Blackmail and "Economic" Analysis: Reply to Ginsburg and Shechtman

Abstract

Blackmail consists of two things, each indisputably legal on their own; yet, when combined in a single act, the result is considered a crime. First, one may gossip, and, provided that what is said is true, there is nothing illegal about it. Truth is an absolute defense. Second, if one may speak the truth, one may also threaten to speak the truth. Yet if someone requests money in exchange for silence -- money in exchange for giving up the right of free speech -- it is a crime.

The law and economics literature takes the position that blackmail should be illegal on efficiency grounds. The present authors reject this law and economics analysis. They maintain that since it is legal to gossip, it should therefore not be against the law to threaten to gossip, unless paid off not to do so. In a word, blackmail is a victimless crime, and must be legalized, if justice is to be attained. The authors criticize several authors who take the efficiency position, but focus their argument on a paper written by Douglas Ginsburg and Paul Shechtman.

JEL Classification: D63, K14