The crime of blackmail: A libertarian critique

There is something deeply paradoxical about laws that criminalize blackmail. How is it that, as Glanville Williams put it, "two things that taken separately are moral and legal whites together make a moral and legal black"?(1) For the crime of blackmail involves the criminalization of two otherwise legal acts when they occur in combination -- for example, the threat to disclose damaging information about another, and the offer to refrain from disclosing it for some valuable consideration. Were Alfred to (threaten to) disclose damaging information concerning Bill's extramarital affairs, no offense recognized by law would be involved (even if there were something distasteful about such gossip); were Alfred to ask Bill for $5000, again there would be no contravention of any proper law (even if it displayed a degree of chutzpah). But were Alfred to threaten Bill that he would disclose information concerning Bill's extramarital affairs unless Bill paid him $5000, his two part act would--under current laws--constitute the crime of blackmail. Why should the conjunction of such otherwise legal acts have an entirely different legal status?(2) The paradox is heightened when we consider the reverse situation. Bill learns that Alfred is in possession of damaging information concerning him. He seeks Alfred out, and offers him $5000 to keep silent. If Alfred accepts Bill's offer, and subsequently keeps mum, he should not be held to have blackmailed Bill. Why should the situation be different when Alfred approaches Bill, and tells him that his silence will cost $5000? This is the heart of the libertarian critique of blackmail laws, and in this essay I propose to defend that critique against a number of arguments that have been advanced to justify them. Although my critique of such laws depends ultimately on my belief that criminal prohibitions are justified only when some material threat is posed to another (by means of force, fraud, or theft), my arguments here will show that various attempts to avoid or account for the paradox do not succeed, even on their own terms. Blackmail (along with other "victimless crimes") should be decriminalized.(3),(4) Some Definitional Preliminaries Although standard instances of blackmail involve a threat to disclose damaging information if some monetary payment is not made, the range of possibilities is somewhat wider. Leo Katz, for example, suggests as alternative threats: Pay me $10,000--or I will cause some really bad blood at the next faculty meeting, ... seduce your fiance, ... persuade your son that it is his patriotic duty to volunteer for combat in Vietnam, ... give your high-spirited, risk-addicted 19-year-old daughter a motorcycle for Christmas, ... hasten our father's death by leaving the Catholic church.(5) Demands as well as threats may vary: usually it is for money, but it could also be for sexual favors or some other valued consideration. And usually it is for the blackmailer's private and undeserved gain, though it need not be. Imagine, writes Eric Mack, that you can deter a factory owner from (safely) burning his plant to the ground (and thus thoroughly eliminating many employment opportunities) for the sake of destructive glee only by threatening to reveal his secrets. Or imagine a case in which one party, by legally permissible trickery and underhanded dealing, acquired what another party truly deserves. Wouldn't it be perfectly moral for the morally deserving party to blackmail the first party into transferring that valued good--especially if what was threatened was precisely the [revelation] of the trickery and underhandedness?(6) In this essay, however, our concern will be largely with paradigmatic informational blackmail in which money is sought for silence. Blackmail should not be confused with extortion. In the latter, a threat to do something that would otherwise be illegal is made in demanding something from another: If Charles threatens to break David's knees or burn down his house if David does not give him $5000, Charles is guilty of extortion, not blackmail. …