David Henderson recently raised doubts about whether blackmail should be illegal, and Robin Hanson advocated legalizing blackmail. David cited the argument that activities that are generally legal (such as gossip), should not become illegal merely because money changes hands. Robin cited the argument that blackmail is a way of enforcing society’s norms, and that the threat of blackmail might deter bad behavior. Tyler Cowen argued against legalizing blackmail, as did I. One of Robin’s commenters pointed out that one of society’s norms is “blackmail is wrong.”
The following story is intended to be a humorous way of exposing the internal contradictions of blackmail:
Let’s suppose that after years of effort, Robin gets a conservative Virginia legislature to legalize blackmail. Robin argues that this will help to enforce society’s norms against bad behavior. One of Robin’s colleagues is a grouchy 75-year old man. He overhears gossip that a female GMU student from a good family is engaging in prostitution on the side, to earn money for her living expenses. The old guy decides to try to enforce society’s norm against prostitution by blackmailing the young woman.
Robin encourages him to stop, arguing that society’s attitudes against prostitution are based on the idea that an activity that is OK when no money changes hands becomes immoral when turned into a business transaction. He worries that the act of blackmailing a student for engaging in an activity tainted by money will tend to undermine the argument for legalizing blackmail (another activity widely viewed as immoral when it is turned into a commercial transaction.) Alas, his pleas are not successful, as the old guy is mean and spiteful.
Soon after, Robin’s colleague Tyler hears about what’s going on. Tyler opposed the legalization of blackmail and sees this example as a way to discredit the policy. But he is too polite to raise the issue publicly as he doesn’t want to embarrass the young woman.
Things change when Tyler’s twin brother (Tyrone) gets wind of what’s going on and hatches a devious plan to get revenge, to give the old man a taste of his medicine. Tyrone begins blackmailing the old professor, threatening to expose the old guy’s blackmailing of the young coed. Tyrone reasons that he’s merely enforcing society’s norms against blackmail, particularly when it’s a mean old man blackmailing a vulnerable young woman. Even though the GOP-dominated Virginia legislature legalized blackmail, among the old professor’s colleagues at GMU there remains a widespread view that blackmail is a despicable activity.
OK, that’s just a fanciful story. But if blackmail is useful because it enforces society’s norms, what are we to make of the fact that one of society’s norms is that many activities become immoral as soon as money is introduced into the equation (as with prostitution)? And the norm that blackmail itself is immoral?
Great literature and great films often turn people violating society’s norms into sympathetic characters, especially when they are ground down by “the machine”. I suspect that the almost universal public opposition to legalizing blackmail reflects society’s view (subconscious to be sure) that enforcing these norms (especially for non-criminal activities) requires a “light touch”, and that turning shaming into a highly profitable industry will do more harm than good. It will turn society into a mean, backstabbing culture. The people hurt most will be sensitive good people who made a mistake, not callous gang members who don’t care if others think they are evil.
Dueling was outlawed in the 19th century, after society realized that this ostensibly “voluntary” activity was not actually voluntary at all, and that the harm done exceeded the very real benefit of discouraging men from engaging in personal slights that annoyed other men. Yes, men were free to decline a duel (at a cost to their reputation), and people today are free to not pay blackmailers. But I’d rather live in a world where people don’t have to make those choices.
READER COMMENTS
Mark Z
Feb 21 2019 at 7:09pm
“Dueling was outlawed in the 19th century, after society realized that this ostensibly “voluntary” activity was not actually voluntary at all…”
Of course it was voluntary. The fact that suffering a reputational cost to making or not making a decision doesn’t make it involuntary. I don’t think that’s the crux of the basis for the illegality of dueling. After all, if the possibility of significant non-physical “harm” such as reputational harm makes a decision involuntary and justifies state coercion, then you must be of the opinion that we live in far too free a society and need a lot more laws (and prisons) because that describes a great many things people can legally do today. It also forms the basis of the case against capitalism and classical liberalism: that people aren’t really free, but are indirectly coerced by social forces which can only be mitigated by “corrective” coercion.
Scott Sumner
Feb 22 2019 at 1:02pm
It’s not true that I “must believe” the things you say I must believe. I judge all potential laws on a pragmatic utilitarian basis. Most potential laws have greater costs than benefits. A law against blackmail is not very costly, partly because blackmail is easy to define, unlike other activities that hurt reputations, like gossip.
Mark Z
Feb 21 2019 at 7:23pm
Also, I don’t think the ‘social norms’ argument is convincing. I think the defense of the utility of blackmail (I’m agnostic on that question; I think the stronger case for legalizing it is the one rooted in juristic and ethical principles than usefulness) is far more individualistic and ‘Hayekian’ in nature: that what knowledge is useful for a particular decision is best determined by the individual making it, regardless of societal norms. In the hypothetical ideal world where a market for private information made nearly all such information available, it would simply mean people who don’t want to marry, be friends with, or interact with people who wear blue socks in private would be able to avoid doing so, and people who don’t want to interact with people who wear green socks in private wouldn’t have to do so; the putative value, IMO, has nothing to do with enforcing broad social norms, but facilitating the indulgence of idiosyncratic preferences, with the underlying premise being that such preferences (and therefore the usefulness of the information for one’s own purposes) are purely subjective.
Benjamin Cole
Feb 21 2019 at 7:33pm
Evidently, when politically convenient, we can redefine blackmail as someone paying “hush money .”
So, there is no blackmail. On occasion, people pay hush money.
Mani G
Feb 22 2019 at 11:47am
I don’t think that ‘Blackmail’ and ‘Hush Money’ are the same thing even though some might use them interchangeably when it suits their political purpose.
In blackmail, person A threatens to expose person B’s secrets if person B does not pay person A.
But in a hush money payment, person B proactively decides to pay person A in case one day person A decides to spill the beans. There is a huge difference between the two cases since person A has nothing to do with the situation here. Although the ‘threat’ is always there, this is more a perceived threat by person B than an actual threat.
Lorenzo from Oz
Feb 21 2019 at 7:36pm
Kwame Anthony Appiah has an extension discussion of duelling in his book, The Honor Code.
john hare
Feb 21 2019 at 8:15pm
Has there been a society anywhere that had blackmail as a legal activity? Some observed results would be quite useful to these discussions.
Kevin L
Feb 21 2019 at 8:26pm
Scott, are you against drug legalization because the short term disequilibrium of repealing the laws might be worse than keeping them, even if the long term equilibrium would be better?
Scott Sumner
Feb 22 2019 at 1:03pm
Kevin, No, I favor drug legalization, for pragmatic reasons.
David Henderson
Feb 21 2019 at 11:33pm
Scott,
You write:
turning shaming into an [sic] highly profitable industry will do more harm than good.
Shaming IS a highly profitable industry. And that’s in a society where blackmail is illegal. Look at the ways people went after that Covington school kid. They were shaming him to the max. And it was for-profit networks and newspapers that did it.
What you seem to be missing is that allowing blackmail gives people a way of avoiding shaming.
You write:
Yes, men were free to decline a duel (at a cost to their reputation), and people today are free to not pay blackmailers. But I’d rather live in a world where people don’t have to make those choices.
You should at least state it correctly. You not only would rather live in a world where people don’t have to make those choices; you would rather live in a world where people don’t get to make those choices. You’re removing a choice.
Moreover, I think it’s dangerous to advocate laws based on what kind of world you want to live in. I would like to live in a world in which young people don’t go around with nose rings. But I would never advocate laws against nose rings. I believe in tolerance.
Scott Sumner
Feb 22 2019 at 1:10pm
David, You said:
“You should at least state it correctly. You not only would rather live in a world where people don’t have to make those choices; you would rather live in a world where people don’t get to make those choices. You’re removing a choice.”
Both are true. I don’t want people to have to make those choices, and I don’t want people to get to make those choices.
As far as the Covington kid being shamed, unless I’m mistaken the legalization of blackmail would not have prevented that. As for your argument that legal blackmail would reduce the total amount of shaming—that’s certainly possible, although I doubt it. But blackmail has big costs even when people don’t get shamed, just as dueling had big costs when people agreed to duel and thus avoided the shame of turning down a duel request.
David Henderson
Feb 22 2019 at 4:05pm
Scott,
You wrote:
Both are true. I don’t want people to have to make those choices, and I don’t want people to get to make those choices.
Good. I’m glad we at least agree on that.
You wrote:
As far as the Covington kid being shamed, unless I’m mistaken the legalization of blackmail would not have prevented that.
You’re probably right. I’m simply noting that it’s important to have the right baseline. The baseline with blackmail being illegal is not “no shaming;” it’s a great deal of shaming.
As for your argument that legal blackmail would reduce the total amount of shaming—that’s certainly possible, although I doubt it.
I don’t think I argued that. But now that you’ve raised the issue and I’ve had time to think about it, I think it’s not only possible but also likely.
Scott Sumner
Feb 22 2019 at 8:09pm
Yes, I agree that there’d be a lot of shaming even without blackmail.
Bedarz Iliachi
Feb 22 2019 at 12:35am
The opprobrium visited on prostitution is not solely due to its commercial nature. After all, fornication itself is (or was) a violation of the social norms and was socially odious.
Scott Sumner
Feb 22 2019 at 1:11pm
True. But on college campuses today, the stigma from prostitution is far, far greater than the stigma of unmarried sex. It’s not even close.
Michael Sandifer
Feb 22 2019 at 6:30am
David Henderson,
If Michael Jackson had merely been blackmailed for the perhaps 10s of millions of dollars he paid to the families with which he settled cases, the related accusations may never have become public and then a warning to the public might have been foregone.
I think one good reason to outlaw blackmail is to avoid allowing rich perpetrators of crimes to more easily keep their crimes quiet. It’s hard enough to bring to light many sexual crimes today, without allowing blackmail to occur.
Also, I think that the wealthy would be particular targets for blackmail, even by those who would simply invent plausible stories about them. It would be easy to further hurt the careers of people like Tim Cruise, for example, by those who want to make up stories about strange religious behavior and/or that feed the rumors about him being gay. While being gay doesn’t come with the disapprobation it once did, it can still be damaging for famous men as it may make them less appealing to straight women.
Wealthy, famous people would especially be vulnerable to blackmail by people they hire, some of whom would have exclusive access to plausibly witness events that never occurred.
I don’t think we should particularly protect the rich and famous, nor particularly make them vulnerable to extortion.
I also think that it’s a bad idea to legally allow for increased incentives to obstruct justice, generally. If blackmail is legal, should it be legal to blackmail someone under criminal investigation? You can still make blackmail illegal when it would represent obstruction of Justice, but then you leave it legal, or at least non-criminal, to invent stories to damage the reputation of those under criminal investigation. People under criminal investigation are obviously potentially much more vulnerable than otherwise, and in many cases may need all the money they can find to cover their legal defenses.
As a a rather public figure yourself, what would you do if two or three down on their luck former students decided to blackmail you by making up stories about you sexually harassing them, assaulting them, or trading favorable grades for sex? At least under current law, you could, in my view, properly punish such behavior. What if these are people of modest means, who it essentially makes no sense to sue for slander, and if no judge would uphold a civil claim against them anyway? Slander/libel are hard to.prove.
RPLong
Feb 22 2019 at 10:57am
If the blackmailer correctly prices the blackmail offer, then this will be no cause for concern. A world in which fewer crimes come to light due to increased prevalence of blackmail is a world in which the price of blackmail is below market equilibrium!
David Henderson
Feb 22 2019 at 7:30pm
Michael,
You write:
Realistically, what I would probably do is nothing. I think my reputation is quite good and that they would have trouble tarnishing it badly. Of course, I could be mistaken.
You write:
That’s not true. The worst I could do to them is report them. Then I would need to rely on someone else to punish them. That would involve a trial. The outcome would be uncertain.
You write:
Remember that the issue is whether blackmail should be illegal. What you say they could do if blackmail were legal is something they can do now even with blackmail being illegal. I don’t get the point you’re trying to make.
Beyond that, I want to point out that I think it’s a really bad idea to judge public policy by how I would feel about it if the policy I favor would cause bad consequences for me. I think there’s far too much of that in current discussions of government policy, whether it’s Joe Biden arguing for Amtrak subsidies because he takes the train to Delaware or farmers arguing for subsidies because their land will be worth less without it.
Michael Sandifer
Feb 22 2019 at 9:13pm
David Henderson,
You replied:
“Remember that the issue is whether blackmail should be illegal. What you say they could do if blackmail were legal is something they can do now even with blackmail being illegal. I don’t get the point you’re trying to make.”
Yes, people could make up stories about you today, but the option of legally blackmailing you provides extra incentives. Otherwise, they have to try to use the legal system to extort you, meaning finding a lawyer to take their case and ultimately getting a settlement or judgement in their favor. The blackmail option provides a lower bar for dishonest people to profit from extortion.
Michael Sandifer
Feb 22 2019 at 6:40am
I think this is a case in which it is dangerous to want to counter common law based on centuries of experience based solely on a relative lack of mentally available ideas about the cost-benefits of blackmail. While certainly not all well-established common law has been justified, the bulk of it survives because it’s demonstrated its purpose for centuries.
There’s a real danger in what I consider an almost flippant nihilism, in the extreme cases.
Michael Sandifer
Feb 22 2019 at 7:15am
David Henderson,
In case you think you might be more comfortable being quietly, legally extorted for money, instead of being publicly extorted, due to blackmail being illegal, consider that making blackmail legal opens you up to extortion attempts by bluffers.
Then, there’s the questions about whether legal blackmail should lead to legally enforceable contracts in the cases of deals being reached. Otherwise, people could blackmail continuously, always coming back for more money.
Matthias Goergens
Feb 22 2019 at 7:56am
Making blackmail illegal might just be a good example of the contract theory of society?
Eg in Switzerland paying ransom is illegal. That serves as a pre-commitment device to make kidnappings less likely. Outlawing blackmail (and especially the paying of blackmail demands) can work similarly.
So ethics aside, it can make a lot of sense for the average citizen to support laws that outlaw blackmail.
RPLong
Feb 22 2019 at 11:03am
I think it’s important to keep in mind that people who are blackmailed have often committed serious crimes or moral breaches.
It’s hard to feel sympathy for a racketeer, for example, who is found out and subsequently blackmailed; and it’s not clear to me that society is worse-off in a world in which racketeers are blackmailed rather than prosecuted. The proper objection to raise here is that the blackmailer profits at the racketeering victim’s loss. But in any case, it’s not the blackmailing victim we should feel sorry for here.
And think of the potential upside. Suppose the racketeering victim and the blackmailer coordinated on terms by which both could be made better off under a legal blackmailing scenario than they would have under the traditional legal system.
No, Scott, it’s not at all obvious to me that legalizing blackmail would make society meaner or more back-stabbing. I think there is good reason to suspect the opposite.
Scott Sumner
Feb 22 2019 at 1:15pm
RPlong. In a previous post (and comment section), I said I’d favor legalizing blackmail if it could be shown that it usually applies to ordinary crimes like bank robbery, rather than for threats of releasing nude pictures or outing gay people or exposing consensual romantic affairs.
RPLong
Feb 22 2019 at 2:16pm
Well, then why not just admit that you favor the legalization of blackmail in those particular cases, and add things like compromising photos or consensual relationships as exceptions? There is certainly no need to take a stance against all blackmail if your problem is only with blackmail under certain conditions.
For my part, I happen to think that those exceptions are additional reasons for blackmail’s legalization. I, personally, have no moral objection to nude photography or homosexuality. A world in which high-profile people are incentivized to admit to having engaged in perfectly moral behavior is a world in which that perfectly moral behavior becomes more widely acknowledged. Widespread acknowledgement is a stone’s throw away from widespread acceptance, if not a necessary precursor. In most of the Western world, people already don’t tend to care if their neighbors are gay, and the only appeal of their neighbor’s private photos is voyeuristic value, which is far from universal.
I certainly didn’t care when I learned that compromising photos of Jeff Bezos exist, and only cared about the blackmail side of the issue because I thought that his taking public responsibility for his photos and his extramarital affair were morally praiseworthy.
IVV
Feb 22 2019 at 12:31pm
If there is a real, valuable threat created by the public dissemination of a piece of information, then why hasn’t that information been released already?
Part of the idea behind legal blackmail is that there is information, legally obtained, that would damage a target if revealed. However, if the information is legally obtained, then there is someone who would value the release of that information without recompense, like via a gossip channel, for example.
Would Gawker have been protected in a world with legal blackmail?
Steve
Feb 22 2019 at 1:58pm
My biggest problem with Robin Hanson’s arguments about blackmail and the subsequent responses is that he and his interlocutors don’t know what blackmail is. Not to get into the legal weeds, but what Hanso is really talking about is extortion. I put a gun to your head and tell you to give me money. That is extortion and that is just another form of theft. Theft is bad. Any argument that theft is beneficial to society is stupid. Paying people to keep quiet about your secrets is perfectly legal and done all of the time. Threatening to harm someone unless you get paid is a crime. Can I harm you by damage to your reputation? Yes, but this is a matter of degree. Our jails are not full of people who got paid to stop gossiping. There has to be a threat to harm and an intent to harm under the law. And, not all harm would rise to the level to support a charge of extortion.
Blackmail is not threatening to tell some embarrassing gossip about someone unless they give you money. Blackmail is a threat to go to the police and report that another person has committed a crime unless paid not to. This obviously is a crime and should be. Either the underlying crime has occurred or not. If not, the blackmailer is threatening to lie to the police unless paid. Of course, that should be a crime because lying to the police is a crime. If the underlying crime that the blackmail is threatening to expose did happen, then the blackmail is asking to be paid to hid evidence from the police, which is also a crime. Hanson’s argument only sound plausible because he mischaracterizes what blackmail and extortion are. He thinks that the blackmail is criminalizing conduct that would otherwise be legal simply because money is changing hands. That is simply not true. I suppose it is possible that a blackmailer could draft a contract that says, pay me and I won’t tell the police unless they ask. But, those types of agreements are routine and legal.
Bob Murphy
Feb 23 2019 at 5:24pm
Wow! Steve I must confess I was getting ready to drop a snarky comment on your claim, along the lines of, “OK so all these scholars arguing about this for 30+ years don’t even have the premise right?” (I’m referring to the 1985 article by Block and Gordon in a law review that Tyler Cowen / David R. Henderson mentioned in their discussions.)
But in the commentary surrounding the National Enquirer/Bezos case, I haven’t seen anybody–even a law prof saying Bezos could sue them–mention that blackmail in that sense is illegal.
I’m looking into this more, but I’m admitting that even if your claim is wrong, it’s not the slam dunk I thought it would be when I first read it.
In any event, the way libertarian economists analyze this issue, by “blackmail” (rather than “extortion”) they mean someone asks for money to refrain from doing something he has the legal right to do. E.g. if I see you on a dinner date with your mistress, I could say to you, “I won’t tell your wife if you give me $500.” *That* is the kind of thing that Block/Gordon/Hanson/Henderson/me think should be legal, even if we agree it’s possibly a jerk move. (Just like the standard libertarian position is that it should be legal to sell heroin, even if some libertarians think that’s an immoral profession.)
McMike
Feb 22 2019 at 3:26pm
I thought dueling went out because the weapons got too accurate
Picador
Feb 22 2019 at 4:29pm
I think it’s important to note that blackmailers don’t always ask for money; they often extort eg sex.
So the comments about social norms about something becoming immoral when money changes hands are off base: social norms (among decent human beings rather than the libertarian freaks hanging around this thread) disapprove of ABUSE OF POWER. And of course giving anyone a significant amount of power over someone else is a surefire way to ensure that that power will be abused. Wealth and income inequality is one of the ways these power imbalances arise, but of course one person having the ability to punish another (through physical violence, releasing harmful information, firing them from their job etc) also opens up the risk of extortion. Decent people disapprove of extortion, regardless of the nature of the threatened harm. If you want your children to live in a world where they can have sexual favours extorted from them by anyone with power over them, I really don’t know what to say to you.
Mike Davis
Feb 22 2019 at 6:19pm
Maybe this is more a question for Robin, but does the threat of blackmail help enforce norms or does it make it easier to violate norms?
Suppose there is a norm that is enforced by social sanction (e.g., if you are known to have worn blackface, people will not vote for you.) Now someone who wishes to violate the norm will weigh the benefits against the expected cost of the social sanctions. But what if the norm breaker can avoid the social sanctions by paying a blackmailer? Doesn’t this mean that the cost of violating a norm is lower than it would otherwise be? If so, doesn’t that mean we’d get more violations of norms?
If that seems weird, try this analogy. One reason to make bribery illegal is because bribery lowers the cost of breaking laws. If I can pay the cop $100 to avoid a $200 speeding ticket, I’m more like to speed. In one sense the cop is “blackmailing” the speeder with the threat of telling the judge what happened.
Of course, this cost-benefit analysis changes if allowing the allowing blackmail or bribery makes it more profitable to discover violations and so increases the probability of detection. Potential blackmailers have an incentive to search for incriminating pictures of politicians wearing blackmail. Bribe taking cops have an incentive to catch speeders.
Bob Murphy
Feb 23 2019 at 5:16pm
For those who can’t get enough, I elaborated upon David R. Henderson’s post in this article. I showed how a legalized blackmail industry might have led to a better result in the infamous Louis C.K. case.
Lorenzo from Oz
Feb 25 2019 at 9:29pm
Duelling was a way of defending your social capital. It declined because society developed other ways of establishing trust worthiness.
https://www.youtube.com/watch?v=yfO593iH_7U
Comments are closed.