It can be hard to explain why blackmail is wrong

This article first appeared in The Edge Financial Daily, on February 11, 2019.
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I am not sure why anybody, even the National Enquirer, would pick a fight with the richest man in the world. It is one thing to write about Jeff Bezos having an affair. That kind of story has long been the Enquirer’s vile stock in trade. But to threaten Bezos unless he calls off the dogs — that is, reins in his own investigation of how the tabloid got its hands on his private text messages — well, that is a mistake no self-respecting merchant of sleaze should make. Like the song says: You don’t tug on Superman’s cape.

That is particularly true in a case like this one. If the facts are as Bezos describes them, then what the Enquirer has attempted certainly looks like blackmail. The emails from the tabloid that Bezos published at Medium demand that he drop the investigation or face publication of explicit photographs.

That would seem to be a textbook example of demanding a thing of value in exchange for refraining from an act that would damage his reputation — exactly the elements every budding lawyer learns for the bar exam.  Sure, the Enquirer denies that it has done anything illegal. What choice does it have? Even those of us who are hard-line free-speech supporters have to concede that the tabloid has crossed the line.

But blackmail is a funny crime: Theorists have trouble explaining exactly why it is wrong, even though it seems intuitive that it is. A couple of examples will make the point.

Suppose Mastermind says to Victim: “I have uncovered some embarrassing facts about you. I’m going to publish unless you give me US$10,000 (RM40,690).” That is usually considered a crime. Now suppose instead Mastermind says to Victim: “I have discovered embarrassing facts about you. I’m going to publish them.” That is not a crime. Suppose further that Victim says to Mastermind: “Wait! I’ll give you US$10,000 if you don’t publish them!” If Mastermind accepts Victim’s offer, that is also not a crime.

See the difficulty? Blackmail laws prohibit threatening to do an act that is not criminal. For this reason, scholars have spent years trying to puzzle out a set of blackmail-like threats that should not be illegal. For example, Einer Elhauge of Harvard Law School has suggested that “uncontrived” threats not be prosecuted. These are, roughly, threats to do legal things that the threatener would likely do if the threat had never been made.

His prescient example is a reporter who has come up with “non-criminal embarrassing information”. If the subject decides he would rather pay then let the information become public, that is all to the good: “An agreement to suppress the information is in the interests of both contracting parties, because the victim prefers paying the money to having the information divulged and the blackmailer prefers getting the money to revealing the information.”

The only people who might be harmed by the agreement, Elhauge argues, are third parties who would otherwise be able to discover the embarrassing information. But when the information is salacious, he correctly notes, the public interest is lowest. Statutes that outlaw these deals, he says, are “overinclusive”.

Elhauge is far from the only theorist to suggest limits on what counts as illegal blackmail. What is striking is how little influence these critical views have had on public policy. There is no constituency in favour of softening blackmail laws, even to allow agreements that leave both parties better off. Why not? Perhaps the Bezos case provides an answer.

The traditional economic analysis of blackmail holds that restrictions are needed because otherwise parties would overinvest in uncovering embarrassing information for the sole purpose of seeking payment not to publish it. By publishing the emails from the Enquirer, in all their grimy detail, Bezos is arguing that this is such a situation. The salacious photographs the Enquirer has threatened to publish have little value other than as a club to hold over his head.

Reading the emails, moreover, one has the sense that the tabloid was searching, rather desperately, for that club. Bezos’s investigation into how the Enquirer wound up with copies of private text messages seems to have stirred things up. Thus the blackmail is not a simple request for cash in return for staying silent; it is an effort to quash a process that has the editors running scared.

I do not suppose any journalist, at any point on the food chain, would much enjoy being investigated by the subject of an article. If this were anyone other than the Enquirer, I imagine that many in the news media would be decrying the intimidation attendant upon Bezos’s search for the tabloid’s source. But they would be wrong. A subject has as much right to look into a reporter as a reporter does to look into a subject.

Now the Enquirer does not dare publish, because doing so would look vindictive. The tabloid’s parent company has promised a full investigation of whether anything illegal occurred — which is pretty much running up the white flag. Maybe it is time for a victorious Bezos to offer the Enquirer a deal: I will drop my investigation if you promise never to mention me or any of my loved ones again. No doubt the Enquirer would cry foul. But the contract would leave both parties better off.

i) Many jurisdictions make an exception if there is a close nexus between the thing demanded and the thing threatened — “Admit paternity and pay child support or I’m going public!” — but that does not apply here.

ii) In my seminar on Law, Secrets, and Lying, I teach a similar theory about the proper limits of blackmail law. I often discuss the issue in my contracts class as well. — Bloomberg

Stephen L Carter is a Bloomberg Opinion columnist. He is a professor of law at Yale University and was a clerk to US Supreme Court Justice Thurgood Marshall. His novels include The Emperor of Ocean Park, and his latest non-fiction book is Invisible: The Forgotten Story of the Black Woman Lawyer Who Took Down America’s Most Powerful Mobster.