Saturday, October 3, 2009


Crimes vs. Sins: Letterman's Blackmailer

I actually haven't seen the full clip yet; I've been traveling like crazy and my internet connection in this hotel is slooooooow. But I'm sure you all know about David Letterman's recent announcement.

I don't know all the details, so there might be something specific to the story that really shows the producer engaged in (what ought to be) criminal behavior. However, as Walter Block argued with great flair, in general the police shouldn't punish blackmailers. Yes, you are arguably a moral degenerate, a huge jerk, etc. etc. if you blackmail someone, but why is it a crime?

If I know a secret about you, and it's something that I have the legal ability to publicize, then how in the world is it a crime if I give you the option of paying me not to do something that is perfectly legal? Now if, say, you start to work for a company, and you sign all kinds of non-disclosure agreements, then it could be a crime if you demand hush money from them to keep your mouth shut about their secret trading strategies, or the special ingredient in their BBQ sauce. But there, you are extorting money under the threat of doing something clearly illegal; it's akin to saying, "Give me some money or I'll stab you."

But if some producer happens to know that David Letterman is building his own special Top Ten List (you know I had to work in some cheesy pun in this post), and if that producer has the legal right to blog about it, talk about it, even to write a book about it, then how in the world is it a crime for him to give Letterman the option of buying his silence?

The way I see it, the only true crime involved with blackmail per se, would be if Letterman paid the guy $2 million, and then the guy went ahead and spread the gossip anyway. Of course, the crime there would be violating the deal, not the offer a deal in the first place.

To repeat: Something can be morally reprehensible and yet not qualify as criminal. For example, it is (and should be) illegal to steal a pack of chewing gum. Yet in the grand scheme, that's a far lesser offense than cheating on your wife, or telling your parents that you hate them just to hurt their feelings. Yet clearly those latter two should NOT be crimes, punishable by the judicial system. So when I make these points, it's not to defend the blackmailer as a nice guy; I'm just saying he shouldn't be a criminal.

Great points.
I agree completely.

sadly, these types of behaviors become crimes because enough people believe they can change or eliminate that behavior through punishment, and they turn to the long arm of the State to institutionalize it.
Well said. And in such a concise and interesting manner, too. I knew there was a reason I keep coming back to your site, Bob. ;)
Now if, say, you start to work for a company, and you sign all kinds of non-disclosure agreements, then it could be a crime if you demand hush money from them to keep your mouth shut about their secret trading strategies

This comment is probably superfluous, but should be stressed that the principle of the matter here is the breach of contract. I mean, if you gave the secret away for free, that would not make it any less of a crime.

I wonder what rationales you could come up with to try to defend blackmail laws. Maybe to remove the incentive of collecting dirty secrets from people... In this case, the extortionist could make a bunch of money by selling the secret to the public, but in many cases, there are only a handful of people interested in buying the secret, and, because of information asymmetries, you may only be in practice restricted to selling the secret to the subject himself (I mean, in the act of selling photos to a wife of his cheating husband you already reveal the misdeed).
Hey, I personally don't even see the need for the state to enforce contract laws (in a big anonymous society honor could be constructed and transmitted like credit rating is). Just trying to make some sense of blackmail laws...
"Give me some money or I'll stab you."

Isn't that the source of government's power?
(xposted from my blog)

If its the government's job to enforce contracts (even private, secret contracts) but the government makes those contracts illegal, than it makes it more likely that a blackmail agreement would blow up in the way that Bob describes.

This is probably why Letterman didn't pay the blackmailer... there's no guarantee that he would have kept his silence. If there was a court that would enforce these agreements, however, than both parties could have been happy.
I've been going back and forth with my wife about this. I actually brought up the same points you made the other night and my wife (who is a lawyer) made some excellent points.

The most compelling of which was that any contract entered into by Letterman at the hands of the blackmailer would certainly have been under duress. And, under contract law, this could never be a valid contract, right?

Anyway, I think that in the case of Letterman approaching the potential blackmailer -- i.e. someone that he knew had incriminating information -- and offering money to keep it quiet. I think that'd be fine (full disclosure that, unlike my wife, I'm not a lawyer). But for it to go the other way? I think that's always coercion.
Isn't adultury breach of the marriage contract? Assuming that the vows made during the marriage included fidelity. Therefore it could be punished legally.
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