The Paradox of Blackmail

The concept of blackmail has long stymied legal scholars and philosophers alike, due to its paradoxical nature. The paradox is simple: blackmail is an illegal act that is comprised of two completely legal acts. In other words, as far as blackmail is concerned, two rights can make a wrong!

For example, this statement is illegal, and would constitute blackmail:

“I know about the affair. I have photos of you leaving the hotel with your secretary. And, if you do not send me $1,000 by tomorrow, I will send the photos to your wife.”

However, the following statement is perfectly legal:

“I know about the affair. I have photos of you leaving the hotel with your secretary. I will send the photos to your wife.”

The following statement is also legal:

“Send me $1,000 by tomorrow.”

So why should the combination of two legal communications become illegal, simply because they are made together? The paradox lies in understanding why legal rights (the right to disclose, and the right to request something of value) suddenly become illegal when expressed together.

Arguments for Legalizing Blackmail

Interestingly, most people feel that, intuitively, blackmail should be illegal; that blackmail feels like it should be illegal. But the question is—why?

This is the harder question to answer. Because, from an academic standpoint, many scholars have argued that blackmail should be legalized. A number of these arguments are well thought-out, and compellingly argued:

• Blackmail should be legalized because it is an economic transaction. As Judge Richard Posner once stated, it is legal to “conduct research into people’s pasts and sell the results to the newspaper.” So why would it be illegal for the researcher to sell the results (or the confidentiality of the results) to the research subject themselves?

• Blackmail should be legalized because it would leave the blackmail victim better off. This line of argument emphasizes the victim’s ability to make meaningful choices. If a potential blackmailer understands that blackmail is illegal, the blackmailer may simply choose to publicize the information to harm the victim. But if blackmail were legal, the potential blackmailer could offer to keep the information secret in exchange for some sum of money from the victim. A negotiation could occur. And ultimately, if the victim places higher value on secrecy, then the victim could pay the blackmailer. But if the victim places higher value on the money, then the victim could choose not to pay the blackmailer. But either way, the victim has the opportunity to pay for nondisclosure.

• Blackmail should be legalized because forms of bribery are legal. To be clear, there are certain types of bribery that are illegal (for example, bribing a public official or witness). However, there are many legal forms of bribery. For example, if John realizes that Bob has discovered his shameful secret, John can legally approach Bob, plead with him to keep it confidential, and offer Bob money to do so. However, Bob cannot approach John to suggest the same transaction. Some scholars argue that because legal bribery exists, it belies reason that the converse (blackmail) should be illegal.

The Real Reason Blackmail is Illegal

Although the arguments for legalization are not devoid of merit and, to the contrary, may be more logical and legally consistent than many arguments against legalization, they feel like they are missing something. And, indeed, they lack a psychological perspective, which is intrinsically tied to the concept of blackmail.

Blackmail taps into deep-seated human emotions; it exploits fear, guilt, and shame for monetary gain. The contemplation of blackmail relies upon assumptions regarding the victim’s emotional state and expected response; the act of blackmail exploits a power imbalance arising from the victim’s desperation.

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Legal Professor Ken Levy has argued that the solution to the blackmail paradox is that blackmail should be criminal for the same reason that menacing, harassment, and stalking are criminal—because they put the victim into a state of particularly great fear and anxiety. As Professor Levy notes, Lord C.J. Lane once stated that “in the calendar of criminal offences, blackmail is one of the ugliest... because it involves what really amounts, so often, to attempted murder of the soul.”

A Question of Values

The fact that blackmail is illegal in essentially every jurisdiction is a more meaningful and profound outcome than it may appear at first brush because it is an instance—perhaps a rare instance—where society has taken the unequivocal stand that psychological well-being is an interest that is valued by law. Even more so than autonomy and free market (i.e. the ability of the blackmailer and victim to negotiate their own agreement outcome), even more so than freedom of information (i.e. society’s interest in the disclosure of truth).

And this may be the simplest and truest response to the paradox of blackmail: that we simply do not want to be the type of society that allows blackmail victims to suffer without recourse; that we do not want to be the type of society that enables a blackmailer’s weaponization of fear and vulnerability. There are many instances where the law prioritizes utility, economics, or efficiency. But here is one place where the law has determined that psychological well-being is worth prioritizing; where the law has, for all it is worth, chosen empathy.