Two "paradoxes" of the law on blackmail and bribery: a question for law and logic buffs

Factual Questions
1

Both “paradoxes” are cited at The Futility Closet. The first is here, with a half-assed cite to “Northwestern University law professor James Lindgren”; the second onefrom today takes a quote from Walter Block et al., “The Second Paradox of Blackmail,” Business Ethics Quarterly, July 2000.
I. First “paradox:”
The article, and certainly the Futility website guy, says that a private contract to conceal information is legal but one not to reveal information, blackmail, is not. Hence “the blackmail paradox.”

II Second “paradox,” which seems the same damn thing, a restatement with the first in mind (I haven’t checked):

IANAL, but it seems to me the difference between blackmail and contract is the first is illegal “contracts” is due to compulsion, hence no contract at all. And that “bribery” means only illegal contracts, illegally enacted willingly but unenforceable in certain realms due to other laws giving what contracts may or may not be.

Giving my kid brother to spill his milk on the new rug is a legal crime only in the jurisdiction of Mom and Dad.

And switching from “contract” to "bribery and “blackmail” is not a paradox but slippery definitions that are used commutatively, which is a logic of wordplay, and is a fallacious one. There must be a name for that kind of rhetorical sleight-of-hand.

It is entirely likely that the statements in I and II are strawmen arguments in pedagogy or philosophy of law, and use the word knowingly–certainly the second article has it in its title. And Futility Closet, a kind of near-listicle website, is certainly into the grabber of the word and cites both law sources out of context to boot.

Which annoys me.

Anyway, could lawyers, logicians, and people in the bleachers weigh in here?

2

I’m not a legal expert, but I work in Government contracting, and I can assure you that bribery is illegal as well. Perhaps ‘bribery’ is not the word you mean.

For example, I could require that my employees agree via a contract not to disclose a trade secret (e.g. the secret formula for Coca-Cola) if they know it or find out what it is. Likewise, I might not have such an agreement in place, but I might ask someone to sign an agreement after a discovery is made, which may or may not involve money in exchange for silence. The difference may be the intent of the information hiding and whether it involves the commission of a crime, where you might be guilty of obstruction of justice or aiding and abedding.

This is, I think the contract where I pay you not to reveal the secret formula for Coca-Cola to my competitor Pepsi Cola is something the courts would enforce, and it has a very real monetary damage that can calculated. If I pay you not to reveal the stash of child porn you find in my office, that is not a contract the court would enforce.

3

Blackmail as a crime is generally not as broad as these scenarios seem to imply. The federal blackmail statute applies only to threats to share information about a crime the victim has committed. At common law, blackmail was generally agreed to be a crime only when (a threat of harm to reputation) was untrue. You could demand $5 not to tell anyone about somebody’s factual affairs as much as you liked.

In Yarster’s case, the child porn is evidence of a crime. On the other hand, regular porn wouldn’t be and you can threaten to squeal about that all you like.

4

Remember “the good old days” version of blackmail would be the concept of “pay me $1000 and the wife never has to see these pictures of you and your girlfriend” (even when adultery was not a crime.) That was blackmail, IIRC it was prosecutable, but not a threat about revealing evidence of an actual crime, just harming your reputation and possibly marital status. Am I misunderstanding this?

Also, maybe I’m misunderstanding this, but isn’t bribing someone not to reveal evidence of your crimes illegal for both of you? (Whereas “I’ll pay you $1000 if you don’t tell my wife” is legal).

From Wikipedia -

Keeping the Coke secret would be a contract willingly entered into by both sides.

5

I think it depends a lot on how the information is obtained. If you trespass, phone tap without a warrant, or steal (and removing photographs that someone else took, as opposed to taking your own, from a location that is somehow not trespassing, is stealing if you don’t have permission), then you have committed a crime, even if the evidence you gathered is of an indiscretion that is not a crime. It’s very hard to get the kind of evidence you need to extort money from someone without committing a crime yourself. Extortion is a little like stalking, or possession. It practically requires you to commit other crimes, and no one does it with innocent intent, so it might as well be a crime on its own. Even if it isn’t, if you catch someone at it, the chance is, they’ve done something else prosecutable.

6

There are cases where it is successfully prosecuted when there is nothing else illegal going on: The guy who tried to extort David Letterman. The man found the details when he lived with one of the women who Letterman had slept with.

The typical way to get around it is to sue someone. Doesn’t matter over what. There’s an unspoken understanding that if it goes to trial, all of the details will come out. But hey, if they settle for $xxx, there doesn’t need to be a trial. Isn’t that convenient.

I always see it as pretty similar to prostitution. It’s legal to have sex. It’s legal to give people gifts. But to give someone money in exchange for sex is illegal. Also applies to campaign contribution limits. It’s legal to give your friends money. It’s legal to encourage them to donate to certain political causes. But doing the two together and you end up in jail.

The law is imperfect, and there where always be edge cases where the demarcation between legal and illegal seems arbitrary. But we, as a society, have generally decided that many types of extortion are not acceptable.

7

If I understand correctly, if I say to my congressman, “I’ll give you $100,000 if you get the following law passed”, that’s bribery. But if I say, “Here’s $100,000 for your next campaign. By the way, I would be mighty pleased if you could get the following law passed”, that’s legal. INHO, they are almost equally reprehensible, but hey, that’s life.

8

Except that in your second scenario there is no contingency. (Setting aside the other issue in that $100,000 exceeds campaign contribution limits.)

You may also wish to note that if you told a congressman, “Thanks for sponsoring that bill last year, and here’s $100,000 for your efforts,” that would be an illegal gratuity subject to the same penalties as bribery.

9

FTR, that dude (Joe Halderman) plead guilty to attempted grand larceny, not blackmail or extortion.

10

I suppose, but the only thing that made his attempt to cash the check illegal was that it had been obtained through extortion.

11

Sorry for the double post, I pressed submit too quickly.

The Letterman case fits the paradox of blackmail perfectly. It would have been legal for Halderman to have gone ahead and made his movie that was a thinly disguised blackmail attempt, and it would have been legal for Letterman to have voluntarily given him $2 million. It probably would have been legal for Letterman to have bought the rights the the screenplay if he had found out about it some other way, although I’m a lot less sure about that.

It seems to me that if Halderman had consulted a lawyer before he tried, he probably could have gotten some money out of it. I mean, the revelations themselves ought to be worth something, he could have gone ahead and actually made a movie (or written a book). And maybe if he started going to Letterman’s other mistresses and asking pointed questions, for research for the book, word will trickle back to Letterman and maybe he’ll approach with an offer. Or maybe not, and you go ahead and publish and sell, and you probably don’t make 2 million, but you probably make something.

12

We had this exact blackmail/extortion case play out with a local politician 15 years ago. 40ish state rep breaks up with 23-y-o gf. She has possession of sexy tapes they made in, ahem, unorthodox, but not illegal, positions. She demands $10,000 for the tapes, he calls cops, she’s arrested in sting, charged, and imprisoned for a couple years. He still loses next election, in the primary if I recall correctly.

At any rate, I think she would have committed no crime if it were he who suggested $10,000 for the tapes and her silence.

13

I bet he regrets not paying.

14

“Pay me or else” is coercion. A voluntary offer “I will pay you if…” is not coercion. Threats and thus coercion is a crime. Accepting an offer is not a crime.

Just as, free sex is not a crime. Asking for money for sex is. (Soliciting).

there was something similar back in the Good Old Days of the internet. People would register “Walmart.com” or “Macys.com” or some similar big name and ask for money for it. The ICANN adopted a rule against cybersquatting. Basically, if you registered a domain for an alleged legitimate reason, and a big company claimed (due to trademark) they owned the name, then - if you offered to sell it to them, they took that offer to ICANN as “see, this guy is cybersquatting to extort money” and you lost the domain. If they offered you money, and you took it, all well and good. If they offered you money, and you said “not enough”, then you were demanding money, hence cybersquatting, and - poof - you lost the domain.

The key in all cases is coercion - which depends on who first mentions the quid pro quo. Someone with possession of embarrassing information has no visible intent to leverage that information. Even threatening to expose it is simply a declaration. But once a “trade” is mentioned, it becomes a coercion - do this or that happens.

…or look at it another way. If I threaten to expose your proclivities, that is a threat of harm (damage to reputation, at least). If I offer you something to NOT expose my pecadillo, no harm is being threatened. So who makes the initial offer defines the situation.

(If I blackmail you over an illegal activity, then I am profiting from that illegal activity, which therefore makes my actions criminal).

15

Again, seems like if she’d consulted a lawyer, she could have done it legally. Sue him for something. Emotional distress. Of course the tapes are going to be entered as evidence. His lawyers know this. Offer to settle for $10,000.

16

In my Not so Humble Opinion?

17

Probably, but I dunno. He remains active in local, but not state, politics. He’s always maintained that he did the moral and ethical thing. He sued a local tv station over reporting it, claiming they furthered the blackmail by reporting it or something, but it was tossed out.

But yeah, he was something of a joke for a while–I went as him for Halloween and it was a pretty popular costume. A suit, blow-up doll in velvet-padded handcuffs, and his campaign sticker. The sticker was redundant: everyone at every bar and party we went to knew exactly who I was. (Probably because we frequented the same bars looking for college-aged girls. The difference being I WAS in college and he was 40.)

18

I think you are 100 % correct. There was something about her in handcuffs, IIRC, which any semi-competent lawyer could have made hay out of to get him begging for a monetary settlement for her. She did it wrong.

19

I don’t quite understand either paragraph, even after reading the text at the links. I must be missing something if law professors see a paradox that I don’t.

The way I see it, blackmail is using the threat of exposure to coerce someone to give you money. Different kinds of threats get different kinds of laws - muggings, protection rackets, etc. would be prosecuted under different laws. Still, the same element appears to be present to me.

If you remove the threat component, then you have removed the criminal element. There may be some hairs to split over when there’s a threat or not, but these are the kind of hairs our legal system splits all day over issues like the reasonable person standard and self-defense.

As for bribery, I’m really not clear on how the author is using the term. He seems to use the term “bribe” in a way that includes virtually any kind of payments. For example, from Wikipedia: “defined by Black’s Law Dictionary as the offering, giving, receiving, or soliciting of any item of value to influence the actions of an official or other person in charge of a public or legal duty.” The Black’s definition creates no paradox that I can see.