Walter Block sets out a respectable libertarian critique of laws that criminalize blackmail. Although some may take offense at the behavior of those who earn or supplement their livelihoods in this despicable way, Block endorses the libertarian precept that would restrict the criminal sanction only to cases in which miscreants employ or threaten to employ force, fraud, or theft. Absent some element of this triad, the blackmailer's misdeeds should attract the attention of the law--the civil law, not the criminal law--only when one of the parties complains that the voluntary agreement between the two--the blackmail contract--has been breached. It is the purpose of this paper to focus attention on the nature of that peculiar agreement and to argue that it is, in one critically important way, unworthy of the respect that Block wants us and our judiciary to accord to it. The paradox of blackmail is familiar, emerging from two apparently uncontroversial premises. The first is that what the blackmailer threatens to do, characteristically, is merely to reveal or publicize what is true of, albeit highly damaging to, another. Even though this may be harmful, it is ordinarily not a criminal offense and journalistic muckrakers often prosper from the marketing of such stories. Likening the blackmailer's reputation-shattering disclosures to gossip, Block is at pains to show that force, fraud, and theft need not be involved and I shall not challenge him on that point. Indeed, it should be noted that there are cases in which such disclosure is admirable, as when public-spirited citizens identify wanted felons to the authorities or when whistleblowers alert the public to corporate and official misconduct. Now although it is no criminal offense to pass along such information, neither is it an offense to sit on it. Thus the second premise: that it is not generally a criminal offense to ask to be paid for a promise to forbear from doing what one is at liberty to do or not, as one wishes. If I am free both to do A and to forbear from doing A, I am at liberty to ask for and accept payment in return for a promise not to do A. Commercial transactions commonly have this feature. If, for example, you want to buy my car but will not have the full amount until next week, I may ask for a smaller sum in exchange for my promise not to sell to anyone else for seven days. Such agreements to forbear from action are simply garden-variety commercial transactions that routinely receive our judicial blessing. Now if we put the two of these innocent acts together--I will promise to keep your dark secret quiet if you pay me--we somehow get an agreement without legal validity: indeed one that makes the offeror into a criminal. This is puzzling. Much of the literature on this paradox has sought an ethical/jurisprudential justification for holding that blackmail belongs on the list of criminal offenses. I think it is right to say that there is no generally accepted account of why this should be so.(1) But after considering much of that inconclusive work, Block and his Libertarian comrades have urged that we eliminate the paradox by legalizing blackmail. That approach suggests that we pause and reflect on the place of contracts within the judicial system. Taking the blackmailer's agreement as an exemplar, this is what I propose to do. If Block's arguments were to prevail, then we would expect the offense of blackmail to be struck from the criminal codes. For the would-be blackmailer, decriminalization eliminates the costs and hazards of prosecution. Given the mean price of secrecy set out in his examples -- $5000 -- one would anticipate that blackmail would become an economically attractive career choice. It is a useful analytical approach to look carefully at the blackmailer's business, trying to conceive it as a lucrative opportunity in Block's libertarian utopia. Having made such a career choice, how might one prosper? …
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