In his thought-provoking paper “In Defense of Legalizing Blackmail”, presented yesterday at the Wisconsin Philosophical Association’s annual meeting, Tait Szabo of the University of Wisconsin-Washington County writes:
Generally, we ought to be legally permitted to keep secrets. Generally, we ought to be legally permitted to give our money to whomever we please. Generally we ought to be legally permitted to do both of these things at our own discretion. We are not, however, legally permitted to keep secrets on the condition of receiving money. On the face of it, this seems to require justification.
Szabo argues that there is no good justification for the illegality of at least certain cases of blackmail. The sort of case he has in mind is as follows. Suppose that I take a scenic photo in the park and then later notice that it included an image of someone I know kissing someone other than his wife. I am legally allowed to give the photo to his wife, and he is legally allowed to offer me money not to do so. But blackmail laws make it illegal for me initiate such a deal. This seems odd, Szabo thinks, particularly since there are many other cases in which it is not illegal to demand something in return for not doing something legal. For instance, in labor disputes workers can demand more pay in return for their not striking; consumers can demand that a corporation change some policy in return for their not boycotting it, and so on. Furthermore, there might be good social consequences for legally allowing (at least non-repeatable) blackmail: perhaps it would result in better behavior.
I’m not convinced, but it’s surprisingly hard to say just what is wrong with Szabo’s argument. Certainly his consequentialist assumption that legalizing blackmail might well result in better behavior seems doubtful to me, but that doesn’t get to the heart of my reservation. Rather, what seems morally objectionable about blackmail is the blackmailer’s exploitation of the “blackmailee’s” vulnerability – the opportunistic exploitation of a power asymmetry. In the case of labor negotiations, this seems less of an issue because the rationale for collective bargaining is that in most respects it is the employer that has the power advantage over the employees; labor unions use the threat of a strike to help balance their normal relative weakness. Similarly, boycott threats seem to only balance the normal power advantage that large corporations have over isolated consumers.
So Szabo’s argument may make sense only against the background of a social and economic system in which exploitation of power asymmetries is normal. Perhaps rather than causing us to question the illegality of blackmail, his argument should cause us to question the normality of such exploitation, and perhaps of the power asymmetries themselves.
Okay, so this one’s a head-scratcher (which is obviously why it was a philosophy convention topic). If one condition of exploitation is LEGAL — like collective bargaining — but a similar condition is not, why not? As you note, there are power asymmetries to consider.
So then I start to compare two more closely related conditions — i.e., paying hush money to keep some one quiet about an affair vs. paying money to keep some one quiet about a career-threatening medical condition — then it gets interesting.
In the closer conditions, would paying hush $$ (because I feared exploitation) be an okay-this-should-be-a-legal thing to do? I mean, if it were me in that position (i.e., feeling compelled to pay), I’d say, “I have no choice. I’m protecting myself.” And there’s the rub, because the real question isn’t that. It’s why would I feel as if I have to pay some one off in the first place?
In a world once filled with five minute, sociopathic millionaires (they’ve all gone broke recently), the rule of law is about the only compass around for them, since they often lack the internal compass. So if it isn’t spelled out in the law — i.e., there might be punishment for performing a selfish, reprehensible act of exploitation for self gain — then they might perform the action. [Heck, it's great for them.. Why not? It's the American way...]
So that leaves me with your conclusion. There’s that old hackneyed axiom, “Two wrongs don’t make a right”. And in this case, I don’t see legalizing blackmail as a valid argument. Rather, I think we might want to look at making certain conditions of exploitation ILLEGAL, not LEGAL. (Of course, that opens a whole other issue of law enforcement, but that’s for another blog entry…)
And yet, then again (disclaimer, disclaimer, disclaimer), I didn’t hear the speech and I’m just reading your blog’s take on the arguments presented…