Blackmail and Extortion - The Paradox Of Blackmail

One of the most intractable intellectual problems in the criminal law is what Glanville Williams called the paradox of blackmail (p. 163). The problem is that combining two rights makes a wrong. For example, if I threaten to expose a businessman's income-tax evasion unless he gives me a lucrative contract, I have committed blackmail. I have a legal right to expose and to threaten to expose the tax evasion, and I have a legal right to seek a lucrative contract, but if I combine these rights I have committed blackmail. If both ends and means are otherwise legal, why is it blackmail to combine these legal ends and means? Since the 1920s, many theories have been offered to explain this paradox, and a few scholars, led by Walter Block, argue that blackmail ought to be legal since it violates no basic legal right of the "victim" (e.g., Block, p. 225). Even among scholars trying to resolve the paradox, there is no consensus on its resolution (Symposium, pp. 1565–2168).

One approach that is at least descriptively powerful is to look at the relationships between the parties. Consider first informational blackmail. Here the blackmailer threatens to tell others damaging information about the blackmail victim unless the victim heeds the blackmailer's request, usually a request for money. The blackmailer obtains what he wants by using extra leverage. But that leverage belongs more to a third person than to the blackmailer. The blackmail victim pays the blackmailer to avoid involving third parties; he pays to avoid being harmed by persons other than the blackmailer. When the reputation of a person is damaged, he is punished by all those who change their opinion of him. They may "punish" him by treating him differently or he may be punished merely by the knowledge that others no longer respect him.

Thus when a blackmailer threatens to turn in a criminal unless paid money, the blackmailer is bargaining with the state's chip. The blackmail victim pays to avoid the harm that the state would inflict. Of course, this does not effect a legally binding settlement, but the leverage is effective precisely to the extent that the victim believes that he has reached an effective settlement. Likewise, when a blackmailer threatens to expose damaging but noncriminal behavior unless paid money, he is also turning third-party leverage to his own benefit. What makes his conduct blackmail is that he interposes himself parasitically in an actual or potential dispute in which he lacks a sufficiently direct interest. In effect, the blackmailer attempts to gain an advantage in return for suppressing someone else's actual or potential interest. The blackmailer is negotiating for his own gain with someone else's leverage or bargaining chips.

This misuse of another's leverage is perhaps seen most clearly in noninformational black-mail—for instance, where a labor union leader threatens to cause a strike unless he is given a personal payoff. There the labor leader is turning group power and a group dispute to personal benefit. Whoever seeks a personal payoff by credibly wielding the power of a third party to harm the victim is a blackmailer.