Friday, October 02, 2009

Should Blackmail Be a Crime?

You've probably heard the big story about the attempted blackmail of David Letterman. A CBS News producer threatened to release information about Letterman having had sexual relations with some of his female staff unless Letterman paid him $2,000,000. Letterman told his lawyer,
his lawyer set up meetings with the would-be blackmailer and contacted the authorities, and the end result was that the blackmailer was arrested after Letterman testified before a grand jury. Then, last night, Letterman disclosed all of this during a segment of "The Late Show."

I don't know when Letterman, who recently married a woman with whom he's been involved for over twenty years and has one child with her, had these sexual encounters with female staff members. And my purpose in bringing up this story is not to discuss the morality of his sexual
behavior. I want to discuss something else.

First off, I'm glad he reported the blackmail attempt to the authorities instead of paying the money. I despise blackmail, and, if there's going to be a law against it, then I want it socked to anyone and everyone who tries to perpetrate it. But, having said that, when I ask myself if
blackmail should be prohibited by law, I feel a little perplexed. Why? Because, if you really think
about it, even though blackmail seems morally reprehensible, does its egregiousness rise to the level of criminality?

Well, obviously it DOES rise to it in the sense that it IS a crime. But SHOULD it be a crime? After all, if the guy who tried to blackmail Letterman had simply released the information he threatened to release without demanding money not to release it, there's no law against THAT.
So, why IS there a law against the extra component of asking for money not to release the information?

Of course, blackmail is a form of extortion. But extortion can include threatening to do something ILLEGAL to someone if one isn't compensated in some way for not doing it. But, again, releasing information to the public about an adult's sexual escapades is not illegal in and of itself, so why should threatening to do something legal if one isn't paid not to be a crime?

I'm not saying that I feel convinced that there shouldn't be such a law. On an emotional level, I'm glad this guy got arrested, and I hope he spends the next few years in prison and that others are deterred from trying to do what he did. But, on an intellectual level, I'm not sure I
can justify making blackmail a crime. Can you?

What do you think?

14 comments:

Mary Lois said...

Tricky point! I can't defend blackmailing, and my first reaction is that it should be a crime. But thanks to this post, I'll think about it.

Nagarjuna said...

Mary Lois, I agree that it IS a "tricky point." I used to just take its criminality for granted, but I recently began to question it, and yesterday's "big story" just brought those questions back to mind.

Coonhound said...

If a person blackmails another person over a criminal act, then the blackmailer is profiting from a crime already committed. That action would be criminal for reasons of conspiracy and association.

Blackmail by threatening one's reputation would appear to be a moral issue, unless the blackmailer has schemed a lie in order to profit. Using false data, or bearing false witness to blackmail, definitely would be criminal, too.

So, assuming that no criminal act has been committed prior to the blackmail, and that there is a moral issue based on true and verifiable facts...should blackmail be criminal...

I belive it should be criminal because the nature of this tactic is oppressive, not just morally wrong.

Tom Armstrong said...

I've been thinking a lot about this post and its comments.

If Letterman had said to the blackmailer, "I won't pay you the money you ask, and if you now were to release the information about my antics, I'll report you for attempted extortion." Would Letterman's words be extortion? Blocking scandalous information that shows Letterman to be a hypocrite from getting to the public?

And what would happen if, instead, the producer/blackmailer had suggested that he and Letterman draw up a contract where he would only be paid if no information - from any source - of Letterman's escapades reached the public, guaranteeing that the producer's actions in doing nothing benefitted Letterman. And, the producer could show he was poised to receive $2,000,000 from the National Equirer if Letterman wouldn't pay. Then, wouldn't "the blackmailer" clearly be offering Letterman a deal that might be to his benefit in paying the $2 million? Would there be taint of extortion/blackmail, then?

I've also been thinking about what rights the public has, here, and in other cases where suppression of information is in play. What all which is of interest to the public ought to be suppressable!?

Let us say an infant dies from a cancer-causing substance in his teething ring. Is it OK for the maker of the 'ring' to settle with the infant's parents and for part of the deal to be that evidence of cancer-causing substances in the maker's products to be suppressed?

All of this is a conundrum wrapped in an enigma that causes my head to spin.

Nagarjuna said...

Coonhound, you make a good point about blackmailing someone over a criminal act. I can see where if the blackmailer criminally withheld information about a crime in order to be compensated for that withholding, this would not only be the crime of withholding information about a crime but also the crime of attempting to profit from another person's crime.

On the other hand, I don't follow you when you argue that blackmailing someone over legally obtained true information that if legally released could merely harm that person's reputation constitutes a crime because it's "oppressive." Why should threat of a legal act be criminalized just because its coercive or oppressive? That's the issue I'm wondering about.

Coonhound said...

Nagarjuna,

I see it oppressive in nature because the blackmailer is exerting force in the form of a threat in order to gain something that he otherwise would not have a justifiable right to legally.

Nagarjuna said...

Yes, Coonhound, I understand why you see it as an "oppressive" exertion of "force." But what I keep having trouble understanding is why exerting force consisting of a pledge to do something legal--release legally obtained information in a legal manner-- if certain conditions aren't met rises above mere immorality to the level of criminality. There is no threat of bodily harm or any other illegal action against the target of the threat. The perpetrator is simply saying, "If you don't pay me, I'll go public with this information."

I guess this is one of those areas where you either get it from the outset or you don't. And I just don't get it.

Coonhound said...

Ok, maybe I'll reflect some more on it....


But, Nagarjuna, keep in mind that the blackmailer simply does not want to go public and really doesn't intend to do so. He/she is using the "legal but immoral" information to force somebody to give them something that is not lawfully theirs to have otherwise.

Coonhound said...

Tom said..

If Letterman had said to the blackmailer, "I won't pay you the money you ask, and if you now were to release the information about my antics, I'll report you for attempted extortion." Would Letterman's words be extortion?

****

That would be Poetic Justice!


(Sorry I couldn't resist it:)

Nagarjuna said...

Tom--
Would Letterman be guilty of criminal extortion in the first example? I can see your implied point that if the producer's threat to release damaging information was a crime, Letterman's threat would seem to have the same essential nature, with the added element that Letterman would be promising to withhold information about a crime of attempted blackmail in exchange for compensation of a sort.

I'm not sure I understand the point of your second example. First, how could there be a legal contract of that kind? If blackmail is a crime, then how could one legally contractualize a blackmail arrangement and subsequently enforce it? What's to stop the producer from releasing the info to the NE after Letterman pays him 2 mil and his ending up getting a total of 4 mil out of it? Second, I don't see how the producer's being offered 2 mil from the Enquirer has any bearing on the legal status of the producer's attempted blackmail of Letterman. He's still trying to blackmail Letterman into paying him 2 mil. If that was illegal without the NE's offer, why would it be legal with the NE's offer? I'm probably overlooking some very obvious point, but I confess that I don't see it.

In your final example concerning the lawsuit over the carcinogenic teething ring, I guess the only thing that prevents it from being criminal blackmail is that the court approves it. Otherwise, it bears the same essential ingredients: "If you don't pay me X, I'll release Y." Only, if Y is evidence of criminality o of even tortious conduct, it would seem to be even worse than threatening to legally disclose damaging information about a legal act.

I should probably think all of this out more before posting it. But I just got home from bowling awhile ago and felt like putting this up before I go to bed so I won't lie awake half the night in bed thinking about it. :-)

Tom Armstrong said...

Re the 'contract' idea.

The idea here is that creating a contract can make what seems to be blackmail legal.

"Blackmail" mostly implies that a payment is made, in secret, to prevent a bad deed from being disclosed. The SNEAKINESS of the transaction to keep information undisclosed is the blackmail. If there's a contract, then THAT MERE FACT undermines the idea of blackmail.

So, if a man was poised to reveal, for money, to the National Enquirer, that Letterman was a hypocrite and a womanizer and was coercing his female employees, would it be OK for the man to go to Letterman and NOT sell his evidence to the National Enquirer in exchange for money from Letterman? I would think so! EXCEPT, I worry about the PUBLIC interest in this story. IF it was just Letterman and the man/producer involved (and it seems clear that the women aren't trying to 'out' Letterman for his philandering and hypocrisy) then a transaction for Letterman to keep things quiet seems moral enough for my sensibilities.

But there's this one stickler: I think THE PUBLIC has a right to know. THE PUBLIC's interest isn't being defended.

Nagarjuna said...

Tom,

"The SNEAKINESS of the transaction to keep information undisclosed is the blackmail."

I was under the impression that it wasn't the "sneakiness" of the transaction but the coercive nature of it that criminalized it. And if THAT's the case, it seems to me that drawing up an unenforceable contract and the National Enquirer offer would have no bearing on the case unless, again, I am missing something in what you're saying.

As for the "public interest" being served by disclosing Letterman's "philandering" and "hypocrisy," I don't know that his affairs with staff members were extramarital, and I'm not sure I see "hypocrisy" in them. Yes, he's taken comedic shots at political figures and others who have "strayed" from the straight and narrow path, but I don't know that they've been particularly malicious shots. More importantly, so far as the issue of hypocrisy is concerned, I don't know that he's ever passed himself off as "holier than thou."

Anonymous said...

Of course it should be a crime. Have you heard about these people who go online and find a woman who either already has naked pics online, or they get naked pics through hacking or deception.

Then they get hold of the persons myspace/facebook and threaten to send the photo to their real life family and friends, unless they do something even worse on cam for the blackmailer. Somebody posted a video of it a while back, it was disgusting. Poor woman was sobbing and crying for the pics to not go out and ended up getting naked on cam again to try and stop it.

The sick thing is that even if you do what the blackmailer says, they have the video and share it on the internet, so you lose no matter what.

Nagarjuna said...

Anonymous, if it wouldn't be illegal for a blackmailer to simply post a photo or video that a victim doesn't want posted, why should it be illegal to ask for compensation for not posting it?

If the blackmailer obtained the photo or video illegally or asked that the victim pay him by doing something illegal (e.g., committing murder) in exchange for not having the photo or video posted, I can see charging him (or her) with THAT. But what I continue NOT to understand is why it's a crime to ask for any kind of payment not to do something that's perfectly legal to do if you don't ask for payment not to do it.