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While most agree that blackmail — the act of threatening to disclose true, but damaging, (potentially secret) information about a party unless payment is made (to earn silence) — is a criminal act, it poses two interesting paradoxes in the theory of criminal justice.

The paradoxes are as follows:

• The first paradox is that “two rights make a wrong”; blackmail renders two otherwise perfectly legal actions illegal when performed in conjunction with each other. To use the example (albeit slightly modified) from Blackmail and Extortion – The Paradox Of Blackmail: “For example, if I threaten to expose a businessman’s income-tax evasion unless he gives me [sic] X amount of money, I have committed blackmail. I have a legal right to expose and to threaten to expose the tax evasion, and I have a legal right to request for [sic] X amount of money, but if I combine these rights I have committed blackmail. If both ends and means are otherwise legal, why is it blackmail to combine these legal ends and means?”
• The second paradox, persisting with the example above, is: while it is consider blackmail for me to threaten to expose a businessman’s income-tax evasion unless he gives me X amount of money, it is perfectly legitimate for the businessman to voluntarily give me X amount of money (despite I not asking him and not even suggesting that I have knowledge and proof of this tax evasion) to not expose his income-tax evasion; it does not constitute blackmail.

These two paradoxes have been a thorn in the side of jurisprudence for many decades and are yet to be resolved to everyone’s satisfaction. In fact, these paradoxes have inspired a significant minority of scholars and libertarians to advocate for decriminalizing blackmail! Seeing how Wikipedia does not have an article on this issue (yeah, it surprised me too!), I decided to write something up in lieu of it. Let’s take a closer look at each paradox.

Paradox 1: Two rights make a wrong

The crux of the issue is the following. If the threat to commit an act (like murder) is dangerous enough to be criminalized, then the action itself must be more dangerous, and therefore be a crime. However, if an act in itself is not dangerous enough to be criminalized, then it makes little sense to criminalize the threat to commit that act. Paradoxically, blackmail  is criminalized despite the fact that it constitutes a threat to commit an act that is otherwise perfectly legal!

The many justifications for criminalizing blackmail include: it is immoral; it encourages disclosure of incriminating evidence, thus deterring crime; it helps minimize the “victims” from resorting to “self help”, like killing or harming the blackmailer, or even suicide; and so on. Unfortunately, none of these arguments really resolve the paradox. They merely explain how criminalizing blackmail is a good thing, but don’t really explain the nature of blackmail itself and why it should be an exception (and hence trigger the paradox).

It is easy to see why blackmail involving incriminating evidence is criminalized. First, if the blackmailer is withholding the evidence, and worse, profiting from it, then he/she has failed in their moral and civic duty. Second, withhold such information is obstructing justice. Third, profiting from something that presents a danger to public safety is morally reprehensible. But what about blackmail involving embarrassing information that has been obtained lawfully and where the blackmailer is within his/her legal rights to disclose it to public?

Here, it is helpful to examine the relationship between the parties to see how blackmail is different from all other legal threats. Again, to quote from Blackmail and Extortion – The Paradox Of Blackmail:

Consider first informational blackmail. Here the blackmailer threatens to tell others damaging information about the blackmail victim unless the victim heeds the blackmailer’s request, usually a request for money. The blackmailer obtains what he wants by using extra leverage. But that leverage belongs more to a third person than to the blackmailer. The blackmail victim pays the blackmailer to avoid involving third parties; he pays to avoid being harmed by persons other than the blackmailer. … In effect, the blackmailer attempts to gain an advantage in return for suppressing someone else’s actual or potential interest. The blackmailer is negotiating for his own gain with someone else’s leverage or bargaining chips.

Ken Levy from Harvard Law School offers the following arguments in [39 Conn. L. Rev. 1051] to resolve the paradox (while maintaining blackmail as a criminal activity):

Levy argues that while the correlation between the legality of the action and the legality of the threat of the action is strong, it is by no means is a causal relationship. That is, there is no reason to believe that legal threatened action entails a legal threat. Consequently, the paradox is simply an artefact of our bias and not the law itself. But that still does not explain why blackmail should be illegal.

Levy goes on to argue that the reason for this is that right to life, physical well-being, emotional well-being family, liberty, and property constitute what are called “legally protected” interests, and it is in the interest of the people and society that criminal law protect people against any harm inflicted to these interests. This is why acts like homicide, kidnapping, rape, assault, harassment (among many others) and even threats to commit such acts are deemed criminal. So where does that leave blackmail? Blackmail threatens a person’s reputation, and reputation is not a legally protected interest (although we are protected against disclosure of untrue, but reputation damaging, information). In fact, right to reputation and right to free speech are often in conflict, and we as a society happen to value right to free speech higher than right to reputation. Consequently, right to free speech becomes legally protected, but right to reputation is not. So, isn’t that an argument for decriminalizing blackmail?

To this, Levy argues that although right to reputation has been trumped by right to free speech in set of legally protected interests, the former, nevertheless, embodies the “spirit” of legally protected interests and individuals do treat reputation as an enshrined right, and in fact, this is precisely the reason why blackmail does succeed! Therefore, it follows that in all cases where right to reputation does not compete with or imping upon the right to free speech, any threat to the right of reputation should be considered on par with threats to other legally protected interests. Hence, blackmail should be criminalized even though its constituent actions in isolation should remain legal. This, Levy argues, resolves the first paradox. Levy concludes “well as a novel positive justification for criminalizing blackmail threats. Once again, blackmail threats should be
criminal for the same reason that menacing, harassment, and stalking are: they involve the reasonable likelihood, not to mention intent, of putting the target into a state of especially great fear and anxiety. And we as a society have decided that-like life, physical well-being, family, liberty, and property-emotional well-being is a supremely valued interest and therefore should be protected from deliberately inflicted injury when no competing moral or institutional interests, such as freedom of speech, would themselves be compromised.”

Paradox 2: Blackmailer-initiated vs. blackmailee-initiated

Here, if A offers to conceal B’s embarrassing, but true, information in exchange for money, then A is committing a crime (blackmail). But if B voluntarily offers money to A in exchange for A’s secrecy, it is a legitimate transaction. What is the difference between the two transactions that makes the first one a crime and not the second one?

Interestingly, the libertarian philosophy sees no distinction between the two transactions because they both take place between consenting adults and are the same transaction except for the party that initiates that transaction. The libertarians often cite the legitimacy of the second type of transaction to argue for the legalization of blackmail. On the other end of the spectrum, Marxists also see no difference between the two transactions, and often cite the illegitimacy of the first type of transaction to argue for criminalizing blackamilee-initiated transactions. The Liberal, on the other hand, has the hardest task of all: to argue for criminalizing the first transaction as being a crime while simultaneously making a compelling case to keep the second transaction legal.

Kathyrn H. Christopher argues for the Liberal case in her paper “Toward a resolution of blackmail’s second paradox” that appeared in Arizona State Law Journal, 37(4), 1127-1152, 2005. Christopher provides the following example:

Acceptance of money, pursuant to an unsolicited offer, not to commit a criminal act is lawful. For example, suppose that Lilli (a robberee), who is very rich and extremely averse to being robbed or threatened with harm, offers everyone she meets $1000 if they agree not to rob her. The recipients of Lilli’s offer neither insinuated they would rob her nor had any intention of robbing her—Lilli’s offer is entirely unsolicited. The recipients even inform Lilli of their lack of inclination to rob her. But Lilli is not to be denied, reiterates the offer, and the recipients finally accept. Have the recipients committed a crime by accepting Lilli’s money? Presumably not. They neither (impliedly or expressly) threatened Lilli, nor defrauded her, nor accepted money under false pretences. Thus, the recipients commit no crime by accepting Lilli’s money in return for agreeing not to rob her or threaten her with harm.

If accepting money, pursuant to an entirely unsolicited offer, not to commit a criminal act against the offeror is not a crime, then a fortiori accepting money (under the same circumstances) not to commit a lawful act must also not be a crime. If only one of the two were to be criminalized, it would be accepting money not to commit a criminal act. …one has the right to commit lawful acts. Thus, one should also have the right to accept money for foregoing the right to do that which one has a right to do.

Consequently, it should be legal for A to offer money to B so that B exercises B’s right to keep some (non-incriminating, but embarrassing) information about A secret.

Christopher then strengthens her argument with another example. Suppose blackmailee-initiated transaction was also criminalized, then

Case 1: Suppose that Blackmailer utters the following conventional blackmail threat to Blackmailee: “If you do not pay me $2000, then I will reveal your embarrassing secret.” Blackmailer accepts the $2000 payment from Blackmailee.
Outcome: Blackmailer is criminally liable for one count of blackmail.
Case 2: Suppose that Blackmailee 2 makes an unsolicited offer to pay $500 to Blackmailer 2 in return for Blackmailer 2 concealing Blackmailee 2’s secret. Blackmailer 2 rejects the offer. Blackmailer 2 counteroffers by uttering the conventional blackmail proposal (the same proposal as uttered by Blackmailer 1 above). Blackmailee 2 rejects the proposal and counteroffers $1000. Blackmailer 2 accepts these terms. Blackmailee 2 pays the money to Blackmailer 2 who accepts the payment.
Outcome: Blackmailer 2 is criminally liable for two counts of blackmail (or one count of blackmail and one count of the new crime of accepting money pursuant to a blackmailee’s offer of money).

Despite Blackmailer 2 obtaining one-half of the money that lackmailer obtained, Blackmailer 2 is, in a sense, twice as criminally liable as Blackmailer. Both Blackmailer and Blackmailer 2 commit the traditional offense of blackmail by uttering the threat. But unlike Blackmailer, Blackmailer 2 also commits a second count of blackmail

This is just plain absurd! Therefore, Christopher argues, that blackmailee-initiated transactions should remain legitimate. Thus resolving the second paradox.

Disclaimer: This post merely summaries other individuals’ research and is not the authors original intellectual property. All sources have been cited where appropriate. If there has been a misappropriation or negligence to cite some sources, I apologize and assure you that it was completely accidental. If you do notice something of this nature, please contact me and I will remedy the issue.