Free Speech

Minnesota Supreme Court Strikes Down Blackmail Statute as Overbroad

It's possible that a narrower statute with a "lack of nexus" requirement (see below) might be constitutional, though the majority doesn't discuss that:

|The Volokh Conspiracy |

From today's opinion in State v. Jorgenson, written by Justice David Lillehaug:

On its face, Minnesota Statutes § 609.27, subd. 1(4) (2018), which prohibits any written or oral "threat to expose a secret or deformity, publish a defamatory statement, or otherwise to expose any person to disgrace or ridicule," violates the First Amendment ….

A communication is prohibited if it threatens to expose any secret or deformity, publish any defamatory statement (whether or not tortious),  or otherwise expose any person to disgrace or ridicule. The communication is prohibited even if the secret or deformity is true, the defamatory statement is accurate, or the facts that might lead to disgrace or ridicule are real. {Defamation includes statements "which tend[] to injure 'reputation' in the popular sense; to diminish the esteem, respect, goodwill or confidence in which plaintiff is held, or to excite adverse, derogatory or unpleasant feelings against him" [even if they are true].} …

Counsel for the State conceded that threats such as the following would violate the statute:

  • A law student who had been sexually harassed by a professor states: "Professor, you have a choice; either resign or I will report and publicize the fact that you sexually harassed "
  • A school bus driver says to a student: "It's illegal for underage persons to smoke cigarettes. Give me those smokes or I will tell your parents that you're smoking."
  • A woman, seeing a man she knew was a child pornographer and sexual abuser preparing to move in with her sister and her nieces, promises: "If you don't break up with my sister and leave town, I'll report what I know to my sister and the "

It takes little imagination to come up with a multitude of examples in which a written or oral demand, including a threat to expose a secret or disgraceful fact, or to say something that is defamatory but true, is not only protected speech, but is the kind of speech that has "social value." Such speech occurs in the worlds of government, business, academia, sports, and culture. Such speech may well be at the core of matters of public concern. Or it may occur in another socially valuable setting, family life…. "The right of free expression is as important to many people in their personal and institutional relationships as it is in the narrower 'civil liberties' related to politics[.]" … Plainly, subdivision 1(4) criminalizes a substantial amount of protected speech. Minnesota Statutes § 609.27, subd. 1(4) is thus unconstitutional on its face….

The dissent's theory is that the definition of "threat" is so narrow that it includes only "speech integral to criminal conduct," another of the categorical exceptions to  the First Amendment…. The dissent would define "threat" to mean only "a declaration of an intention to injure another or his property by some unlawful act." … [But t]he adjective "unlawful" appears in subdivision 1 in paragraphs (1)  ("a  threat  to  unlawfully  inflict  bodily  harm…."), (2) ("a threat to unlawfully inflict damage …."), and (3) ("a threat to unlawfully injure …."), but it appears nowhere in paragraph (4)….

At root, the dissent's interpretation is an understandable wish that we read subdivision 1(4) as merely banning extortion, which is speech integral to criminal conduct. But the Minnesota coercion statute is not a pure extortion statute; it criminalizes threats that are not extortionate.

Federal extortion statutes are much narrower than subdivision 1(4). Under the federal Hobbs Act, extortion is "the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right." And it is a crime to mail or transmit in interstate commerce certain threats with the "intent to extort" money or property. Federal courts, including in the two cases cited by the dissent, have interpreted "intent to extort" to require that the threat be "wrongful." … As the Second Circuit explained in United States v. Jackson, the omission of a wrongfulness element alone sweeps in all kinds of lawful speech:

"[P]lainly 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. We doubt that Congress intended [section] 875(d) to criminalize acts such as these."

All of these scenarios would be criminal under the Minnesota coercion statute….

Chief Justice Lorie Skjerven Gildea dissented; part of the dissent had to do with an ostensibly different interpretation of the word "threat" (discussed above), but part, I think, had to do with her view that even the threats pointed to by the majority would be constitutionally punishable:

The majority sets forth three examples—a law student confronting a law professor about sexual harassment, a school bus driver confronting an underage smoker, and an aunt confronting a known sexual abuser in an attempt to save her family from future abuse—and asserts that the speech in each example "benefits society" and should, therefore, be protected and not criminalized. But the statute does not regulate the speech in these hypotheticals; the law student, the bus driver, and the aunt can put their charges up on a billboard and not run afoul of the statute. What they cannot do is threaten someone with an intent to extort something of value.

Now some courts (including the Jackson decision quoted by the majority) have concluded that threats to expose secrets and accuse people of crimes—essentially, blackmail—if a statute is limited to speech "where the threat has no nexus to a plausible claim of right,

We do, however, view as inherently wrongful the type of threat to reputation that has no nexus to a claim of right. 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.

In the former category of threats, the disclosures themselves—not only the threats—have the potential for causing payment of the money demanded; in the latter category, it is only the threat that has that potential, and actual disclosure would frustrate the prospect of payment. Thus, if the club posts a list of members with unpaid dues and its list is accurate, the dues generally will be paid; if the consumer lodges her complaint and is right, she is likely to receive her refund; and both matters are thereby concluded. In contrast, if a threatener having no claim of right discloses the victim's secret, regardless of whether her information is correct she normally gets nothing from the target of her threats. And if the victim makes the demanded payment, thereby avoiding disclosure, there is nothing to prevent the threatener from repeatedly demanding money even after prior demands have been fully met.

Where there is no plausible claim of right and the only leverage to force the payment of money resides in the threat, where actual disclosure would be counterproductive, and where compliance with the threatener's demands provides no assurance against additional demands based on renewed threats of disclosure, we regard a threat to reputation as inherently wrongful. We conclude that where a threat of harm to a person's reputation seeks money or property to which the threatener does not have, and cannot reasonably believe she has, a claim of right, or where the threat has no nexus to a plausible claim of right, the threat is inherently wrongful and its transmission in interstate commerce is prohibited by § 875(d) [the federal extortion statute].

But neither the Minnesota majority nor the dissent reached this question. For more on the First Amendment and blackmail, see this post.

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  1. It ought to be legal to threaten any behavior that it would be legal to carry out — including what-ifs in which self-defense would apply.

    1. That sounds too simple to ever be adopted by any legislature or court. But I like it, at first blush.

    2. jdgalt1: So I take it that you think standard blackmail — “pay me $100,000 or I’ll reveal that you’re having an affair” — should be legal, yes? (Not a ridiculous position, but I just wanted to make sure what your view is.)

      1. I can’t speak for Mr Galt, but I think blackmail should not be illegal, mainly because I can’t think of any way to prove it without disclosing the info. It seems to me like medieval witch detection — if you drown, you were innocent, too bad, so sad.

        The blackmail letter or audio/video recording itself only shows that the blackmailer asked for money, nothing a street corner beggar doesn’t do. If the secret was of an illegal nature, like “I know where the body is”, that could be the crime of not reporting a crime. If it was legal, like “I know who your mistress is”, there is no crime. And paying blackmailers to keep quiet strikes me as just another form of social pressure that happens all the time.

        Blackmail has always seemed to me like a crime made up to protect the rich and powerful.

        1. “Blackmail has always seemed to me like a crime made up to protect the rich and powerful.”

          In the sense that they get threatened into surrendering some of their riches, sure, that’s protecting the rich and powerful.

          1. The threat is merely revealing an inconvenient truth, which may also be an illegal act. Proving blackmail without disclosing the secret also requires special legal procedures, and that is where the rich and powerful protect each other.

            Poor people don’t get blackmailed. Laws against blackmail are a clear case of the law forbidding disclosing embarrassing facts about both the rich and the poor.

            1. “Poor people don’t get blackmailed”

              This will come as news to them.

    3. “It ought to be legal to threaten any behavior that it would be legal to carry out — including what-ifs in which self-defense would apply.”

      Give me money, or I’ll provoke a fistfight with you, to which I’ll bring a Derringer. To make it fit your hypo, assume I have a concealed carry permit.

      1. Do you think provoking a fist fight is legal? Do you think threatening to bring a gun to a fight is legal?

        1. “Do you think provoking a fist fight is legal?”

          Do you think it isn’t?

          ” Do you think threatening to bring a gun to a fight is legal?”

          Why wouldn’t I?

          1. “Provoking a fist fight” can cover a wide range of actions, but it is either assault, or taking advantage of the other’s propensity to criminal violence. Carrying a gun _should be_ legal, but to use it, you need to be able to claim self-defense. Assault is a crime and will certainly nullify a claim to self-defense. Provoking the fight by, for instance, insulting a man known for his lack of self-control and frequent resorts to fists, may not be a crime, but if you followed up the insult by shooting the guy, as a juror I probably would not believe self-defense.

      2. If this is the best example you have of understand Mr Galt’s post, perhaps you need to rethink your cunning plan.

        1. Come back after you’ve mastered English grammar.

  2. In North Carolina, there is a criminal case (92 N.C. App. 563 (1989))where at UNC student was allegedly making 5+ prank phone calls to a person. The victim of the prank calls identified the UNC student, and effectively said “hey student, pay me money or else I’m going to press criminal charges against you.” The phone call victim was then convicted of extortion/blackmail. I’ve always taken this case to mean you can’t “settle” a criminal case (unlike a pre-filing civil demand). There was no First Amendment challenge noted in the opinion.

    1. Criminal charges are brought by “the people” not the victim. So paying off a witness to avoid conviction is indeed a problem, unlike the civil law situation, where making the victim whole is indeed a defense.

  3. ” The communication is prohibited even if the secret or deformity is true, the defamatory statement is accurate”

    Defamatory statements are, by definition, false.

      1. Where you do live? In English common law, they are.

        1. This is simply not the case. There are examples throughout history of people being sued successfully for defamation for revealing bad behavior by officials or private, as truth was not a defense to a claim of defamation. If only false statements could be defamatory, then, by definition, truth would be a defense. Since this is a known, documented practice, you are clearly wrong.

          1. officials or private actors*

          2. ” If only false statements could be defamatory, then, by definition, truth would be a defense.”

            As is, indeed, the case. Truth IS a defense to defamation claims.

        2. Actually, I think it is the opposite. The common law of defamation, which England still follows to some extent, did not make falsity an element of the tort. Instead, truth was an affirmative defense that the defendant had to prove.

          But as a result of both state law reforms and the constitutionalization of defamation law, I believe every US jurisdiction requires at least a statement that is both false and published with at least negligence as to its falsity, as two of the elements of the tort.

          1. Before the mid 1800’s the UK still had common law criminal libel for which truth was not a defense, because the offense was considered to be inciting a breach of the peace whether or not the statement were true.

            1. And the oldest jury nullification case in the American tradition was when a colonial governor had a newspaper publisher prosecuted for truthfully exposing corruption under that governor. The judge told the jury that truth was no defense; the jurors unanimously disagreed.

              And the First Amendment was in part written to make it clear that no such prosecution would be allowed in the USA.

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