David Henderson argues that blackmail should be legal. I’m not so sure.
Here’s David:
One pair that I would like to hear from on this are Georgetown University philosophers Jason Brennan and Peter Jaworski. They wrote a book titled Markets Without Limits. The description of their book on Amazon states their thesis: “the question of what rightfully may be bought and sold has a simple answer: if you may do it for free, you may do it for money.” Although I haven’t read the book, a friend who has read the book carefully tells me that this thesis is an accurate summary of their message.
I’m often sympathetic to that argument, as in the case of donating a kidney for transplant. But I’m not sure it’s always true. It is legal to say to a politician, “I’ll vote for you if you change the zoning rules for a piece of property I own.” But if you say, “I’ll give you a million dollars if you change the zoning for a piece of property I own”, that’s bribery, isn’t it? As a society, we’ve decided to ban the industry of “corrupting politicians.” Is blackmail an industry worth banning?
Consider that privacy and good reputations are widely viewed as being desirable. Most of us would like a bit of privacy and also a good reputation with the general public. That’s why libel and slander are illegal. Legalizing blackmail is effectively creating an industry that devotes resources to destroying privacy and destroying reputations. What other industries are devoted to harming people?
On the other hand, legalizing blackmail also may discourage people from doing certain anti-social activities, especially if the blackmailer’s claims are true (which distinguishes it from the libel and slander examples.). If most blackmail attempts were of the form, “pay me $100,000 or I’ll tell the police that you robbed a bank”, I’d be inclined to support the legalization of the act—as a sort of private law enforcement.
In practice, I suspect that most blackmail involves issues of sex, gender and drugs. (Soon we’ll have to add race to this list.) I don’t expect to convince others of my views here, but let me just say that I believe that our society is unable to think rationally in these areas. Thus I don’t see any great value in legalizing blackmail. On the other hand, if I had conventional American views on these topics then my attitude toward blackmail might be different.
In the comment section to David’s post, someone mentions the example of blackmail involving the “outing” of someone who is gay. He suggests that this is far worse than exposing an extra-marital affair. I agree that it’s very bad, and this is one reason I am uncomfortable with legalizing blackmail, but I also believe that any form of blackmail involving non-coercive private sexual/drug activities is equally bad. I don’t want to legalize an industry that will draw in thousands of people who then devote enormous resources toward digging up dirt that destroys reputations because our sad, sick, gossip-obsessed society views those activities as naughty.
Furthermore, people are often embarrassed by things that most people don’t view as immoral, such as accidentally being seen naked. If two lovers break-up, a formerly private photo can be used for blackmail, even though the existence of the photo does not show immorality. Thus while I mostly agree with Tyler Cowen’s critique of blackmail, I think even he concedes too much here:
So what are some lessons from the apparent greater prevalence of blackmail risk?
First: Be good! Minimize the chance that someone can blackmail you.
Because he said “minimize” and not “eliminate”, he’s right. But I worry that people are too willing to “blame the victim” in blackmail cases.
PS. In the comment section, David adds the following:
Peter Jaworski informs me that I misunderstood the meaning of the word “may.” He and Jason Brennan use to refer to what’s ethically permissible, not what should be legal.
My major concern is over what should be legal.
READER COMMENTS
robc
Feb 15 2019 at 2:10pm
I think your initial example fails because politicians shouldn’t have the power to change (or create) zoning at all.
And I am not sure how exchanging a vote for a zoning change is any less bribery than money. Maybe the laws on bribery should be expanded to include that case too.
Scott Sumner
Feb 15 2019 at 6:26pm
robc, I am opposed to zoning, but I certainly believe politicians should have the power to change zoning. We elect politicians to decide public policy issues.
robc
Feb 18 2019 at 8:55am
Your “public policy issue” is my “fundamental property right”. I thought we elected politicians to protect the latter.
Did I read Common Sense wrong?
Robin Hanson
Feb 15 2019 at 7:08pm
Your argument against blackmail would seem to apply just as well to gossip. If there’s harm from people learning and telling about sex/drugs etc, then gossip would produce those harms.
Scott Sumner
Feb 15 2019 at 10:04pm
Robin, No, it doesn’t apply to gossip because the costs of banning gossip almost certainly outweigh the benefits. In contrast, the costs of banning blackmail probably don’t outweigh the benefits.
Mark Z
Feb 15 2019 at 11:27pm
I don’t think you have a strong argument that isn’t worth the cost, say, to publish information on someone’s sexual behavior or relationships. What’s the cost of banning tabloids?
I’m also not sure I agree the focus of blackmailers would be what you think it would be. Most people would shrug off the discovery that Greg from accounting is gay; he wouldn’t get fired for it. With respect to extramarital affairs, does a person really have more of a ‘right’ to keep that secret than a spouse has a ‘right’ to know? Do people not have a right to reduce their association with people who cheat on their spouses if they think that’s egregiously wrong? Doesn’t prospective employee have a legitimate interest in knowing if his perspective employer mistreats his employees, even if not illegally? I don’t think it can be assumed that most of the information flow that would follow from legalizing blackmail would be more harmful than helpful.
David Henderson
Feb 16 2019 at 12:00am
This is similar to part of the argument that Block and Gordon make.
Scott Sumner
Feb 16 2019 at 12:08pm
Mark, Banning tabloids is extremely costly, as it means tearing up the 1st amendment to the Constitution. Banning blackmail does not do that.
Your example of gays sort of proves my point. A few decades ago, there were large costs with being “outed”. Today that is much less true, as you say. But what does that tell us? It tells me that at any given moment in time, society’s sexual ethics are arbitrary, hypocritical and unreliable. I’d rather leave all that to the private sphere, at least where coercion is not involved. In my view, gossiping on someone else’s private sexual behavior is despicable, including the exposure of extramarital affairs. But I also understand that most Americans don’t agree with me, so we’ll have to agree to disagree on that point.
Legalizing blackmail might well result in a dramatic increase in the size of the industry. Breakups of romantic relationships will become much more painful than they already are, as the threat of blackmail will always be in the air.
It’s not about “rights”, it’s that I don’t want to encourage the rapid growth of an industry that aims at destroying people’s privacy.
You said:
“With respect to extramarital affairs, does a person really have more of a ‘right’ to keep that secret than a spouse has a ‘right’ to know?”
No, and I obviously never claimed otherwise.
Mark Z
Feb 17 2019 at 2:36pm
“Banning blackmail does not do that.”
I think that may be a matter in dispute here. Does guaranteeing freedom to do an activity by definition guarantee the right to condition doing that activity on the receipt of payment? This seems to be what the Supreme Court decided in the Citizens United case. Critics argue that “money is not speech,” but the decision implies that if one is to enjoy freedom of speech (as guaranteed by the 1st amendment), one therefore enjoys the freedom to pay or receive money – without being censured or regulated by the state – to broadcast speech. Would you agree that this is the correct interpretation? And that laws against prostitution inhibit sexual freedom because, even if the participants are not prohibited from having (or not having) sex, the freedom to condition participation on payment is implied by freedom to engage in the activity? If one takes this interpretation (as the Supreme Court selectively takes) then outlawing the condition of speech on receipt of payment would already violate the 1st amendment. If one rejects this position, then that would open the gates for regulation of payment or spending of money on any activity otherwise protected by the constitution unless done ‘for free.’
Scott Sumner
Feb 18 2019 at 4:07pm
Mark, If the Supreme Court were willing to go that route and legalize prostitution, and all other activities that are legal when money is not involved (kidney donations, etc.), than I’d be willing to legalize blackmail. It’s a trade-off I would gladly accept. Obviously that was not the rationale used by the Supreme Court, and there is no evidence that our society is going in that direction.
Bribery is another interesting case. A possible compromise would be to legalize bribery and mandate public reports of any bribes accepted. That would probably discourage bribery, as voters would not favor politicians that admitted to accepting bribes.
Robin Hanson
Feb 16 2019 at 5:41am
I just don’t see that, and would need more evidence to be convinced. Remember we don’t need our ban to completely effect; that won’t happen for either gossip or blackmail. But if we ban either, then sometimes we’ll catch people, and that will decrease the activity overall. So why is doing that worse for gossip than for blackmail?
Scott Sumner
Feb 16 2019 at 12:15pm
Robin, Banning gossip means tearing up the first amendment. The standard argument for the 1st amendment is that while, considered in isolation, there are some forms of speech that we’d be better off without—say the advocacy of Nazi ideas, we have discovered that it’s better to have a blanket rule in favor of free speech, than have the government try to adjudicate each case individually. Just imagine how difficult it would be to litigate every single example of gossip! How do we even define gossip?
In contrast, blackmail is relatively rare, and the quid pro quo involving money makes it easy to draw a red line. Even if the blackmail is about something minor–say someone picking their nose–it’s easy to identify blackmail if there is a demand for money in exchange for keeping quiet. I’ve gossiped hundreds of times in my life, but never once asked for money to keep quiet, and I believe I’m typical.
Michael Watts
Feb 15 2019 at 8:29pm
Law enforcement. Tax collection. Tort litigation. The military.
Scott Sumner
Feb 15 2019 at 10:07pm
Michael, I don’t agree. Military, police, etc. are devoted to protecting people’s rights. Threatening to release nude pictures or threatening to out a gay person do not protect people’s rights. You are spending resources producing output that harms people, in order to earn money.
Mark Z
Feb 15 2019 at 11:34pm
Does short selling not harm people? Maybe we should outlaw short selling.
Of course, the harm rendered by short selling is often warranted. The company is overvalued, so it’s efficient that it’s resources be reallocated. That means harming workers and investors in that business, of course.
Harming someone’s reputation by exposing his affair may likewise lead his wife to ‘reallocate’ and leave him; that a business owner mistreats his employees and induce prospective employees to look elsewhere for work. You’re a utilitarian, Scott, surely you understand that harming one person may help others.
Scott Sumner
Feb 16 2019 at 12:20pm
Mark, Of course I understand that, which is why I said I’d favor blackmail if it was mostly about exposing bank robbery. But it’s mostly about exposing private and embarrassing activities between consenting adults, or nude pictures.
As for “affairs”, who are we to assign blame? Very few people actually know what goes on within a given marriage. A woman might have an affair because her husband is cruel (or ignores her), and she doesn’t want divorce for the sake of the children. A husband might have an affair because his wife lost interest in sex. Who am I to judge the private sexual behavior of others?
Mark Z
Feb 17 2019 at 3:01pm
Legalizing blackmail wouldn’t require you to judge or blame anyone. Anyone can judge or not judge anyone as they please. It would be up to each person to decide what information is relevant to how they interact with others, rather than the state deciding beforehand what we should or shouldn’t care about.
Scott Sumner
Feb 18 2019 at 4:10pm
Mark, You misunderstood my point. I was responding to people who claimed that blackmail is fine because it discourages bad behavior. (I think we all agree the victim is harmed.) I’m saying that I don’t see any evidence that it discourages bad behavior, in most cases.
Michael Watts
Feb 16 2019 at 12:21am
The police may be nominally devoted to protecting people’s rights; the military is not.
All of the groups I mentioned perform their role by the means of harming other people. It’s all they do.
Blackmail is fundamentally the same project as American-style tort litigation except that it punishes those who violate social norms rather than those who violate the law. Anyone is free to search for and prosecute violators, generally by imposing a monetary fine.
Scott Sumner
Feb 16 2019 at 12:26pm
Michael, You said:
“Blackmail is fundamentally the same project as American-style tort litigation except that it punishes those who violate social norms rather than those who violate the law. Anyone is free to search for and prosecute violators, generally by imposing a monetary fine.”
That’s exactly why I oppose blackmail. We have a society have wisely decided not to outlaw nude pictures, or being gay, or having an affair. To the extent that blackmail is a private form of law enforcement in those areas, I believe it’s unwise. If most blackmail were about exposing bank robberies, than I’d favor blackmail.
Here’s just one example of why I have little faith in society’s sexual ethics. How many people claim that porn is immoral? What percentage of men have looked at porn? Our ethics are saturated with hypocrisy, and blackmail takes this societal failure and turns it into an engine of destruction.
Michael Watts
Feb 19 2019 at 5:16am
This seems backwards. Blackmail doesn’t involve publishing someone’s dirty secrets. That’s legal. Blackmail consists of refraining from publishing someone’s dirty secrets.
If you believe that, say, being gay shouldn’t be punished, but being gay is a violation of social norms, then shouldn’t you believe that gay men should have the option of buying others’ silence? Why remove the incentive for snoopers to keep their mouth shut?
Do you believe that nobody will be interested in who might or might not be gay, as long as the option to blackmail them isn’t present? That’s quite false, and the analogous argument is false as to all social norms that might embarrass someone enough that they’d be willing to pay for silence.
Michael Watts
Feb 19 2019 at 10:00pm
May I ask why my response here has been vanished?
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The Original CC
Feb 16 2019 at 8:12am
Is everyone here okay with J Edgar Hoover blackmailing presidents and Congressmen is order to get them to do what he wanted?
Scott Sumner
Feb 16 2019 at 12:27pm
CC, Excellent example.
Mark Z
Feb 17 2019 at 3:58pm
Do you think it should be illegal for restaurant customers to bribe (tip) the waitstaff in exchange for better service? If not, does that mean one must favor legalizing bribing politicians? The fact that public officials aren’t engaged in voluntary transactions but exercise coercive power over citizens daily undermines the validity of analogy between them and private citizens.
Scott Sumner
Feb 18 2019 at 4:12pm
I favor allowing the bribing of waiters, but not politicians, as the two cases are very different. Bribes of politicians often encourage destructive behavior.
Benjamin Cole
Feb 17 2019 at 9:46pm
Is a protection racket a form of blackmail?
What if the “protection” is somewhat real? That is, the state is so weak, your store could get robbed at gunpoint unless you pay for extra protection.
On another note, I have always wondered why President Trump is said to have paid “hush money” to Stormy Daniels and the Playmate, and not that “he was blackmailed.”
Is paying hush money different from paying for “protection”?
Michael Sandifer
Feb 18 2019 at 2:06pm
My guess is that legalizing blackmail could become problematic when it comes to child molesters paying off victims and/or parents of victims, but for which the cost is acceptable to the perpetrator.
Mark Z
Feb 19 2019 at 2:57am
Actually, for many crimes, the use of blackmail as a substitute for prosecution may be net beneficial. The victim of the crime gets compensation he wouldn’t get if the perpetrator simply went to jail, the perpetrator avoids going to jail (which he regards as worse than the payment, otherwise he would reject the blackmailer’s offer), and society benefits too by not having to pay for incarceration (and the perpetrator possibly remains in the legitimate workforce). Of course, if the ‘fine’ imposed by the blackmailer isn’t a sufficient deterrent, then the criminal may be more likely to commit more crimes than if incarcerated, but I think there’s a strong case to be made that for most crimes, the gains outweigh the cost of somewhat reduced deterrence from a lesser punishment.
Of course, blackmail probably isn’t the optimal way to implement this kind of ‘restorative justice.’ Still, I don’t think it’s necessarily a bad idea to allow victims (at least for some crimes, maybe most) to bargain with criminals to accept financial restitution in exchange for reducing or foregoing incarceration.
Michael Sandifer
Feb 19 2019 at 4:25am
Yes, what a policy for the age we love in! In addition to the other privileges that come with being rich, you also get to buy your way out of prosecution! What could go wrong?
For that matter, what’s then to stop people from making up stories to blackmail people with, particularly rich people? Much harm can be done to a reputation, even with accusations that’d never hold up in court.
Mark Z
Feb 19 2019 at 9:42am
“Yes, what a policy for the age we love in! In addition to the other privileges that come with being rich, you also get to buy your way out of prosecution! What could go wrong?”
Fewer people end up in jail, victims are made better off. Sounds like a plus, unless those benefits rank lower on one’s priorities list than punishing rich people.
“For that matter, what’s then to stop people from making up stories to blackmail people with, particularly rich people?”
In your above sentence, you were concerned it would privilege rich people; here, you’re concerned it would disproportionately harm them. In any case, what’s to stop people from making up stories about people currently? I know it’s popular to be pessimistic about the quality of human reasoning, but there’s a reason most people don’t believe what they read in the tabloids by the check out aisles at the grocery store: constantly lying does in fact diminish one’s credibility. Most people aren’t infinitely gullible.
Michael Sandifer
Feb 19 2019 at 4:28am
In general, I think there’s too often a nihilism among ideological libertarians and too little appreciation for common law and the many centuries of experience it took to develop it.
Mark Z
Feb 19 2019 at 9:43am
One could fairly criticize many ‘ideological libertarians’ of being Quixotically rigid in their principles (in this case, the non-aggression principle). That is, however, the diametrical opposite of nihilism.
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