I was a guest on the Bill Handel Show yesterday discussing the libertarian perspective on blackmail, with reference to the Tiger Woods and other cases. (See my post Blackmail should be legal: the case of David Letterman.) We also touched on common law versus legislation [see my Legislation and the Discovery of Law in a Free Society], intellectual property, reputation rights and defamation law, prostitution, and extortion. Handel, though apparently not a libertarian, was a very smart and fair host. The file is here [13:33, 10.4MB, .m4a file]. It it will be up later on the Bill Handel Show podcast.Someone put up YouTube versions:
Source link: http://blog.mises.org/11245/kinsella-on-bill-handel-show-discussing-blackmail-tiger-woods-david-letterman/
Kinsella on Bill Handel Show Discussing Blackmail, Tiger Woods, David Letterman
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Blackmail should be legal? Nonsense, this was utterly debunked in the comments section before.
Two simple examples.
A) Witness to a crime should not be able to take payment from a criminal to keep quite about it. By approaching the criminal with a blackmail offer his is showing a guilty mind, mens rea, that he is willing to participate in the cover up of a crime.
B) Parents adopt a child whose biological parents were criminal, or rejected the child. Parent wishes to keep this secret till child is mature enough to handle emotionally (or forever.) Also adoptive parent may be protecting the child from retribution by someone the biological parent hurt.
Blackmailer learns this private information and threatens to damage adoptive child’s life unless paid money. In other words the blackmailer has coerced money out of the parent in return for the treat of damaging the child. Money the blackmailer had no part in earning.
By approaching the parent the blackmailer shows an guilty mind, mens rea, to harm the child since he is willing to take resources away the parent which is supporting the child, or to divulge information that would harm the child. This is harm that is fully the responsibility of the blackmailer because he is causing it in both cases.
Macker: The question is: is it a violation of someone’s rights to threaten to reveal true, secret information about them unless some price is paid for silence? Your counterexamples do not establish this.At most they show narrow cases where blackmail is a rights violation–but not because it is blackmail, but because of the special aspects of the situation.
Well, even if you are right, this is because in this case there is a duty to testify as to a crime committed. It would not establish that blackmail per se is a crime. Only that you have a duty to testify if you witness a crime and to fail to do this is itself a crime.
But is it? Why do I owe a duty to testify, to report what I saw? If I’m the victim, don’t I have the right to forgive the crime? (what else is settlement of my claims for some kind of restitutionary payment but a forgiveness of the crime?) And if I’m some third party, to whom do I owe the duty-to-testify? The victim? Why? I have no contract with him.
I agree, I have an obligation not to falsely accuse someone of a crime, since this could play a causal role in others harming the accused. (See my Causation paper for more on this.) In this case you are playing a causal role in aggression. But in blackmail, where you are telling the truth about someone, you are at most playing a causal role in third parties doing what is within their rights. It is similar to the reason why defamation should not be a tort or crime: your reputation is what others think of you and they have a perfect right to change their opinion of you even if they do so based on lies told by others. IT’s up to them to choose what to think and why to think it.
“Damaging” is vague. Libertarianism only “counts” “damage” or “harm” as something that is a rights violation, if it is aggression. So you need to show why the spilling of the secret violates the rights of the child. You can’t just point to “harm” or “damage”–after all if I build a dry cleaner across from yours I make take business away from and “harm” you but this is not a problem (this is one reason I critiqued one libertarian book that focused on “harm” (Patrick Burke’s “No Harm”–see my review); and why J.C. Lester’s is also problematic in talking of “imposing costs” (see Gordon’s review).
This is floppy, imprecise, vague talk. The question is: are you committing aggression, or at least acting so as to play a causal role in the commission of aggression? If not, no libertarian crime.
A:
> Witness to a crime should not be able to take
> payment from a criminal to keep quite about it.
If it is legal to keep quiet about it, it should also be legal to keep quiet for money. If it is illegal to keep quiet about it, it should also be illegal to keep quiet for money. No logical problem here. I am sorry but your argument doesn’t make sense to me.
B:
There are multiple problems with this construct. I’ll skip over the non-core issues (e.g. assuming that age and ability to handle potentially disturbing news are correlated). The essential problem is that there is no “right to be lied to” and no right to your emotional state. Furthermore, since the parents (whether adoptive or biological) do not “own” their children, they shouldn’t have a direct legal recourse anyway, only as representatives of the child.
Brian Macker wrote:
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Blackmail should be legal? Nonsense, this was utterly debunked in the comments section before.
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I’d just like to say that it certainly was not debunked in the last discussion on the subject. Despite many different angles of explanation from many different posters, Mr Macker here refused to accept that if X is not illegal, then threatening to commit X cannot possibly be illegal.
He pointed to some vague ideas relating to obtruction of justice as his “proof” of the validity of blackmail laws. Close inspection of his “proof” revealed flawed assumptions but it seems nobody was able to convince him of this.
I wish the best of luck to anyone who wishes to engage him in this debate.
Mr Macker confuses moral, economic and legal aspects of the question here. His arguments assume that the “offense” or “information” for which the “blackmail” (an emotionally pejorative word) is proffered is a matter that morally “should” or “should not” be disclosed. This is a moral argument with a faulty implied premise. We may disagree as to whether it is morally right or wrong to disclose the information. The adoption question is a good case in point. There is substantial moral argument that adoption information should be disclosed to adoptees. There may very well be a difference between the adoptive parent’s interests, the birth parent’s interest, and the adoptee’s interest. Suppose I have information about an adoptee that the adoptee wants but the adoptive parents want to conceal. Should I allow the adoptee to pay me for the information? Should I allow the adoptive parents to pay me to keep it concealed? Should I ‘sell’ to the highest bidder?
Divorced from the moral question of “should” the adoptee have the information, the is no reason to not sell to the highest bidder. It becomes a simple economic transaction. I have a product, “information” and I am allowing you to purchase the right to determine what I do with it. If I drive a taxi, you can pay me to drive if you wish, or you can pay me to not drive if doing so furthers your interest. How is the question economically or legally different? Where does government have the ‘right’ to decide or regulate this question?
Stephen -
I was discussing this idea of slander/libel with my dad last night and he was saying that it should be illegal because if someone says something false about me that costs me to lose my job then I would have lost wages and potentially lost my career if the lie was bad enough. What is a counter for this argument? What incentive does this person have to refrain from doing evil to me without legal recourse? Or what means do I have to correct this rumor once its started without legal intervention? I understand that the libertarian believes that laws should only protect the rights of the person and of their property, but what comfort can someone take in this situation?
Justin, if someone fires you that is their right to fire you. On whatever grounds they want to consider–even if it’s lies of another person.
But in a society where there are no libel laws, people would know that things other people say might be lies. So reputation would become even more important-the reputation of the person saying things about you.
Stephan – Good point. I guess what makes sharing these ideas difficult for me is that if I can get people to see how laws prohibiting blackmail/slander/libel are ill-conceived, I have a hard time communicating the benefits of abolishing said laws. Can you point me in the direction of resources that explain this?
It’s obvious that the blackmailer has already judged that the action he is threatening is going to cause harm. That’s how he sets his price, and decides whom to blackmail.
He is not “selling information to the highest bidder” since the person he is blackmailing already has the information.
Libertarians generally believe in negative rights, or rights to be left alone.
Laws against blackmail assert no positive rights, and are in fact in they protect negative rights.
The blackmailer in the example of the adoptive parent is injecting himself into someone elses business in a way that is calculated to harm the victim. The blackmailer threatens to be the proximate cause of a harmful act, that would not occur without his action. He does so in order to extract money from the victim with no actual benefit transferred to the victim.
The reason why rights like property rights can arise is because there is a mutual benefit to be gained by two rational actors agreeing to such rights from the increased productivity.
Blackmail provides no such increased productivity, and in fact, is guaranteed to reduce net subjective benefit in society. This is the exact reverse of voluntary exchange.
This is NOT true where someone merely divulges a secret. It may be that revealing the secret had the effect of increasing net subjective benefit, but we cannot tell. With blackmail we can tell because both actors involved have agreed upon some net harm.
The blackmailer is threatening harm in the same way as any guy who says, “Pay up or you might suffer an accident”. Just because the threated harm is intangible makes it no less real.
If someone fires you that is their right to fire you. On whatever grounds they want to consider–even if it’s lies of another person.
That was not the point his father was making. It’s not the employer who is guilty here. In fact he is a second victim because he may lose a good employee.
It may even be that he doesn’t believe the slander but cannot risk the lose in business if others do believe it. Customers may say, “Sorry I can’t do business with a company who employees rapists as delivery men”.
I would say that the person who is defaming is commiting fraud that interferes with the right to free association. So he in interfering with the rights of both parties, the employer and employee.
It’s the same as someone who yells fire in a theater. His fraud, claiming a fire where there is none, interferes with the transaction between customer and owner. So even if you yell fire in a non-crowded theater in full knowledge that no one will get trampled in the panic, you are still have committed a crime.
“But in a society where there are no libel laws, people would know that things other people say might be lies.”
Oh, come on, we already know that in a society with libel laws that what others say might be lies.
“So reputation would become even more important-the reputation of the person saying things about you.”
Look there are transaction costs involved in discoverying whether claims are false or not. That is why it is usually the person who has been defamed is the one who wishes to pursue the defamer for his crime. The other party that is harmed, often has no easy way to know if the claim is true or false. It is often not worth the effort for him to find out since transacting with the defamed person is but one of many transactions for him. Easier to just avoid the cheaper deal on the off chance the guy defamed really is a crook. He only loses on one transaction and he’s not even sure he has lost.
The other victim, the one defamed, has direct knowledge that the claim is false, and is effected in every single one of his transactions. His right to free association and free trade is effected to a much higher degree.
So be careful. There are a lot of libertarians out there who try to oversimplify. Often good law is justified on the wrong grounds. Yelling fire is outlawed on the grounds of endangerment, which is fine, but does not go far enough. Defamation is outlawed on the idea of personal ownership of reputation, which is nonsense and also causes the law to be too small in scope.
The employer should be able to sue the defamer also, if he so chooses since it interferes in his right to employ the victim.
Brian, the issue isn’t whether harm will come to the blackmailed if the secret is made public, or in most general terms, if the blackmailed would rather it remain a secret. The issue is whether the blackmailed is justified in using force against the blackmailer. There are many things that people do to harm each other that are legal and should not be made illegal. To do so would stifle important social mechanisms that people use to settle issues outside the legal system.
Excellent discussion on the Bill Handel show. You expressed the underlying Libertarian principles very clearly and made a very convincing case.
By the same token slavery can’t be condemned per se. Being forced to work against your will for someone else and having them decide your rights is okay if you created some sort of debt that you have to repay. Kidnapping someone for no reason to be your slave is the actual crime. Hence there are times where people can morally own slaves. Had the African slave traders only sold condemned murderers to America then white plantation owners would have nothing to feel guilty about.
Gil –
“Being forced to work against your will for someone else and having them decide your rights is okay if you created some sort of debt that you have to repay.”- Gil
I don’t believe that owing a debt to someone allows them to decide your rights. A contract is made between the borrower and the lender that determines the repayment stipulations. If the contract specifies that the loan must be repaid in labor then that’s one thing, but if the person simply cannot pay then it is should be up to the courts as to how to enforce the terms of the contract.
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