Friday, February 03, 2006

Blackmailing votes

The Volokh Conspiracy goes into some detail on the nuances of blackmailing law. Trying to understand those nuances made my head hurt but there is a point that can be made from it (I think).
3. But if I ask you for money or a service in exchange for my not revealing embarrassing information about you (and recall that I have no preexisting legal obligation to keep quiet), then that's a crime.

That makes sense to me. But it goes on from here.
Say that during the Clinton-Lewinsky scandal, a publisher tells a Congressman "If you vote to impeach Clinton, I will publish information about your own sexual indiscretion." That may well be blackmail (many blackmail laws cover attempts to get people to do things as well as just attempts to get money).

Anywhere that this is not a law it should be, especially with regard to public votes. I am more offended by people doing this to politicians than asking for money and it does greater potential damage to the public good. I was unaware that this was not illegal everywhere.

Here is where the conundrum comes in.
But if the publisher starts a series of articles exposing the sexual indiscretions of Congressmen who have stated their intention to vote for impeachment, that's perfectly legal journalism even though the implication is clearly "If you vote against impeachment, we won't run this article about you." Likewise if the publisher asks the public for information that might prove to be fodder for such articles. (During the scandal, Larry Flynt's behavior was fairly similar to that in this hypothetical.)

This makes sense on it's face but it is where my head started hurting. If memory serves correctly, Larry Flynt actually said he was going after fodder on Republicans who had either had or might vote to impeach or vote guilty. If the threat is not explicitly stated and cannot be proven then freedom of the press would be the rule of the day. Once it is obvious on its face that a paper/magazine/web site is making an explicit threat to get a particular vote it would seem no different than the "blackmail in most/many places" case to me. Apparently not according to Mr. Volokh, who is a lawyer (and I am not).

Ouch, ouch, I quit. Go read the whole thing if this sort of thing interests you. He goes through a number of other examples.


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