Abstract
Most of us are inclined to believe that blackmail is clearly immoral (even a particularly sleazy kind of immorality) and are thus quite content that it be criminalized.2 Justifying this belief, however, turns out to be more of a problem than it might at first seem. In particular, it is difficult if not impossible to distinguish cases of blackmail (which we prohibit) from other hard economic transactions (which, even if we do not totally approve of them, we do not criminalize).
Of all the forms of crime, blackmailing is surely the most vicious, vile and villainous; it is even lower and more contemptible than cheating at cards.
—J.K. Ferrier
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Preview
Unable to display preview. Download preview PDF.
References
Formerly Detective-Inspector, Scotland Yard. The quotation is from his Crooks and Crime: Describing the Methods of Criminals From the Area Sneak to The Professional Card Sharper, Forger or Murderer and The Various Ways in which They are Circumvented and Captured (London: Seeley, Service, 1928). This and many other gems are cited in Mike Hepworth’s Blackmail: Publicity and Secrecy in Everyday Life (London: Routledge and Kegan Paul, 1975). Hepworth’s book is an anecdotal and sociological account of the history of blackmail and blackmail legislation (especially in England) which reveals—as the quotation from Ferrier illustrates—that the offense was originally perceived in class ternis: the crime of a lower order person against a gentleman. Hepworth also points out how the rise of blackmail and the rise of journalism went hand in hand.
Extortion (obtaining or attempting to obtain property through threats or menaces) and blackmail are legally the same. Frequently in ordinary language, however, the term “blackmail” is reserved for cases where the extortionate threat is the threat to expose, to reveal a secret with the intent to impair reputation. In this paper the term will also be so limited—”blackmail” herein being equivalent to “reputational extortion.” On extortion generally, see proposed Federal Criminal Code, S.1437,95th Cong., 2dSess. (1978).
I introduce the qualifications of innocent acquisition and non-obscenity to at this point bracket off pure blackmail from other worries. If your privacy was violated in order for me to obtain the pictures, for example, you have a complaint against me quite independent of the blackmail question. So let us suppose some scenario of this kind: a professional photographer took the pictures at your request, you forgot to pay him before you left the city, he held the pictures for two weeks and then threw them away, they fell out of the garbage truck on the way to the dump, and then I found them and recognized you.
See Hepworth supra, n 1, p. 12, for a discussion of the prevalence of this view during the early days of blackmail legislation.
Vinit Haksar, “Coercive Proposals,” Political Theory, (February, 1976): 65–79.
For a discussion of the relationships between moral decency and rights (and a clarification of the distinction between Minimally Decent Samaritans, Good Samaritans, Very Good Samaritans, and Splendid Samaritans), see Judith Thomson’s “In Defense of Abortion,” Philosophy and Public Affairs, vol .1, no . 1 (1971) : pp. 47–66 . As Thomson points out, I can be highly morally lacking even in cases where I violate no rights. For example: I am sitting in a lounge chair next to a swimming pool. A child (not mine) is drowning in the pool a few inches from where I am sitting. I notice him and realize that all I would have to do to save him is put down my drink, reach down, grab him by the trunks, and pull him out (he is so light I could do it with one hand without even getting out of my seat). If I do not save him I violate no rights (strangers do not have a right to be saved by me) but would still reveal myself as a piece of moral slime properly to be shunned by all decent people.
By “tolerated” here I mean “not criminalized.” We may well disapprove of such transactions and even void, on moral grounds, such contracts. We do not however, jail a person simply for offering such a contract as we do the person who offers the blackmail contract.
Haksar, supra n5, argues that an offer is coercive if it involves taking an unfair advantage of the vulnerability of the person to whom the offer is made. My question is this: why criminalize some coercive offers and not others?
Glanville Williams, “Blackmail,” The Criminal Law Review (1954), p. 163.
Ibid. Should the reasonable belief that what the blackmailer demands is rightfully owed to him be a defense? According to the proposed Federal Criminal Code (supra note 2) and the Model Penal Code (1962) the answer is Yes. I, however, have grave doubts about this “we may take the law into our own hands” defense. See United States v. Pignatelli, 125F.2d643 (ed Cir.), cert. denied, 316 U.S. 680 (1942). In that case Judge Augustus Hand said: “Threats to damage another’s reputation are no proper means for determining a controversy. It may be adjusted either by suit or by compromise but settlement must not be effected by using defamation as a club.”
“Blackmail would not be illegal in the free society. For blackmail is the receipt of money in exchange for the service of not publicizing certain information about the other person. No violence or threat of violence to person or property is involved.” Murray N. Rothbard, Man, Economy, and State, Vol. I, p. 443, n. 49 (Princeton: D. Van Nostrand 1962).
Also Proudhon’s famous claim that “All private property is a form of theft” is in part based on the blackmail analogy.
Daniel Lyons has spoken of such issues in terms of what he calls a germaneness condition. See his “Welcome Threats and Coercive Offers,” Philosophy, October 1975, pp. 425–36.
Robert Nozick,Anarchy, State and Utopia (New York: Basic Books, 1974), pp. 84 ff.
Nozick gives his analysis as a “rough” definition of a productive economic exchange, then suggests that he has only given a necessary condition, and finally suggests that getting the matter just right “is not worth the effort it would require” (p. 85 note). I hope I am being fair to him.
Let me remind the reader again: the issue here is criminalizing blackmail. I am willing to grant, for purposes of this paper, that we may legitimately deplore blackmail and attempt to do something to blunt its consequences. My question here is whether we should take the extreme step of criminalization. (All steps including criminalization will, of course, be rather inefficacious because the victim, in order to use the legal process, will have to run a high risk of the very thing he most fears: exposure.)
It is, of course, important here that I not be responsible for your unhappy situation—e.g., not the one who set you up with the girl, took the pictures, etc., or—inthe other case—intentionally or negligently gave you the disease.
For a general discussion of the dangers lurking in economic analysis, see Robert Paul Wolff’s “Robert Nozick’s Derivation of the Minimal State,” Arizona Law Review, Vol. 19, No. 1, 1978, pp. 7–30. As Wolff points out, when some things are assigned a price they cease to be the things they were—e.g.jf my honor has a price, I simply have no honor.
“You are not allowed to make a person buy his reputation.... The criminality of blackmail represents a social judgment that one may not manipulate as an income producing asset knowledge about another person’s past; you may not sell to that person forbearance to use your knowledge of his guilt.” H. V. Ball and L. M. Friedman, “The Use of Criminal Sanctions in the Enforcement of Economic Legislation: A Sociological view,” Stanford Law Review, Vol. 17, 1965.See also Warren and Brandeis, “The Right of Privacy,” 4 Harvard Law Review, 1890.
The law of libel and slander is instructive to pursue in this regard. The classic case, of course, is New York Times v. Sullivan 376 U.S. 254. See also: Curtis Publishing Co. v. Butts 388 U.S. 130, Rosenbloom v. Metromedia 403 U.S. 29, and Gertz v. Robert Wekh 418 U.S. 323.
This is very like State v. Harrington (128 Vt. 242, 260 A.2d 692, 1969) in which an attorney was convicted of attempted extortion. This case and its implications for the legal profession are interestingly discussed in Joseph M. Livermore’s “Lawyer-Extortion,” Arizona Law Review, Vol. 20, No. 2, 1979,pp. 403–12.
I can deprive you of a benefit or withhold a benefit from you. The latter expression suggests that the benefit is somehow mine to give. These (and other) complexities will simply be ignored in what follows.
“There is worked into our moral system a distinction between what we owe people in the form of aid and what we owe them in the way of non-interference.” Phillippa Foot, “Abortion and the Doctrine of the Double Effect,” Oxford Review (1967). But what is aid and what is noninterference?
Let it not be thought that I am naive enough to believe that the concept of a “normal baseline” will prove easy to explicate.
Remember that blackmail is not libel or slander. What the blackmailer proposes to tell is true.
There would, of course, be problems in making this precise. Does one lapse into performing a Y act make one permanently or totally a non-X person? Or does it take several or a pattern? This no doubt depends heavily on what Y and X are. One act of obstructing justice no doubt makes someone undeserving of the title of honorable judge, as one act of child murder makes one undeserving of the title of good father. But does one act of impulsive and regretted sexual infidelity make one undeserving of the title of loyal husband? I do not pretend to be sure about any of this.
Ronald Dworkin, Taking Rights-Seriously (Cambridge: Harvard University Press, 1977), Index entries at p. 293 under heading “principles and policies.”
In general, if it is wrong to do X it is wrong to threaten to do X. But there are exceptions. I may not kill you in order to stop your theft of my stereo equipment, but I may threaten to kill you. And suppose one believes it would be immoral to use atomic weapons. Does it follow that one must then (in consistency) believe that it is immoral to threaten their use? I am not sure. Since there are exceptions to the noted principle, might not some extorsion cases be exceptions? This needs to be thought about some more.
Ihe legal moralist is someone who believes that all immorality should be criminalized. This, I believe, would make the criminal law overbearingly intrusive into people’s lives and is thus unacceptable. Making immorality merely a necessary condition, however, will not have this consequence.
The criminal law is, in part, a technique for social control. It is well suited for control of some immorality, but not for other immorality. Thus utilitarian considerations (considerations of good versus bad consequences) are surely highly relevant to a decision concerning its use.
In developing the following discussion, I have profited from conversations with Joseph M. Livermore.
These public/private distinctions have been held to be relevant in the law of libel and slander. See supra note 20.
Though some blackmailers (such as the one I initially described) are innocent of privacy invasions, many would not be. And one would hardly want to provide additional temptations here.
Sometimes, of course, it is hard to decide what is and what is not relevant. Is the official’s sexual conduct relevant? Is his history of psychiatric visits? Is his alcohol use? And who should make the decision of relevance—the official himself or the press?
Again, of course, it is difficult to know where to draw the line here. The public official may legitimately be regarded as having given up certain rights to privacy that the nonpublic person enjoys, but surely even the most important of our public official should enjoy some rights of privacy.
This concept of “market value” needs more work. In one sense, the market value of a commodity is not set until all bids for the commodity are in. But in this case I am suggesting that one bid (the victim’s) be discounted in determining the market value of a piece of information. Is this restriction acceptable?
Typically, reputation is not regarded as so important a right or value that the state may restrain or “chill” free expression in advance (prior restraint) in order to protect it. Instead, the state allows after-the-fact remedies—e.g., suit for libel or slander.
See supra notes 20, 32, and 37.
The plausible argument for allowing a market in private information is that a certain amount of this must be tolerated in order to avoid chilling a free press, not that such toleration is required to keep a capitalistic economy healthy.
Note the problem: the restrictions that are sufficiently specific (e.g., “Do not sell baseballs”) do not get at what bothers us about the case; the restrictions that seem to get at what bothers us (e.g., “Don’t overcharge the father of a sick child”) are so vague and nebulous—so open to subjective interpretation—that they would surely chill commerce. (Also, as criminal statutes, they would no doubt be voided for being overbroad or vague.) Perhaps with more inventiveness than I have shown, one could draft a rule that would (a) be clear, (b) have no serious inhibiting power over mainstream economic transactions, and (c) focus on what indeed morally repels us about the transaction in question. The issue should be thought about some more.
In some cases (e.g., when one is buying negatives) one can almost be sure; but even here there are no real guarantees.
This, of course, is not eractly right. To sneak the shoes out of your closet is an act no one has the right to perform; but here I am focusing, not on the rights involved, but on the radically open-ended nature of the blackmail transaction. The example, though artificial, does illustrate this. Some others: The mechanic, well-known to all of us, who always fouls up something a bit more expensive than the thing he is currently working on—the fouled object usually breaking down about two weeks later and requiring another and even more expensive visit (during which he does something else to continue the series). Also, there is the drug seller who offers cheap prices at first and then charges more and more as your dependency rises.
The blackmailer seems to exhibit two failings: he is a coercer(in some as yet unclear sense) and he is a threat to reputation. He thus cuts across several categories of moral and legal interest.
Many persons were kind enough to talk with me about the topic of blackmail. In particular, I want to thank the following: Joseph Cowan, Dan Dobbs, Robert M. Harnish, Ann Kerwin-Yokota, Keith Lehrer, Joseph Livermore, Ronald Milo, Judith Thomson, and David Wexler. I am particularly grateful to Ellen Canacakos for listening to and reading more of my thoughts on this topic than anyone should reasonably be expected to tolerate and for providing me with many hours of valuable discussion and commentary.
Author information
Authors and Affiliations
Rights and permissions
Copyright information
© 1992 Springer Science+Business Media Dordrecht
About this chapter
Cite this chapter
Murphy, J.G. (1992). Blackmail: A Preliminary Inquiry. In: Retribution Reconsidered. Philosophical Studies Series, vol 54. Springer, Dordrecht. https://doi.org/10.1007/978-94-015-7922-3_6
Download citation
DOI: https://doi.org/10.1007/978-94-015-7922-3_6
Publisher Name: Springer, Dordrecht
Print ISBN: 978-90-481-4170-8
Online ISBN: 978-94-015-7922-3
eBook Packages: Springer Book Archive