Blackmail is illegal and for good reasons, right? Well, you may not have ever thought about it, but actually it seems as if there really are few good reasons for making blackmail a crime other than we think it should be. UCLA law professor Eugene Volokh of The Volokh Conspiracy explains why our intuitions on the matter don't have much logical warrant. Here's the basic argument:
1. I am generally free to publish embarrassing information about you - in fact, I generally have the constitutional right to do so. Likewise, I am free to keep quiet about it.
2. I am generally free to ask you for money in exchange for my doing something (here, keeping quiet) that I have no preexisting legal obligation to do. I am also free to ask you to perform some service in exchange for my doing something that I have no preexisting legal obligation to do. I am even free to ask you to cast a vote in exchange for my doing at least some things that I have no preexisting legal obligation to do: For instance, a pro-choice newspaper editor may generally say that he will endorse a politican for reelection if the politician votes against an abortion restriction.
3. But if I ask you for money or a service in exchange for my not revealing embarrassing information about you (and recall that I have no preexisting legal obligation to keep quiet), then that's a crime.
The question is: Why is the combination of 1. and 2. a crime if neither of them alone is a crime?
Volokh, who is a wiz (He got his B.S. in math/computer science from UCLA when he was 15), thinks blackmail should be illegal, but confesses that he doesn't know exactly why. The question arises as a result of a blog post by one Michael Rogers who threatened to out a closeted gay Republican U.S. Senator if he did not vote against the confirmation of Samuel Alito. You can read Volokh's ruminations on this legal conundrum at the link.
For what it's worth, only one Republican voted against Alito. If we hear nothing more about this sordid affair the assumption will be that Rogers' condition was met. Since only one Republican voted the way the blackmailer directed, that senator will be assumed to be the target of the blackmail, and, rightly or wrongly, he will be "outed" even though he voted the way Rogers demanded.
This could be very unfair to that senator because one of the Yay voters may well have been the target, but Rogers might have, for whatever reason, changed his mind about outing him. If Rogers does change his mind, and doesn't publicize the fact that he has changed his mind, then people are likely to wrongly suspect that the lone Nay voter is in fact the closet homosexual.
We wonder if that senator could then sue Rogers for defamation. Or doesn't it constitute defamation anymore to cause people to think that someone is gay?
