The Solution to the Real Blackmail Paradox: The Common Link Between Blackmail and Other Criminal Threats

Connecticut Law Review 39:1051-1096 (2007)
Download Edit this record How to cite View on PhilPapers
Abstract
Disclosure of true but reputation-damaging information is generally legal. But threats to disclose true but reputation-damaging information unless payment is made are generally criminal. Many scholars think that this situation is paradoxical because it seems to involve illegality mysteriously arising out of legality, a criminal act mysteriously arising out of an independently legal threat to disclose conjoined with an independently legal demand for money. -/- But this formulation is not quite right. The real paradox raised by the different legal statuses of blackmail threats to disclose and disclosure itself involves a contradiction between our strong intuition that blackmail threats should be criminal and some equally strong arguments, all of which depend on the fact that disclosure is legal, that blackmail threats should be legal. So an adequate solution to the real Blackmail Paradox requires us either to drop the intuition or to refute the pro-legalization arguments. -/- This Article will adopt the latter approach. It will explain why the six main arguments for legalizing blackmail threats all fail. In the course of refuting one of these arguments, it will also offer a novel positive justification for criminalizing blackmail threats: they should be criminal for the same reason that menacing, harassment, and stalking are criminal--namely, because they involve the reasonable likelihood, and usually the intent, of putting the victim into a state of especially great fear and anxiety. -/- Of course, one might object that disclosure itself is likely to have the same effect, if not malicious purpose. Yet, again, it is still legal. But this point shows only that we as a society value freedom of speech more than we value freedom from infliction of emotional injury. It does not show that we do not value freedom from infliction of emotional injury sufficiently to protect it when competing moral or institutional interests such as freedom of speech are not at stake.
PhilPapers/Archive ID
LEVTST-5
Revision history
Archival date: 2015-09-18
View upload history
References found in this work BETA

No references found.

Add more references

Citations of this work BETA

Add more citations

Added to PP index
2015-09-18

Total views
405 ( #8,001 of 43,016 )

Recent downloads (6 months)
38 ( #17,918 of 43,016 )

How can I increase my downloads?

Downloads since first upload
This graph includes both downloads from PhilArchive and clicks to external links.