just to keep their body intact. And we don;t want a market for silencing crime witnesses or to make you forgoe 2 mil to do your civic duty.

Whiskey said...

It's unlikely Obama would have been recruited as a Soviet Spy. What benefit would a low-level "community organizer" have, unless of course he was involved in Mosques of interest to the late Soviet regime, i.e. tied to the jihad movement.

Other than that, what value would Obama bring that a perusal of say, Farrakhan's newspaper would bring, at a fraction of the cost?

Jonah Falcon said...

" Lexington Steele said...

Because it's so huge."

Lame. Just stop.

rob said...

Why? Let's see. Legislators write laws and have secrets. Judges really make law and have secrets.

Potential blackmailers can't compete with that.

Anonymous said...

"Selling is legal, fucking is legal. So, why isn't it legal to sell fucking?"




Not all selling is legal, nor is all fucking. George Carlin was never the sharpest knife in the drawer.

Anonymous said...

Steve- Strangers with Candy the series was ground breaking and hilarious- movie sucked though, granted. the way she used to talk about her Phillipino friend Orlando-

"Orlando, you can't be a pilgrim. The pilgrims had snowy white skin to match their pure Christian souls. They didn't sacrifice coconuts to their monkey gods."

or

"greeks are just jews w/out money. to Orlando after he says that the Faganocouloses are good people

reminds me of the old PJ O'Rourke article

Amy Sedaris is one of only 3 funny women on the planet- Laura Kightlinger and.... I guess there's only 2.

Dan in DC

Anonymous said...

"Kind of seems like the law is "Don't mess with popular celebrities."“

The prohibition against blackmail is a category of the prohibition against intentional infliction of emotional distress.

The damage it is trying to prevent is emotional distress.

Also, it probably wouldn't be economically efficient for people's productivity to suffer after suffering severe emotional wounds and perhaps suicide.

No, I am not a woman.

Anonymous said...

Quoting George Carlin on this blog...c'mon we're better than that...as Krusty the Clown said about RayJay Johnson- that guy was funny for about 5 minutes

RIP...he's dead right?

Dan in DC

Anonymous said...

Did anyone see Letterman dip his oft used pen into Bill O'Reilly's drink before he came out as a GUEST on his show. Unfnbelievable- what a weird, disturbed dude.... and the audience loved it those c###suckers... top ten lists are still funny but that show lost it when Chris Elliott left

Dan in DC

Anonymous said...

Well, excuuuuuuse me Quimbus (Steve Martin), I didn't know we were allowed to link to Hulu to prove our points- I didn't see the clip but is it the one where Principal Blackman says, "yes i'm a black man and i'm dressed up like an astronaut, does that disturb you?" Fn hilarious. That is some of Tim Meadows' best work btw. The first 2-3 seasons of SWC (that's what people in the know call it) are right up there with AD (Arrested Development).
Often surprised me with what they could get a way with- that teacher you mentioned in SWC was Stephen Colbert btw- he was outshined outshone by another comedic actor who has NOT made it big- Paul Dinello- here's wishing him the best. Colbert was really funny on the show too but I cant watch that smug show he does on Comedy Central- we get it - everything you say is tongue in cheek....he needs an ass kicking- and so does Bill Maher btw, smug prick- if and when I see him it is on- I'll just pretend to bump into him and then fake an argument and then BAM- fists of fury....note to self- book Greyhound tix to NYC stalk Bill Maher

Always Sunny in Philadelphia has been really funny this season as well.

If you want to learn more about astronauts, the Liberty bell, vigilantism or human bio-diversity then visit your local library.

Dan in DC

Bill said...

Anonymous said...

Andrei Gromyko's granddaughter

Is she single?


Now? I have no idea, but I seriously doubt it. She was dating a Russian hockey player who lived with a somewhat unhinged but brilliant Irish friend of mine when she was in school. She was also friends with my ex's Russian coworker at the time.

What I remember about her is that she is a very classy girl and a pleasant person to be around.

Parsi said...

"Your dad's KGB controller operating out of the Soviet Mission at the UN"

Sergei Tretyakov might know the identities of Soviet agents-of-influence recruited in New York in the years before he became the senior SVR[KGB] officer at the UN in the mid 1990s. There's a good book about him (Comrade J) by Pete Earley. Tretyakov is a US citizen now.

Truth said...

"....note to self- book Greyhound tix to NYC stalk Bill Maher"

Note to you- Maher has taped his show in LA for years.

Second note to you- don't go out there to get your ass kicked by a snarky crypto-Jew. You conservatives can't fight a lick.

second opinion said...

"Letterman did the GOP a great service in ridiculing Sarah Palin. Dimwits like Palin simply confirm all the wrong stereotypes about conservatives."

She's no dim wit. I avoided listening to the speeches etc. during the campaign because I knew the fraud was going to win. Already had it locked in, and niether candidate appealed to me. However, after the dissing on this blog about Palin, I went back over interviews, speeches, and recent appearances. The woman can actually speak about issues which we have learned the current POTUS cannot do (I always knew that, but a lot of people seemed to be true believers.)
So. I wouldn't write her off though the forces of darkness are certainly arrayed against her. She walked away from a governorship--I don't know if that's good or bad.
But I'll tell you. Her 7 year old, talking about missing school, sounded more sensible than what we've now got in the WH.

ettore said...

Steve, saw this today?

http://www.nytimes.com/2009/10/04/weekinreview/04schwartz.html?_r=1&scp=1&sq=wellington&st=cse

The New York Times is shamelessly plagiarazing you

Truth said...

"She walked away from a governorship--I don't know if that's good or bad. "

Walking away from a governor position because it got too tough when you want to be president..er...I don't know if that's good or bad either..of course I have a hard time adding 2+6.

Christopher said...

Why is anything illegal?

Because it's immoral. (Malum in se.) Or because it just makes things run better if we set it up to prevent that thing. (Malum prohibitum.)

http://lasalettejourney.blogspot.com/2005/03/gossip-and-slander.html