Judge Posner on Persuading Judges
Reporters Are People, Too

Blackmail, Extortion, and the First Amendment

Why is blackmail a crime?  More importantly, how can blackmail be criminalize in light of the First Amendment?

Here is how the federal blackmail statute reads: 

Whoever, under a threat of informing, or as a consideration for not informing, against any violation of any law of the United States, demands or receives any money or other valuable thing, shall be fined under this title or imprisoned not more than one year, or both.

18 U.S.C. Sec. 873.  In other words, I can't say, "Gimme 50 grand or I'll tell the cops you're a tax cheat."  Well, why can't I?

I have a constitutional right to speak the truth.  I have a constitutional right to report your crimes.  By "blackmailing" you, I am simply refusing to exercise that constitutional right in exchange for money.  I suppose the argument would be that although I have a right to speak, nothing prevents the government from preventing me from selling my right to speak (or, in this case, not speak).  That's not satisfying to me.

But what I think is even more worrisome is the law against extortion.  The federal extortion statute provides:

 Whoever, with intent to extort from any person any money or other thing of value, knowingly so deposits or causes to be delivered, as aforesaid, any communication, with or without a name or designating mark subscribed thereto, addressed to any other person and containing any threat to injure the property or reputation of the addressee or of another, or the reputation of a deceased person, or any threat to accuse the addressee or any other person of a crime, shall be fined under this title or imprisoned not more than two years, or both.

18 U.S.C. Sec. 876(d).  In other words, I can't mail you a letter saying, "Pay up or I'm going to tell everyone this stuff that will harm your reputation."

The federal extortion statute is an unconstitutional viewpoint based on restriction on speech.  Hear me out.

I could legally mail you a letter saying, "Pay me money or else I won't say good things about you that will help your reputation."  That's what advertising is, right?

So the content of the speech - stuff about you - is constitutional.  It's the viewpoint that is regulated.  That is, if I promise to take a negative viewpoint of you, my conduct is illegal.  If I promise to take a positive viewpoint on you, my conduct is legal.

What am I missing?

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