Blackmail is surprisingly hard to define

Then-candidate Donald Trump in 2016. (Carlo Allegri/Reuters)

Talk of supposed blackmail is in the news, both as to the Kushner/Brzezinski/Scarborough story and the CNN/HanAssholeSolo story. The stories are complicated enough that I don't want to opine on who might or might not be guilty of what there; and of course the stories raise ethical questions as well as legal ones. But I do want to pass along some little-known legal background on the law of blackmail, which is an unusually (and, to some, surprisingly) thorny area.

1. To begin with, at the heart of blackmail law lies what some call the blackmail paradox: Blackmail—which I'll define here as threatening to reveal an accurate embarrassing fact about a person unless he does what you demand—generally involves (a) threatening to do something that you have every legal right (even a constitutional right) but no legal obligation to do, in order to (b) get someone to do what he has every legal right to do.

It's clear why we criminalize extortion by threat of violence (pay me or I'll burn down your business): It's a threat to do something that you have no right to do. But in the threat, "Pay me $10,000 or I'll reveal that you had an affair," all components are legal: He is free to pay you $10,000. You are free to reveal that he had an affair. You are free not to reveal that he had an affair. Yet combine them together as a conditional threat and it's a crime.

Nor can we resolve this by saying that coercive threats, even threats to do something legal, are generally criminal. "Pay me $10,000 or I'll stop doing business with you" is perfectly legal (assuming that the threat comes from a sole proprietor, rather than someone lining his own pockets at the expense of his employer). "Pay me $10,000, neighbor, or I'll sell my house, which is next to yours, to someone you dislike" is perfectly legal, too. Much legitimate hardball negotiation involves threats aimed at getting someone to do something, including threats of financial ruin. It's just when the threat is to reveal embarrassing information that it becomes blackmail (or, as some statutes label it, coercion or extortion).

Of course, there are lots of possible theoretical and pragmatic responses to this objection; and the law does punish blackmail, though the definition varies from state to state. But the theoretical paradox, and specifically the fact that so much legal and commonplace behavior is very similar to blackmail, causes practical problems.

2. Consider, for instance, this D.C. statute (just as a sample that is representative of many of the broader, more modern statutes):

A person commits the [felony] of blackmail, if, with intent to obtain property of another or to cause another to do or refrain from doing any act, that person threatens:
(1) To accuse any person of a crime;
(2) To expose a secret or publicize an asserted fact, whether true or false, tending to subject any person to hatred, contempt, or ridicule; or
(3) To impair the reputation of any person, including a deceased person.

Note that the statute applies not just to attempts to get money, but to attempts to coerce other action (or inaction). "Stop seeing my daughter or I'll tell the police that you stole money from your boss" is a crime.

But, read literally, this would also make it a crime for me to say, "Pay me back the money you stole from me, or I'll call the police"—something that few, I think, would want criminalized. It would make it a crime to say "Stop seeing my daughter or I'll tell her that you stole money from your boss." And it would even make it a crime to say, "Pay back the money you took from me, or I'll sue you to get it back," when the lawsuit would tend to subject you to "contempt" (because it would accurately expose you as a thief) or otherwise impair your reputation; yet we actually want to promote that sort of behavior, rather than requiring people to sue in every such case without having a chance to settle the matter beforehand.

Indeed, many courts have said that some such threats are themselves protected by the First Amendment, and state appellate courts in Arizona, Colorado, Oregon and Washington have struck down state blackmail statutes because of this:

1. Threatening to keep publicizing and condemning a real estate agent's practices in order to pressure him into changing those practices is constitutionally protected. Organization for a Better Austin, 402 U.S. at 419.
2. Threatening to keep publicizing and condemning shoppers' decisions not to comply with a boycott in order to pressure the shoppers into changing their behavior is constitutionally protected. NAACP v. Claiborne Hardware, 458 U.S. at 909-10; see also Eagle Books, Inc. v. Jones, 474 N.E.2d 444, 450 (Ill. Ct. App. 1985) (threats to publicize the identities of pornography buyers were constitutionally protected).
3. A consumer's "threaten[ing] a vendor that unless he is given a refund for a defective product he will complain to the Better Business Bureau" is constitutionally protected. State v. Pauling, 69 P.3d 331, 335 (Wash. 2003); State v. Weinstein, 898 P.2d 513, 515 (Ariz. Ct. App. 1995). The same is true when the consumer publicizes his dissatisfaction with plaintiff's product and implicitly threatens further such publicity unless he gets a refund. E.g., DeGroen v. Mark Toyota-Volvo, Inc., 811 P.2d 443, 446 (Colo. Ct. App. 1991); J.Q. Office Equipment of Omaha, Inc. v. Sullivan, 432 N.W.2d 211, 214 (Neb. 1988).
4. "A store owner['s telling] a customer to pay a delinquent bill or else he will report the customer to a credit reporting agency" is constitutionally protected. Weinstein, 898 P.2d at 515.
5. So is "a mother['s informing] her former husband that if he does not pay back child support, she will report him to the court where he risks incarceration." Id.
6. So is saying, "If you do not withdraw this research report …, I will disclose that you falsified the experiment." State v. Robertson, 649 P.2d 569, 580 n.13 (Or. 1982).
7. So is a newspaper reporter's "tell[ing] a public official [that] if the public official votes a certain way, the reporter will divulge that the public official will gain from the public body's action." State v. Steiger, 781 P.2d 616, 621 (Ariz. Ct. App. 1989).
8. So is a citizen's "protest[ing] a perceived unlawful arrest by threatening to write a letter to the editor of the local newspaper." Chaffee v. Roger, 311 F. Supp. 2d 962, 967 (D. Nev. 2004).
9. So is a citizen's threatening to continue picketing a store until it stops selling a particular product, such as pornography. Eagle Books, 474 N.E.2d at 450.

Or, as the U.S. Court of Appeals for the 2nd Circuit said in United States v. Jackson, 180 F.3d 55 (2d Cir. 1999) (later reversed but only as to the harmless error analysis)—a case involving a Bill Cosby sex scandal, though not of the sort that we're hearing about now –

Not all threats to engage in speech that will have the effect of damaging another person's reputation, even if a forbearance from speaking is conditioned on the payment of money, are wrongful. For example, the purchaser of an allegedly defective product may threaten to complain to a consumer protection agency or to bring suit in a public forum if the manufacturer does not make good on its warranty. Or she may threaten to enlist the aid of a television "on-the-side-of-the-consumer" program. Or a private club may threaten to post a list of the club members who have not yet paid their dues.

3. To solve this problem, courts have generally added a "lack of nexus" element to blackmail statutes. To quote the 2nd Circuit,

There are significant differences between, on the one hand, threatened disclosures of such matters as consumer complaints and nonpayment of dues, as to which the threatener has a plausible claim of right, and, on the other hand, threatened disclosures of such matters as sexual indiscretions that have no nexus with any plausible claim of right.

Likewise, in the words of the Washington Supreme Court (which read such an element into its statute, in order to avoid striking the statute down on First Amendment grounds),

Although a person might have a legal right to collect a judgment, there is no nexus between the exercise of that right and the threat to post embarrassing nude photos on the Internet. On the other hand, a person with a legal right to collect a judgment would have a nexus to a threat to institute garnishment proceedings….

We … hold that it is unnecessary to strike [down the state extortion statute on First Amendment grounds] because we may impose a limiting construction in the form of a requirement that there be a "lack of nexus" that limits its application to only unprotected speech.

Some statutes expressly provide an exemption for attempts to get property by threat of exposure, when the property "was honestly claimed as restitution or indemnification for harm done in the circumstances to which the … exposure … relates, or as compensation for property or lawful services." Again, that takes care of the "pay me back the money you took, or I'll sue [or call the police]" scenario.

But while a "lack of nexus" requirement does protect some of the threats that should be protected, it leaves a good deal unclear. "Nexus," after all, is a vague term (likely deliberately vague).

And that's especially so when the "claim of right" goes beyond a claim of something that should be coming to you (unpaid club dues, a refund for shoddy goods, the money you are owed under a judgment). Consider, for instance, two examples:

1. A reporter "tell[s] a public official [that] if the public official votes a certain way, the reporter will divulge that the public official will gain from the public body's action."
2. A reporter telling the official that, if he votes a certain way, the reporter will reveal the official's extramarital affair. (Assume that the vote has nothing to do with regulation of adultery.)

Example (a), Steiger says, is constitutionally protected, and that's likely right. Example (b), I think, would be classic coercive blackmail. But there's no distinction in terms of a reporter's having a "claim of right" in one situation but not the other—in neither of them does the reporter have any personal legal right that he's trying to vindicate; in both, the reporter has a First Amendment right to publicize the information in the absence of a threat.

If the law requires an inquiry into whether there's a "nexus," that would focus on whether there is an adequate moral connection between the action being threatened and the action being sought. There appears to be such a connection between a politician's vote and a threatened disclosure that the vote is self-interested—there doesn't seem to be such a connection between a politician's vote on, say, an environmental or budgetary bill and a threatened disclosure that the politician is an adulterer.

But this connection is often quite subjective, as any inquiries into moral relevance are. Consider this example:

1. A reporter telling an official that, if he votes in favor of increased criminal sentences across the board, the reporter will reveal the official's child pornography habit.

Is there a sufficient "nexus" here that the reporter can avoid being guilty of blackmail, on the theory that there is an adequate moral connection between the threat (exposing an official's own willingness to commit crime) and the action that the reporter is trying to stop (the strengthening of criminal punishments more generally)?

Or consider these two examples (reminiscent of the stories in the news, but deliberately stylized, since again I'm trying to discuss blackmail law more broadly rather than figure out what the facts were in these cases and how those facts should be interpreted):

1. A reporter telling a citizen that, if he continues to make certain anonymous statements, the reporter will (or may) reveal the citizen's identity.
2. A politician's assistant telling a reporter that, if the reporter faults the politician for supposedly cheating, the assistant's friends will reveal the reporter's own cheating.

How do we apply the "nexus" analysis here?