David Henderson argues that blackmail should be legal. I’m not so sure.
One pair that I would like to hear from on this are Georgetown University philosophers Jason Brennan and Peter Jaworski. They wrote a book titled Markets Without Limits. The description of their book on Amazon states their thesis: “the question of what rightfully may be bought and sold has a simple answer: if you may do it for free, you may do it for money.” Although I haven’t read the book, a friend who has read the book carefully tells me that this thesis is an accurate summary of their message.
I’m often sympathetic to that argument, as in the case of donating a kidney for transplant. But I’m not sure it’s always true. It is legal to say to a politician, “I’ll vote for you if you change the zoning rules for a piece of property I own.” But if you say, “I’ll give you a million dollars if you change the zoning for a piece of property I own”, that’s bribery, isn’t it? As a society, we’ve decided to ban the industry of “corrupting politicians.” Is blackmail an industry worth banning?
Consider that privacy and good reputations are widely viewed as being desirable. Most of us would like a bit of privacy and also a good reputation with the general public. That’s why libel and slander are illegal. Legalizing blackmail is effectively creating an industry that devotes resources to destroying privacy and destroying reputations. What other industries are devoted to harming people?
On the other hand, legalizing blackmail also may discourage people from doing certain anti-social activities, especially if the blackmailer’s claims are true (which distinguishes it from the libel and slander examples.). If most blackmail attempts were of the form, “pay me $100,000 or I’ll tell the police that you robbed a bank”, I’d be inclined to support the legalization of the act—as a sort of private law enforcement.
In practice, I suspect that most blackmail involves issues of sex, gender and drugs. (Soon we’ll have to add race to this list.) I don’t expect to convince others of my views here, but let me just say that I believe that our society is unable to think rationally in these areas. Thus I don’t see any great value in legalizing blackmail. On the other hand, if I had conventional American views on these topics then my attitude toward blackmail might be different.
In the comment section to David’s post, someone mentions the example of blackmail involving the “outing” of someone who is gay. He suggests that this is far worse than exposing an extra-marital affair. I agree that it’s very bad, and this is one reason I am uncomfortable with legalizing blackmail, but I also believe that any form of blackmail involving non-coercive private sexual/drug activities is equally bad. I don’t want to legalize an industry that will draw in thousands of people who then devote enormous resources toward digging up dirt that destroys reputations because our sad, sick, gossip-obsessed society views those activities as naughty.
Furthermore, people are often embarrassed by things that most people don’t view as immoral, such as accidentally being seen naked. If two lovers break-up, a formerly private photo can be used for blackmail, even though the existence of the photo does not show immorality. Thus while I mostly agree with Tyler Cowen’s critique of blackmail, I think even he concedes too much here:
So what are some lessons from the apparent greater prevalence of blackmail risk?
First: Be good! Minimize the chance that someone can blackmail you.
Because he said “minimize” and not “eliminate”, he’s right. But I worry that people are too willing to “blame the victim” in blackmail cases.
PS. In the comment section, David adds the following:
Peter Jaworski informs me that I misunderstood the meaning of the word “may.” He and Jason Brennan use to refer to what’s ethically permissible, not what should be legal.
My major concern is over what should be legal.