From The Independent:
ONE morning in December 1824, the Duke of Wellington received an unpleasant letter. ‘My Lord Duke,’ it began, ‘in Harriette Wilson’s Memoirs, which I am about to publish, are various anecdotes of Your Grace which it would be most desirable to withhold, at least such is my opinion. I have stopped the Press for the moment, but as the publication will take place next week, little delay can necessarily take place.’
The letter, signed by one Joseph Stockdale, a pornographer and scandal-monger, was a naked attempt at blackmail. The Duke was a field marshal, cabinet minister, national hero, husband and father, while Harriette Wilson was a famous London courtesan past her prime, then living in exile in Paris. Wellington was being asked to pay money to be left out of her memoirs.
His response is famous: ‘Publish and be damned!’
If David Letterman’s lady friend staffer had threatened to sue for sexual harassment, but her lawyer told Letterman’s lawyer that she’d be willing to sign an agreement promising never to say a word about the affair in return for a $2 million settlement, that would be perfectly legal, right? I mean, the law encourages people to threaten to sue their bosses for sexual harassment, right? And the law also encourages the parties to settle out of court, and promises of secrecy in return for money are legally enforceable, right?
What if the blackmailer instead of threatening to write a screenplay about a horndog talkshow host had actually written the screenplay and submitted it to David Letterman as a film to be produced by Letterman’s Worldwide Pants production company, and Worldwide Pants could buy up all rights to it for just $2 million. (It probably wouldn’t be that much worse a screenplay than the Strangers with Candy screenplay that Worldwide Pants did produce a few years ago.) I kind of seems like Mr. Halderman got himself arrested for being in a hurry to get paid, for not being suave about his approach.
Is the difference in the Letterman deal that a nosy third party is involved? Fair enough, but that doesn’t seem to be the principle involved in the Bill Cosby case.
Bill Cosby’s image is all very grandfatherly now, but my recollection is that he seemed to spend most of the 1970s hanging out at the Playboy Mansion. But everybody else seems to have forgotten. In the 1990s, a woman was convicted and sentenced to five years in jail for asking Bill Cosby for money in return for not selling her story to a supermarket tabloid that she was (at least according to her mother) Cosby’s daughter.
When Autumn Jackson got sent off to prison for five years, CNN reported:
The judge in the case ruled that Cosby’s alleged paternity was irrelevant and that the real issue was whether the defendants committed extortion. Cosby testified he had sex once with Jackson’s mother but denied being her father.
A 1997 NYT article explained:
At one point during closing arguments, Mr. Baum told the jury: ”Autumn Jackson had a right to sell her story. Autumn Jackson had a right to ask her father to negotiate a settlement of her rights. ”Two rights don’t make a wrong,” he added.
But prosecutors say that two rights do make a wrong, when they constitute a threat to harm someone’s reputation, accompanied by a demand for money. The disagreement highlights an age-old legal debate about what one lawyer calls the paradox of extortion and blackmail (the terms are often used interchangeably). [Although they shouldn’t be. Extortion is “Give us money or we’ll do something illegal to you.” Blackmail is “Give us money or we’ll do something legal to you.”]
”The reason blackmail has exerted fascination for scholars is that it’s a profoundly mysterious offense,” said Leo Katz, professor at the University of Pennsylvania Law School and author of the book, ”Ill-Gotten Gains: Evasion, Blackmail, Fraud, and Kindred Puzzles of the Law.”
”What makes it mysterious is that you are threatening to do something which you are perfectly entitled to do, and you are asking for a benefit in return for not doing it,” he said.
James Lindgren, a law professor at Northwestern University who has written extensively on blackmail and extortion, said: ”It’s hard to see when you’re doing things that individually are not wrong. It’s not wrong to go to the tabloids, not wrong to make public claims about someone being your father, not wrong to ask for money.
”What’s wrong,” he said, ”is when you use the explicit leverage of public disgrace to get what you want.”
Some economists and lawyers have debated why blackmail and extortion are crimes in the first place. Paul Shechtman, a former top Federal prosecutor in Manhattan who performed an economic analysis of blackmail with Douglas H. Ginsburg, now a Federal Court of Appeals judge, found an economic rationale for keeping it a crime. Legalizing blackmail, he said, would spawn an entire industry that would dredge up secrets to conceal again for a price.
”As a general matter, it’s not in anybody’s economic interest to have people dig up dirt and rebury it,” Mr. Shechtman said.
In any case, the extortion and blackmail riddle has not given prosecutors much pause. ”Prosecutors have been prosecuting, blissfully ignorant of the debate,” Mr. Shechtman said. And they have been winning convictions as well.
Take another example: former Bush speechwriter Matthew Latimer is getting a lot of praise and a lot of denunciations for telling backstage tales from the Bush White House. Is he right or wrong? Well, I think it depends on his contract, written or oral. Let’s say he’s asked to come work as as a speechwriter for X dollars per year, but there’s a stipulation that he never write about it. If he asks for 1.5X in return for accepting that stipulation never to profit off backstage secrets of the Bush Administration is he demanding blackmail (in a prepaid form)?
Or, how about this: Let’s say your dad is, I don’t know, let’s pick a name at random … Barack Obama. A book agent tells you that he could get you a $3 million book deal for the story of your life and, as in Tristam Shandy, your conception, which you have a detailed account about in your late mother’s diary, which you’ve recently inherited.
You’d like the $3 million, but you’d rather not have all the publicity (and you’d rather not have to do the work of writing the book). And you would rather not cause your father, whom you voted for, any political damage (especially if, say, your mom, Natasha Gromyko, was your dad’s KGB controller operating out of the Soviet Mission at the UN in 1983-1985, and you’d just as soon not open that whole can of worms. I mean, like, the Cold War is so over.) So, wouldn’t it be better for both you and your dad if you came to some quiet agreement where in return for, say, $2 million you’d agree to never tell?
How about, instead, if you were thinking about writing a book entitled, My Dad, Barack Obama, and he got wind of it and called you and offered you $2 million not to finish it? That’s legal, right?
How about if you sent him a birthday card mentioning you were thinking about writing you
r autobiography (precocious autobiographical tomes run in the family!) and he called back and offered $2 million if you wouldn’t publish it? That’s legal, isn’t it?
How about if you called him and told him your plans to write a book, and then said, “But, I’m thinking about a number …” And then he said, “Let me guess, two million dollars.” And then you said, “Dad, you can read my mind!” Is that legal?
What if you weren’t thinking about writing a memoir at all, but one day in December 2007, Valerie Jarrett knocks on your door with a satchel of cash and a contract to never write your memoirs. Is that legal?
Kind of seems like the law is “Don’t mess with popular celebrities.”
But wouldn’t that be backward? It would seem like there would be a public policy interest in the public learning more about the personal character of highly influential people like Bill Cosby, David Letterman, or the Duke of Wellington, just as the libel law since 1964 makes it harder for public figures to win a libel suit. It would seem like that’s the answer to Shectman and Ginsburg’s critique: that the legal distinction between public figures and private figures be extended from libel law to blackmail law. The public has an interest in learning more about the those who play major roles in public life, while those public figures also have a private interest in not having facts be learned. Between the two interests, the law should be neutral. Let the marketplace reign.
Or maybe it’s just that the law frowns on people who try to cut out the lawyer middlemen and deal directly with their opposite numbers.
P.S. What if your book, My Dad, Barack Obama, happened to contain the true stories of how both of your dad’s main Democratic and Republican rivals in the 2004 Illinois Senate race happened to have their scandalous divorce papers publicized, forcing them to withdraw?