Abstract
This essay was originally presented at the Rutgers Institute for Law and Philosophy as part of the Symposium on The Evolution of Criminal Law Theory. It is a Reply to Professor Donald Dripps’ politically-based justification for blackmail’s prohibition. Under Dripps’ account, by exacting payment from the victim blackmail is an impermissible form of private punishment that usurps the state’s public monopoly on law enforcement. This essay demonstrates that Dripps’ account is either under-inclusive or over-inclusive or both. Dripps’ account is applied to a number of the standard blackmail scenarios by which theories of blackmail are typically assessed. Dripps’ account is under-inclusive by failing to treat as blackmail Victim-Welcomed Blackmail, Non-Monetary Blackmail, Rebuffed Blackmail, and Non-Informational Blackmail which the law considers as blackmail. And it is over-inclusive by treating as blackmail Victim-Initiated Exchange and Unconditional Disclosure which the law does not recognize as blackmail.
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Notes
Dripps’ account is under-inclusive in failing to explain why some types or instances of blackmail are, and presumably should be, criminalized. And it is over-inclusive in explaining why some types or instances of conduct should be criminalized as blackmail but these forms of conduct are not, and presumably should not, be criminalized.
E.g., Smith (1998, p. 907) (“If A knows that B has secret information about A and A approaches B with an offer to purchase B’s silence, B can accept the offer without being guilty of blackmail or any other crime.”). For a list of other commentators finding victim or blackmailee-initiated exchanges to be lawful, see Christopher (2005, p. 1129 n. 2). Why blackmail is unlawful and these substantively equivalent victim or blackmailee-initiated exchanges are lawful has been called the “second paradox” of blackmail (DeLong 1993, p. 1664). For criticisms of blackmail theories that have failed to resolve the second paradox, see Christopher (2005, pp. 1136–1147), DeLong (1993, pp. 1665–1688). For an argument attempting to resolve the second paradox by treating both blackmail and victim-initiated exchanges as unlawful, see Levy (2007, p. 1095).
One might still argue, to avoid the charge of over-inclusiveness in Victim-Initiated Exchange, that D has not punished V. Since D has not affirmatively exacted or coerced D into making the payment, D has not punished V. Perhaps V is being punished or penalized by paying the functional equivalent of a fine, but D’s mere acceptance of the payment or fine does not constitute D’s punishing or penalizing V. If so, Dripps’ account properly treats Victim-Initiated Exchange as lawful non-blackmail conduct and is not over-inclusive.
But even if D is not punishing V, Dripps’ account supports criminalizing D’s lawful conduct as unlawful blackmail. By accepting payment from V in exchange for non-disclosure—the functional equivalent of a bribe—D is similarly usurping legislative and administrative authority. D has set himself up as a private system of law enforcement without adjudicatory due process. Even if D is not punishing V, by extracting the functional equivalent of a fine, by accepting payment from V for non-disclosure—the functional equivalent of a bribe—D is similarly usurping legislative and administrative authority. As a result, Dripps’ account would still support treating D’s lawful conduct as unlawful blackmail and thus Dripps’ account is still over-inclusive.
Lindgren similarly criticized Posner’s private enforcement theory of blackmail as being over-inclusive as justifying the treatment of lawful non-blackmail conduct as criminal conduct. ‘Individuals are punished for breaches of informal rules and customs every day in every way …. Employees are fired or never hired, bequests are withheld, and contracts foregone because someone has breached a private standard regarding drinking, smoking, swearing, sex, dress, or honesty’ (Lindgren 1984a, p. 698). Lindgren concludes that ‘Landes and Posner’s theory cannot explain why it is illegal to use blackmail to punish those who breach moral customs, but permissible to use more conventional means of private enforcement to punish those breaches’ (Lindgren 1984a, p. 698). For a similar articulation of the criticism, see Lindgren (1984b, p. 911).
One might still object that the payment is more of a punishment or penalty than disclosure. After all, a monetary fine is a form of punishment. And the payment to the blackmailer Dripps likens to a monetary fine on the conduct. While perhaps not in the form of a punishment, disclosure (at least of norm and law violations) does encompass a central feature of punishment—stigma. Disclosure of the videotape, just like punishment of a crime, would stigmatize V. Perhaps disclosure of the videotape might stigmatize V to an even greater degree than would punishment for the commission of most crimes. In contrast, paying money to a blackmailer does not encompass much, if any, stigma.
Under Landes and Posner’s private enforcement account, Landes and Posner conceded that other types of conduct besides imposing monetary payments could constitute private enforcement. In fact, they observe that ‘private enforcement is a pervasive feature of the existing social and economic system’ (Landes and Posner 1975, p. 1). For example, violators are punished and violations enforced by the ‘latent threat of withdrawing future business from the violator’ and ‘dismissing an employee if his “violation” is detected’ (Landes and Posner 1975, pp. 1–2).
Berman (1998, p. 809) (referring to blackmail involving ‘demands for something other than pecuniary gain’).
For a comprehensive list of commentators acknowledging non-monetary blackmail as a form of blackmail, see Levy (2007, p. 1053 n. 1).
Lindgren (1984a, p. 676 n. 31) (‘Most modern statutes do not require that the blackmail threat be successful; the making of the threat is enough.’). Lindgren explains that the rationale ‘is probably that successful blackmail typically requires the cooperation of the victim. Once the blackmailer has done his part by making the threat, why require another step by the victim?’ (Lindgren 1984a, p. 676 n. 31).
For a criticism of an account of blackmail for failing to justify non-monetary blackmail, see Berman (1998, p. 809) (criticizing Posner’s account).
This is based on an example from Shavell (1993, pp. 1897–1899) (distinguishing among socially harmless acts, socially harmful but legal acts, and unlawful acts).
For a similar criticism of Posner’s private enforcement account of blackmail’s prohibition, see Ginsburg and Shechtman (1993, p. 1874) (explaining that the ‘private enforcement … analysis does not explain why the prohibition extends to situations in which there is no social norm … at stake, but there is nonetheless potential for embarrassment’).
Katz (1996, pp. 133–134) (observing that while ‘blackmail is usually thought of as a “crime of information,” the threat involved can consist of lots of things other than an embarrassing disclosure’); Berman (1998, p. 866) (‘Blackmail does not invariably involve a threat to disclose information.’); Lindgren (1984a, p. 672) (same). For a list of commentators discussing non-informational blackmail, see Levy (2007, p. 1067 n. 25).
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Acknowledgement
I am indebted to Kathryn Christopher and Ken Levy for their helpful comments on an earlier version of the article.
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Christopher, R.L. A Political Theory of Blackmail: A Reply to Professor Dripps. Criminal Law, Philosophy 3, 261–269 (2009). https://doi.org/10.1007/s11572-009-9074-9
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DOI: https://doi.org/10.1007/s11572-009-9074-9