Tuesday, December 1, 2009

So, why exactly is blackmail illegal?

From recent National Post and New Yorker articles..

Halderman discovered Letterman was having an affair with a staff member. Not illegal. Halderman decided to write a screenplay about it. Screenplays, particularly truthful ones, are also not illegal. Halderman then sought to sell his own work, as people are allowed to do. Now if Halderman had shopped his script to Fox or NBC, he would have broken no laws. Similarly if he had sold what he knew to TMZ or some other gossip website, he would have been free and clear. And if Letterman had caught wind of the screenplay and offered, on his own, to pay Halderman $2-million for the privilege of burning it, that too would have been completely legal.

It was only when Halderman implied he might sell the screenplay somewhere else if Letterman didn't pay up that he was alleged to have committed grand larceny, which carries a maximum sentence of 15 years. So selling the screenplay is legal. But threatening to sell it isn't. Why?


Richard Epstein, the University of Chicago and N.Y.U. law professor, said, “There’s this terrible fear of monopoly power. Halderman is sort of a local monopolist.” To show that he shouldn’t be allowed to “put the squeeze on the guy,” Epstein said, “you have to prove that a world where blackmail is illegal is a better place.” Epstein is the author of an essay called “Blackmail, Inc.,” in which he describes what it would be like if blackmail were legal and were handled by big corporations. In that scenario, Epstein said, Halderman would have hired Blackmail, Inc. “So Blackmail, Inc., goes to Letterman, and they say, ‘Look, this is going to really bust your chops if this gets out, but we’re going to help you keep it a secret. So the company puts out false public information designed to throw people off the scent.” The problem, he said, is that blackmail leads to fraud: “You lie to the world. And lying to the world is wrong.”

Other experts addressed the ick factor. “It has something to do with the truth about human psychology,” Mitchell Berman, a legal theorist at the University of Texas, said. “There’s an anti-commodification norm” (meaning that people aren’t O.K. with there being a market for some things; he mentioned prostitution). Lindgren imagined a cash-free, and legal, scenario: “If Halderman had said, ‘Stop doing this or I’ll expose you,’ and Letterman said, ‘I don’t want to stop doing this,’ and Halderman had said, ‘I’m forcing you to stop doing this or I’ll ruin your reputation’—that would probably not have been blackmail.” The Harvard law professor Steven Shavell, who calls himself a “quasi Letterman fan,” said the issue lay with Halderman’s motives: it’s about “hurting the person who committed the crime.” He suggested that Halderman’s attempt was wrong for the same reasons that vigilante justice is wrong, and he downplayed the idea of a “blackmail paradox,” calling such a notion “a toy of philosophically oriented academics.”

A final call went out to Walter Block, the libertarian economist. Block believes that blackmail, like smoking, is “yucky” but should be legal. “He only threatened to be a gossip—maybe a screenwriter,” he said of Halderman. “Screenwriting and gossiping are legal. If it’s legal to do it, it should be legal to threaten to do it.” Of Halderman’s defense team, he said, “If the purpose is to promote justice, they should argue that it’s an unjust law, and he should get off free.” Of his fellow ethics experts, he said, “They wouldn’t know just law if it bit them in the rear end.”

The Cosby Extortion Case. As Eugene notes, someone with an
underlying legal claim may threaten to expose it to reach a reasonable
settlement. Yet if the amount sought is so substantially out of line

with the injury and the threat to embarrass is a big part of the

threat, then a criminal charge of extortion can be established.

So, basically, it seems to come down to two things. One, using the monopoly power to gain significant increased advantage in a 'negotiation'. I can see this for sure, but, threatening to expose your product to an open market shouldn't be considered illegal, I think. I mean, it's worth as much to you as you're willing to pay. If that's the seller's price to you - versus it being sold for less to others(??); does that make it illegal? Is this extortion? Two, the 'ick' factor, which I don't buy at all really.


Despite all these logical inconsistencies, the jurisprudence of blackmail is well established and Halderman's legal gambit probably doesn't have a leg to stand on. Perhaps a new screenplay is in order --one about the injustices faced by blackmailers. He should have plenty of time to work on it.

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