Monday, August 27, 2012

The Paradox of Blackmail (Part Three)

(Part One, Part Two)

This series of posts is looking at the paradox of blackmail. The paradox can be neatly summed up as follows. Blackmail consists of two acts: (i) a lawful threat to do something (e.g. release information) and (ii) the receipt of money or other favour for refraining from carrying out the threat. Both acts would be innocent in themselves, but when combined in the form of a conditional demand (Unless you….I will…) they become criminal. Why is this?

So far, we’ve looked at one answer to this question. In part one, we looked at Richard Epstein’s argument in favour of criminalising blackmail. The argument hinged on a thought experiment involving a hypothetical company called Blackmail Inc., that would be established whenever blackmail was legalised. This company was imagined to encourage fraud and deceit on such a large scale that the criminalised of blackmail seemed justified. This argument was challenged in part two when we looked at James Lindgren’s critique of Epstein’s work.

But the discussion in part two didn’t give Lindgren his due. For in addition to his critique of Epstein, Lindgren analyses and critiques seven other theories of blackmail, before offering a theory of his own. In today’s post, we’ll cover those seven theories and Lindgren’s critiques. While most of this information for this post is contained in Lindgren’s article on Epstein (“More Blackmail Ink”), it is presented in expanded form in his article “Unraveling the Paradox of Blackmail”. So I’ve drawn from that too in the following discussion. I was going to look at Lindgren’s own theory of blackmail in this post as well, but since the post was getting quite long I decided to postpone that until the next day. It probably deserves a more careful treatment anyway.

The seven theories critiqued by Lindgren, date all the way from the mid-1930s up to the mid-1980s (when Lindgren’s article was written). This gives a good sense of just how long legal theorists have been gnawing on this particular philosophical puzzle, and the diversity of their responses. Obviously, given constraints of time, space and patience, the summary of the seven theories I’m about to give is extremely perfunctory. I’ll go through each theory in sequence, giving a quick synopsis of its essential elements first, and following up with an overview of Lindgren’s criticisms. I'll add some critical comments of my own along the way.

1 - Goodhart’s Theory
The first theory supporting the criminalisation of blackmail comes from the work of Arthur Goodhart, a mildly notorious professor of jurisprudence at Oxford in the first half of the 20th Century. Goodhart’s theory hinged on the distinction between moral and immoral liberties. Roughly as follows:

Moral Liberty: Something that we are legally free to do and which is generally agreed to be a good thing, e.g. giving money to charity.
Immoral Liberty: Something that we are legally free to do but which is not generally agreed to be a good thing, e.g. giving all your money to a fascist political party.

Goodhart’s claim was that blackmail involved someone taking an immoral liberty — i.e. threatening to do something that was lawful but generally not approved of — hence it was okay to criminalise it. Particularly when someone was trying to make money out of it through a conditional demand.

There is something interesting about the moral/immoral liberty distinction, though it is redolent of the puritanical and quaintly paternalistic timbre of British legal discourse in the early to mid 20th century. But nothing in that distinction can justify the criminalisation of blackmail. Certainly not in its present form, since that seems to outlaw cases involving moral as well as immoral liberties. For example, disclosing somebody’s adulterous relationship to their partner might be thought a morally acceptable thing to do (perhaps even obligatory), but it is still blackmail under the law if one demands payment to refrain from doing it. Goodhart’s theory would require a systematic reframing of blackmail laws, and a careful delineation of moral and immoral liberties, in order to be successful. Neither of which seem to have been forthcoming.

I must admit, I find Lindgren’s criticism somewhat misleading here since in the blackmail case what is problematic is that a moral liberty is not being taken — one receives payment for refraining from taking it — not that one is. Arguably, it could be legitimate to criminalise the refraining from taking the liberty, since what we actually want to do is encourage people to take the liberty. A far more persuasive criticism, in my opinion, would target the moral/immoral liberty distinction and argue that it does not apply, that legal systems cannot make those kinds of distinctions when they remove legal sanction from an activity.

2 - Atkin’s Theory
The second theory comes from a judgment written by Lord Atkin. He was a British judge most famous for his articulation of the “neighbour” principle, which formed the backbone of modern personal injuries law. The judgment in question is Thorne vs. Motor Trade Association. In it, Atkin proposes that blackmail is committed whenever one demands money in such a way that it damages lawful business interests. Contrariwise, it is not blackmail to demand money to promote lawful business interests.

This theory has something to recommend to it. It allows us to distinguish between lawful hard-bargaining practices on the free market and unlawful cases of blackmail, and it also connects the criminalisation of blackmail to economic issues, which is something other theorists have tried to do. Nevertheless, it is still flawed.

To be slightly harsh on Atkin, his theory could be criticised on the grounds that it is circular: it says that blackmail is unlawful because it fails to promote lawful business interests, but it only does this because blackmail is unlawful; if blackmail were lawful it would promote lawful business interests. Thus, Atkin’s really begs the question.

This may, as I say, be too harsh — Lindgren certainly seems to think so — but still Atkin’s theory can be impugned on other grounds. The main one being that blackmail can, contrary to what he says, be committed when furthering “lawful” business interests. For example, a newspaper publisher could demand advertising in return for failing to publish a story that damages the advertiser’s reputation. Here, the demand furthers lawful business interests since the advertising revenue increases the profitability of the newspaper, but it still counts as blackmail.

3 - Ball and Friedman’s Theory
The third theory comes from the writings of two members of the American law school professoriate, Harry Ball and Lawrence Friedman. They tie social norms and economic goals together in their theory of blackmail. Their basic claim — glossing over some interpretive issues — is that the criminalisation of blackmail represents a social judgment to the effect that it is not permissible to turn information about a person’s past into an income-producing asset, as is done in the typical information disclosure case of blackmail.

Unlike the preceding two theories, which at least something to them, this one has nothing. Or so it seems anyway. For starters, their theory is purely descriptive, not normative. So they don’t attempt to justify the criminalisation of blackmail. Further, as a descriptive theory it is still a failure. There are plenty of lawful activities, which are socially approved, that involve the use of person’s past as an information-producing asset. Lindgren mentions three in his article: genealogy, biography and reporting. If Ball and Friedman were correct, these should be criminalised too. That they are not, suggests we need to look elsewhere for a theory of blackmail.

4 - Murphy’s Theory
A fourth theory comes from the pen of Jeffrie Murphy, an academic lawyer. His theory looks at the law, in typically economic terms, as an incentive system. His contention is that the criminalisation of blackmail provides an important disincentive against invasions of privacy. Without it, people would be encouraged to invade one another’s privacy in order to find damaging information and make money from it. This bears some similarities to Epstein’s theory, which looked at the possibility of blackmail corporations.

Linking a theory of blackmail to privacy rights looks like a promising venture. As noted in part two, the kinds of concealment at the heart of blackmail cases typically do overlap with the territory covered by the right to privacy. Nevertheless, there are two problems with Murphy’s theory. The first is that it fails to explain why threatening to disclose damaging information that has been discovered inadvertently should be criminalised. Additionally, invading privacy is occasionally deemed socially desirable, for instance when a newspaper reporter uncovers information about a politician’s private life that contradicts his public persona. So what would be wrong with incentivising it?

While I have my doubts about both of these objections, an obvious reply to the second one is that it is only worth incentivising it if the information will be made public. If the reporter can use it to blackmail the politician, the information will be kept secret, which is not in the public interest. So we could justifiably criminalise blackmail, without thereby jeopardising public interests.

Significantly, a keener appreciation of whose interests might be at stake in a blackmail case features heavily in Lindgren’s own theory of blackmail, which we will get to. Eventually. (Note: Murphy’s theory is considerably more complex than this summary lets on, and he does recognise some potentially legitimate cases of blackmail).

5 - Ginsburg’s Theory
A fifth theory is associated with the work of Douglas Ginsburg, another academic. Touching slightly on the point I just made, Ginsburg argues that blackmail represents wasted economic activity. The blackmailer goes to great lengths to discover damaging information about the victim, only then to suppress it. Which one could analogise to the case of an oil prospector who discovers a rich oilfield and then prevents any drilling. We wouldn’t wish to encourage this kind of wasteful activity, would we? Hence, the criminalisation of blackmail is justified.

Like Murphy, Ginsburg’s theory is quite complex, and goes into some detail on economic and bargaining theory. Nevertheless, two obvious problems arise. First, as with Murphy, Ginsburg’s theory fails to justify the criminalisation of opportunistic blackmail, i.e. cases involving the threatened disclosure of information that has been inadvertently acquired. Second, there are many wasteful economic activities — both actual and threatened — that are not criminalised. Interestingly, Ginsburg seems to accept this point an dcalls for the criminalisation of activities typically thought to be outside the scope of blackmail. For instance, he thinks it should be blackmail for a landowner, involved in some privacy dispute with a neighbour, to threaten to build a fence that is higher than is strictly needed to secure privacy since that would involve wasteful activity. But surely the criminalisation of such a threat is overkill?

6 - Landes and Posner’s Theory
A sixth theory is proffered by William Landes and Richard Posner, both proponents of the economic analysis of law. They argue that blackmail ought to be illegal because it is an illegitimate form of private rule enforcement. In the typical information disclosure case, the blackmailer threatens to disclose information that either they, the victim, or the society at large think inappropriate. For instance, the classic cases of homosexual blackmail were of this type: social mores deemed homosexuality unacceptable, even if it was not strictly illegal (though in many instances it was that too). In these kinds of cases, the blackmailer is, in effect, enforcing a social rule by extracting a fine from the victim for breaching it.

This is problematic for one of two reasons. Either the blackmailer is privately enforcing the criminal law, and thereby trespassing onto a domain in which the government has a justifiable monopoly on enforcement (there is a long argument for this conclusion). Or, the blackmailer is privately enforcing a rule that society does not deem sufficiently problematic to warrant full legal sanction and hence engaging, once more, in wasteful activity.

One could respond to this in a variety of ways. The quickest criticism, however, is that the theory fails to explain why blackmail is treated differently from other, acceptable, forms of private rule enforcement. For instance, employers frequently fire (or fail to hire) people they find disagreeable. This imposes penalties on the people fired or never hired, for failing to comport with some private rule of the employer. Now, admittedly, there are laws designed to prevent the more egregious forms of prejudice from affecting such decisions, but there are still innumerable permissible ways to impose this kind of penalty.

7 - Nozick’s Theory
A seventh theory is presented in some work done by Robert Nozick, the famous philosopher. Unsurprisingly, given his libertarian leanings, the theory also has an economic flavour. Nozick’s argument is that blackmail ought to be illegal because it represents an unproductive economic exchange. A productive economic exchange is one in which both parties increase their general welfare after the exchange (technically: where they achieve Pareto efficiency). But this is not the case in blackmail. In blackmail, the victim would be better off if the blackmailer didn’t exist and the exchange had never taken place.

There are two problems with this theory. The first is that, in a technical sense, blackmail involves productive economic exchanges: the blackmailer benefits because they prefer payment from the victim to the disclosure of the information, and the victim benefits because they prefer to conceal the information. But that doesn’t quite address Nozick’s counterfactual judgment that the victim would have been better off if the blackmailer hadn’t come into their lives. This is where the second criticism comes into play. There are many legitimate transactions that have the counterfactual nature that Nozick dislikes. For instance, if a tree branch falls from a tree on your property, and injures someone in a passing car, they can legitimately threaten to sue you unless you pay them compensation. In this scenario, you would be better off if the person who was injured did not exist, but that doesn’t mean their threat ought to be criminalised.

So there we have it, seven theories of blackmail with Lindgren’s criticisms. The table below summarises most of what has been said in this post.

Click to enlarge

Next time out we’ll actually look at Lindgren’s theory. I promise.

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