Search Results for: blackmail

Bounty Hunter Blackmail

Consider a fine-insured-bounty (FIB) crime law system such as I outlined here. All (but one) crime is punished officially by fines, everyone is fully insured to pay large fines, and bounty hunters detect and prosecute each crime. In a FIB system, we collectively decide the fine and bounty level for each crime, and manage a judicial system which decides individual cases.

If we set the fine level for each crime at our best estimate of the social harm produced by one more crime event of that type (divided by the chance that it will be caught, plus enforcement costs), then the insurer-client pair would internalize that social harm, in which case we could leave that pair free to choose punishment types, costs, and levels, as well as (many aspects of) police and prosecutor monitoring and investigative powers.

We could also let bounty hunters choose (many aspects of) police and prosecutor costs, methods, and priorities. Instead of agonizing over centralized one-size-fits-all crime policy decisions as we do now. We could also break the blue wall of silence to ensure that all laws are actually enforced, even on police, leaving only judge-based discretion on particular cases. Via redistribution, we could help those who face high insurance premiums, but know more precisely who we are helping how much.

The total social harm from each type of crime includes not just the harm caused directly by committing that crime, but also the costs incurred by bounty hunters in pursuit, and by insurers to prevent and estimate risks. Since in a competitive market with free entry the average bounty hunter costs should be close to the bounty level, this suggests that with competitive bounty hunters the fine is larger than the bounty.

This difference between the fine and bounty should also be large compared to the fine. After all, if this difference were small, then bounty costs would cause most of the social harm of this crime. In that case we’d be tempted to decriminalize this activity, to drastically lower its social cost. Unless the rate at which this activity happens varies strongly enough with the fine level, the harm of inducing more of these kind of events via decriminalization would be more than outweighed by less harm per event.

The fine and bounty levels should change if the criminal (or insurer) turns themselves in quickly. In that case, no one gets paid a bounty, there’s a high probability that such crimes will be caught, and both of these imply that the fine level should be lowered.

Having fines larger than bounties can create a dangerous incentive if the part of the system that sets fine and bounty levels also gets to spend a substantial part of the resulting net revenue. However, in modern governments it seems be quite feasible to greatly separate these groups, making this less of a concern.

Another problem created by big fine-bounty differences is private deals between insurers and bounty hunters. If a case regarding a particular claimed crime event goes to court, and the bounty hunter wins, then that hunter wins much less than the insurer loses. These two parties would rather settle out of court via “blackmail” deals where the hunter gets paid and keeps quite about their evidence. Here they could split the fine-bounty difference, so that the insurer loses less and the hunter gains more.

Now there are some big obstacles to such trades, in addition to the usual transaction costs, such as secrets, strategic delays, and finding the other party. The insurer can’t be sure that other hunters won’t acquire the same info, perhaps sold to them by this hunter, perhaps via overhearing this negotiation. The blackmailer might be bluffing about having info, and instead be recording their interaction to create evidence of criminal guilt. And payments must be spread out across time, as the blackmailer can continue to demand payments no matter what’s already been paid. These obstacles mean that in such deals the hunter will on average get much less than the fine amount.

But if we want to support large differences between fine and bounty amounts (e.g., F >3B), we’d have to prohibit such deals, and prohibit most insurer-hunter contact as well to make it hard to arrange such deals. Such prohibitions are easier to enforce on bounty hunters not protected by a blue wall of silence, but perhaps still not easy to enforce.

Keeping insurers and hunters apart has the disadvantage of making it harder for a hunter to help with crime prevention. If a hunter came across a person who seemed to be about to commit a crime, they might selfishly just wait for the crime to be committed, and then jump in to grab its bounty. We’d rather that they instead helped to prevent the crime. Such as by contacting the potential criminal’s insurer, and asking if they’d like to buy some info to help them avoid paying a fine. But if we allow such contact, hunters might contact insurers pretending to help with prevention, while in fact negotiating blackmail deals regarding crimes that have already happened.

When large fine-bounty differences are needed, I suspect that the best answer here is to just give up on having hunters help with prevention, and thus to limit insurer-hunter interactions. (This somewhat reverses my prior stance on blackmail.) Insurers are likely to take a lot of initiative to monitor and advise their clients. As a result insurers may usually be the first to guess that a crime may soon happen.

While most bounty hunters would be professionals, some would be amateurs who came across incriminating info via their usual interactions. Such amateurs would then face the choice to sell their info to professional hunters, or to contact the criminal (or insurer) in order to blackmail them. These these amateurs could more easily evade rules prohibiting hunter-insurer deals. But since they are not part of a competitive industry of hunters, compared to professional hunters their efforts are likely to be much more cost-effective, and far smaller. Thus amateur blackmail is much less likely to create a situation where most of the harm of a crime is due to hunter efforts. As a result, we may not actually mind this kind of hunter-insurer deal, and may not want to prohibit it.

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Checkmate On Blackmail

Often in chess, at least among novices, one player doesn’t know that they’ve been checkmated. When the other player declares “checkmate”, this first player is surprised; that claim contradicts their intuitive impression of the board. So they have to check each of their possible moves, one by one, to see that none allow an escape.

The same thing sometimes happens in analysis of social policy. Many people intuitively want to support policy X, and they usually want to believe that this is due to the good practical consequences of X. But if the policy is simple enough, one may be able iterate through all the possible consequential arguments for X and find that they all fail. Or perhaps more realistically, iterate through hundreds of the most promising actual consequential arguments that have been publicly offered so far, and both find them all wanting, and find that almost all of them are repetitions, suggesting that few new arguments are to be found.

That is, it is sometimes possible with substantial effort to say that policy X has been checkmated, at least in terms of known consequentialist supporting arguments. Yes, many social policy chess boards are big, and so it can take a lot of time and expertise to check all the moves. But sometimes a person has done that checking on policy X, and then frequently encounters others who have not so checked. Many of these others will defend X, basically randomly sampling from the many failed arguments that have been offered so far.

In chess, when someone says “checkmate”, you tend to believe them, even if you have enough doubt that you still check. But in public debates on social policy, few people accept a claim of “checkmate”, as few such debates ever go into enough depth to go through all the possibilities. Typically many people are willing to argue for X, even if they haven’t studied in great detail the many arguments for and against X, and even when they know they are arguing with someone who has studied such detail. Because X just feels right. When such a supporter makes a particular argument, and is then shown how that doesn’t work, they usually just switch to another argument, and then repeat that process until the debate clock runs out. Which feels pretty frustrating to the person who has taken the time to see that X is in fact checkmated.

We need a better social process for together identifying such checkmated policies X. Perhaps a way that a person can claim such a checkmate status, be tested sufficiently thoroughly on that claim, and then win a reward if they are right, and lose a stake if they are wrong. I’d be willing to help to create such a process. Of course we could still keep policies X on our books; we’d just have to admit we don’t have good consequential arguments for them.

As an example, let me offer blackmail. I’ve posted seven times on this blog on the topic, and in one of my posts I review twenty related papers that I’d read. I’ve argued many times with people on the topic, and I consistently hear them repeat the same arguments, which all fail. So I’ll defend the claim that not only don’t we have good strong consequential arguments against blackmail, but that this fact can be clearly demonstrated to smart reasonable people willing to walk through all the previously offered arguments.

To review and clarify, blackmail is a threat that you might gossip about someone on a particular topic, if they don’t do something else you want. The usual context is that you are allowed to gossip or not on this topic, and if you just mention that you know something, they are allowed to offer to compensate you to keep quiet, and you are allowed to accept that offer. You just can’t be the person who makes the first offer. In almost all other cases where you are allowed to do or not do something, at your discretion, you are allowed to make and accept offers that compensate you for one of these choices. And if a deal is legal, it rarely matters who proposes the deal. Blackmail is a puzzling exception to these general rules.

Most ancient societies simply banned salacious gossip against elites, but modern societies have deviated and allowed gossip. People today already have substantial incentives to learn embarrassing secrets about associates, in order to gain social rewards from gossiping about those to others. Most people suffer substantial harm from such gossip; it makes them wary about who they let get close to them, and induces them to conform more to social pressures regarding acceptable behaviors.

For most people, the main effect of allowing blackmail is to mildly increase the incentives to learn embarrassing secrets, and to not behave in ways that result in such secrets. This small effect makes it pretty hard to argue that for gossip incentives the social gains out weigh the losses, but for the slightly stronger blackmail incentives, the losses out weight the gains. However, for elites these incentive increases are far stronger, making elite dislike plausibly the main consequentialist force pushing to keep blackmail illegal.

In a few recent twitter surveys, I found that respondents declared themselves against blackmail at a 3-1 rate, evenly split between consequential and other reasons for this position. However, they said blackmail should be legal in many particular cases I asked about, depending on what exactly you sought in exchange for your keeping someone’s secret. For example, they 12-1 supported getting your own secret kept, 3-2 getting someone to treat you fairly, and 1-1 getting help with child care in a medical crisis.

These survey results are pretty hard to square with consequential justifications, as the consequential harm from blackmail should mainly depend on the secrets being kept, not on the kind of compensation gained by the blackmailer. Which suggests that non-elite opposition to blackmail is mainly because blackmailers look like they have bad motives, not because of social consequences to others. This seems supported by the observation that women who trash each other’s reputations via gossip tend to consciously believe that they are acting helpfully, out of concern for their target.

As examples of weak arguments, Tyler Cowen just offered four. First, he says even if blackmail has good consequences, given current world opinion it would look bad to legalize it. (We should typically not do the right thing if that looks bad?) Second, he says negotiating big important deals can be stressful. (Should most big deals be banned?) Third, it is bad to have social mechanisms (like gossip?) that help enforce common social norms on sex, gender and drugs, as those are mistaken. Fourth, making blackmail illegal somehow makes it easier for your immediate family to blackmail you, and that’s somehow better (both somehows are unexplained).

I’d say the fact that Tyler is pushed to such weak tortured arguments supports my checkmate claim: we don’t have good strong consequential arguments for making gossiper-initiated blackmail offers illegal, relative to making gossip illegal or allowing all offers.

Added 18Feb: Some say a law against negative gossip is unworkable. But note, not only did the Romans manage it, we now have slander/libel laws that do the same thing except we add an extra complexity that the gossip must be false, which makes those laws harder to enforce. We can and do make laws against posting nude pictures of a person who disapproves, or stealing info such as via hidden bugs or hacking into someone’s computer.

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Blackmail Enforces Law

A year ago, I pushed private bounty-based law enforcement:

For each type of crime, we’d set a bounty amount to be paid to anyone who successfully convinced a court that a particular in-custody person had committed that sort of crime. We’d have to decide what investigative powers to grant bounty hunters, what regulations to impose on them, and what plea-bargains to allow. We’d also have to set rules on when to detain suspects, and how to prevent double jeopardy. (Options below.) We might want especially solid anti-trust regulations.

Since I’ve talked about blackmail lately, I should mention that legalizing blackmail would create an especially cheap and flexible system of private law enforcement. If an associate of a criminal discovered evidence of their crime, this associate could via blackmail extract close to the cash equivalent of the punishment to the criminal. While this might modestly lower the level of punishment of a caught criminal, it should greatly increase the probability of punishment, leading to more expected punishment of crime. And relative to public police, blackmailers should have much lower costs to investigate crime and implement punishment.

The main academic complaints (e.g., here, here) against blackmail as private enforcement of law are complaints against the very idea of private enforcement of law. It would be just terrible, they say, if criminals got punished without everyone being officially informed. Law enforcers in general face temptations to obtain evidence illegally, and to treat the rich and poor differently, and they face possible violent retaliation from criminals – and we all just know, they say, that public police better deal with these problems. Some also fear that adding private enforcement onto an optimal public enforcement would create too much deterrence, not realizing that one could compensate by reducing public penalties and enforcement.

One unmentioned possible cost of blackmail is a weakening of the bonds that tie people together. You’ll be less open to people who could blackmail you. This is a cost of all law enforcement – you will, for example, be less open with someone who could testify against you in court. For this reason (supposedly), the law today privileges certain relationships, such as spouses, doctors, clergy, reporters, and researchers, against having to testify in court. Reasoning similarly, one could prohibit blackmail within specific relationships.

But as such privileges make it harder to protect the rest of us from their law breaking, it seems to me that they should have to pay us to gain this privilege, unless it is clear that their relation produces more than enough compensating benefits to us. One way to pay would be by sharing some responsibility for their crimes.

The distortion that I’d worry about most is that blackmail as private law enforcement creates an added incentive to associate with potential criminals and ne’er-do-wells, in order to later blackmail them. The cost of this distortion probably doesn’t outweigh the benefits of much cheaper enforcement, however.

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Blackmail Is Gossip+

Sticks and stones may break my bones, but words will never hurt me. Old saying, that few believe.

A perverse man stirs up dissension, and a gossip separates close friends. (Proverbs 16:28)

They were filled with all manner of unrighteousness, evil, covetousness, malice. They are full of envy, murder, strife, deceit, maliciousness. They are gossips, slanderers, haters of God, insolent, haughty, boastful, … (Romans 1:29,30)

Law, first and foremost, keeps the peace. Sometimes people have big complaints about others, complaints so big that they are tempted to do something big about them. In such cases it can be very nice to have a law step in and declare who is right. If many accept the law’s resolution, peace may be preserved.

Gossip is dangerous. This has long been known, as the bible quotes above indicate. People can be greatly harmed by others talking about them, so sometimes gossip leads to very big complaints. Through most of the history of formal law, dangerous gossip was dealt with simply: law banned saying bad things about others. Of course this rule wasn’t always or even usually enforced – it was expensive to make a legal complaint. And there were various conditions and exceptions. But the basic idea was simple: keep people from hurting each other.

Our modern Western world thinks differently. We idealize conversation, and letting people say what they think. So we no longer have law punish people for saying bad things about each other, especially true things. We instead tell folks to tough it, that true mean words don’t excuse violent retaliation. Sometimes we see people hurt others greatly, out of malice, and we refuse to stop them. We sacrifice such victims on the altar of our respect for conversation.

Of course there are good things to say about gossip. By freely sharing info, we might aggregate it, and all learn the sum of what we all know. For example, we might learn to identify people who are mean or uncooperative, helping us to avoid them, and giving them stronger incentives to cooperate. While such social pressure to please aren’t always good, they seem good on average.

Blackmail is basically a threat of gossip; “if you don’t pay, I’ll gossip.” So almost all the things people don’t like about blackmail are things they don’t like about gossip. Someone could, out of selfish motives, say something that hurts someone else. If you don’t like this scenario, it is mainly something you don’t like about a freedom to gossip.

Yes, in addition to harmful gossip, blackmail can also involve money, and a threat. But money-inspired threats happen anytime parties haggle over a price, and few folks get worked up over that. If people are free to buy or not buy, and to sell or not sell, why not let them make threats about the price they’ll accept? Similarly, if people are free to gossip or not gossip as they prefer, why not let them haggle over the price of their gossip?

Yes, some prices are seen by many as unfair or immoral. Many don’t think the price of water or gas should rise in a crisis, and think the cash price of sex, babies, and organs should always be zero. But the arguments folks give for those cases don’t apply well to gossip — why exactly should the cash price of gossip always be zero?

Now a world that allows blackmail about gossip, i.e., haggling over the price of gossip, isn’t exactly the same as a world with only gossip. Legal blackmail should increase the incentives to discover embarrassing info, and thus the expected penalties from embarrassing actions. But these are mostly just stronger versions of the effects of gossip without blackmail, and they are effects we think we mostly like about gossip.

If we don’t want to discourage certain embarrassing actions, then why allow gossip about them? We could extend our privacy laws, and declare some topics off limits to casual conversation. But for topics where we do want conversation, because it is on average good to discourage people from doing embarrassing things, why not also allow blackmail?

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Blackmail History

The most common way academics study regulation is to seek models under which such regulation could be efficient (or moral), and to seek empirical data on details of current local regulatory practice to distinguish such models. But this standard approach tends to neglect both models where people personally gain by supporting inefficient (or immoral) regulation, and the patterns of such regulations across diverse cultures, times, and topics. Some other day I’ll elaborate on this general point. Today I’ll apply my own advice to blackmail, and consider the history of blackmail law.

Some say that we ban blackmail today in order to encourage more gossip. Others say blackmail law is driven mainly by elites wanting to protect themselves. Relevant to both of these theories is the fact that both blackmail and negative gossip were illegal in ancient Rome. (Details below.) But only regarding elites. Unless you had a special privilege, it was illegal to say something embarrassing about an elite. It wasn’t until the last few centuries that law has allowed gossip that says bad true things about elites, and then to compensate we greatly increased blackmail penalties. So at least regarding the pre-modern era, the elite protection theory gets a boost, while the gossip support theory looks weak. This data also helps one understand how the ancients could affirm such high moral standards – few were allowed to point out elite hypocrisy.

Foragers relied heavily on gossip – “leaders” and “legal guilt and punishment” were determined almost entirely by informal uncontrolled gossip. Farmer elites tried to crush gossip as a social force competing with their edicts, though gossip stayed stronger among elites. In the modern world we have returned more to forager values, and so we more empower and rely on gossip, though usually within limits. We allow juries to decide legal trials, though we limit outside gossip influence on jurors. Via democracy, public opinion now picks top leaders, and mass media is recently getting comfortable saying bad things about leaders’ personal lives. Via a celebrity and media culture, gossip chooses many other elites. And we also allow freer speech, including saying embarrassing things about elites.

Forager values seem less enamored of money, since a money-based relation is often framed as a kind of domination, and for foragers domination is illicit. So while the modern world more embraces decentralized conversation, we seem to often be wary of letting base money and commerce influence conversation, which we idealize. For example, there is today widespread wariness of paid advertising, open campaign finance, and of for profit firms controlling schools and media, and publishing research. While this wariness doesn’t usually lead to prohibitions of money interacting with gossip, it makes people more willing to accept such prohibitions.

Blackmail can be framed as a base thing, money, polluting both our idealized conversation, and our idealized private lives. Distaste for pollution of high things by low, together with strong elite distate for blackmail, which mostly targets them, seems enough to explain why blackmail remains illegal.

Some quotes on blackmail law history: Continue reading "Blackmail History" »

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Charity Blackmail?

Monday Tuesday I’ll be taped again for a segment of the John Stossel Show, to air [added: on some coming yet to be determined] Thursday at 10p. This time I’ll be defending blackmail, a subject I’ve discussed here, here, here. In preparation, I’ve just reviewed twenty academic papers on the subject.

Blackmail starts with a situation where A knows something embarrassing about B.  Assume A obtained this info legally, and has the legal freedom to tell or not tell this info to others, based on many noble or ignoble motivations, including rivalry and revenge. A is guilty of illegal blackmail if he requests compensation from B in exchange for A not telling others. Such a deal is legal, however, if B suggests it. (So A should say, “I happen to know this about you. And on a completely unrelated subject, I sure could use a new car.”) For example, recently someone was sent to prison for trying to blackmail David Letterman on his extramarital affairs.

In those twenty papers, roughly a quarter of the authors think blackmail should be legal. Others offered a wide range of arguments for illegality:

  1. Your right to keep quiet is weaker than your right to speak.
  2. It is stupid to pay a blackmailer; stupidity should be illegal.
  3. A blackmailer’s motives, in wanting money, are immoral.
  4. Saying embarrassing things about someone hurts them.
  5. It is especially wrong to gain money by hurting someone.
  6. The blackmailer uses third parties, without their permission, to extract gains.
  7. Blackmail discourages embarrassing activities, but some things just can’t be changed.
  8. Blackmailers may commit crimes to get the info, as may victims to get money.
  9. Rules forbidding or requiring the telling of certain info might be good, but are less “practical” than blackmail laws.
  10. If blackmail is impossible, people will instead gossip, and gossip will result in more folks knowing, and discourage embarrassing activities more.
  11. Government law can optimally discourage an activity via optimal punishment and rates of detection and error. Blackmail is an out of control private law, and will get these things wrong by detecting and punishing too often.

The issue of blackmailer motives could be addressed by only legalizing “charity blackmail”, where the compensation obtained is donated to a charity. (Credit to Rong Rong for the idea.) As probably few would support allowing only charity blackmail, it seems blackmailer motives aren’t the main issue.

Note that gossip is also an out-of-control private law which can discourage activities too much – why allow gossip but disallow blackmail? Note also that those who most dislike the idea of either blackmail or gossip discouraging their embarrassing activities seem to prefer that blackmail be illegal – they don’t believe that gossip alone discourages such activities more. Nor do I.

Posner ’93 offers an elite bias explanation:

It is extremely easy for a legislator, judge, or other public official to visualize himself or herself as a blackmail victim: any public official is a prime target for blackmail, and public officials are influential in the formation of law.

Smilansky ’95 agreees:

Part of the explanation for the perplexing attitude of common-sense morality on this issue is probably cynical, e.g. that the thought of being blackmailed in the ordinary ways is frightening to the rich and powerful in society, who may be less concerned with e.g. the threats of employers or politicians. Hence, that ordinary blackmail be taken so seriously is just what one would expect.

Boyle ’92 says we don’t like money intruding on “private” realms:

“Blackmail seems like the intrusion of market logic into the realm that should be most “private.” … To commodify is itself to violate the private realm. To commodify a violation of privacy, then, is doubly reprehensible. …. Blackmail is illegal because we have a vision of “privateness” that is constructed in part around the control of information as opposed to, say, wealth, healthcare, or housing. … We make a pre theoretical judgment that an activity is “private,” and only then do we “deduce” that it must be kept from the ruthless, instrumental logic of the market.

I made a similar suggestion last October.

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In Praise Of Blackmail

Society – civilized society at least – is never very ready to believe anything to the detriment of those who are both rich and fascinating. The Picture of Dorian Grey

On Wednesday I puzzled over areas of life where:

People seem to insist quite firmly that they do not want to hear lies, where the consequences of believing lies are substantial, where the costs to reliably determine if a lie happened could be low, and yet where lies are legal.

Today the Post reminded us that the puzzle is much bigger.  Not only don’t we use public law to punish many big lies, we actively prevent private parties from punishing them:

David Letterman … announced that he’d had sex with female “Late Show” staffers and that someone had tried to extort $2 million from him to keep quiet about the relationships. … The man who attempted to extort the money was … arrested Thursday on charges of attempted grand larceny in the first degree. … [He] had threatened to go public with the details if the late-night host did not pay …

Instead, Letterman said that he took the matter to the Manhattan District Attorney’s office and that he was told by authorities to issue the person a phony check. That ruse reportedly led to the arrest … Letterman said on camera. “Would it be embarrassing if it were made public? Perhaps it would.”  He added, however: “I feel like I need to protect these people. I need to certainly protect my family.”  Letterman and longtime girlfriend Regina Lasko married in March.

Yes, good thing the public-spirited Letterman risked himself to save us all from such horrid criminals, those who would seek financial gain by exposing celebrity sex lies.  Good thing we also have whistle blower laws giving large financial rewards to heroic citizens who expose drug companies who tell docs truths about drugs.  So many good things to be thankful for.  Sigh.

I would favor overturning anti-blackmail laws.  If we did this, these would be the main consequences:  Rich celebrities would lose money, do fewer illicit things, lie about them less, and trust their associates less.  They’d be more often exposed for lying about doing illicit things.  People would try a little less hard to become such rich celebrities.  The associates of rich celebrities would be a little richer, and people would try a little harder to become such folks.  Fans would not be able to idolize their celebrities quite as much, and would be less often offered roles as illicit activity partners.   Which of these consequences do we fear so much that we forbid blackmail?

Added 11:30a: These concerns expressed so far all apply to whistleblowers as well: privacy, info could be false, threatened folks could resort to murder, non-rich people may be effected, we don’t trust our rules to be reasonable, no wealth is created by the financial transfer, and most parties have done something that looks illicit.   So why promote whistleblowers but ban blackmail?

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Libel, Slander, Blackmail

Bryan Caplan reminds us of a great old puzzle: why are libel, slander, and blackmail illegal? Bryan and I find it easier to understand two extreme positions than the actual intermediate mixture we have. The extremes:  

Punish Falsehood – Authorities monitor what people say and punish them for saying things authorities believe false. Of course authorities pay attention to transaction costs; it isn't feasible to react to every little falsehood. But if authorities believe something, well they believe it to be true, and so they usually expect people to be harmed by believing the opposite. When a falsehood is important enough, punish it. 

Listener Beware – It is up to listeners to decide what to believe. Speakers who are eager to be believed can, if they choose, subject themselves to penalties if they can be proved wrong. Such "fraud" penalties can even be in contracts. But since listeners can choose to ignore speakers they don't respect, and can use any basis they think appropriate to decide who to believe, it is not clear why we should risk empowering authorities to intervene further. If you hear something you think false, just say so. 

Actual policy is an odd mix of these extremes. People are free to make any strange religious or political claims, but are not free to make medical claims, claims about people, or claims at trials. Nor are folks free to be paid not to tell truths. Surely there are some implicit bias theories behind these rules, but until these theories are made more explicit it remains hard to evaluate how much sense these rules make.

Added:  In the US, alcohol companies may not buy TV ads truthfully saying most studies find people who drink more are healthier, and trial witnesses may not truthfully tell rumors they've heard about the accused.  Most comments so far basically repeat standard arguments for one or two of the extreme positions; the puzzle is how to tell when one or the other is most appropriate. 

More Added:  Bryan and I want to debate; tell us what to debate about.

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Rules of Public Evidence?

The United States is perhaps unique among the developed world in that under law, some hate speech is protected. (more)

The United States has a very complicated system of evidentiary rules; for example, John Wigmore’s celebrated treatise on it filled ten volumes. James Bradley Thayer reported in 1898 that even English lawyers were surprised by the complexity of American evidence law. (more)

The main rules of evidence in Sweden are: (i) the principle of free evidence, meaning that there are basically no provisions on what is permitted as evidence as long as it is relevant to the facts to be proven in the case; and (ii) the principle of free evaluation of evidence, meaning that the court evaluates all evidence at its discretion. (more)

On 2 December 1766 Sweden became the first country in the world to have freedom of the press written into the constitution. (more)

Many in the US are proud that the US has weaker limits on speech than do most other nations, especially regarding political speech. However, most in US are not aware that the US also has some of the strongest “rules of evidence” limits on speech in legal courts. These US rules are new; we didn’t have them centuries ago.

Yet the usual arguments used to argue for free political speech can also argue for free court speech, while the usual arguments supporting rules of evidence can also support similar limits on political speech. And the examples of other nations shows that there isn’t a strong world consensus that court limits make more sense than political speech limits. Sweden shows that one can allow free speech in both contexts, while many other nations show that one can also have strong limits in both contexts.

Here are some common rules of evidence limiting trial speech. These are rough guides; the law is quite complex with simple summaries rarely applying exactly.

  • A big clear separation is required between “news” and “editorials”, that is between supporting evidence (most of a trial) and arguments for conclusions (given in closing statements).
  • All witnesses must swear oaths to tell the truth, and are guilty of a crime if they lie.
  • Anyone may be required to testify, except the accused, spouses, docs, therapists, lawyers.
  • One must apply any burdens of proof separately to each element, not just to overall evidence.

All these kinds of evidence are not allowed:

  1. The opinion of a non-expert, unless it is reached unconsciously,
  2. Unauthenticated tangible evidence,
  3. Indirect circumstantial evidence,
  4. Data on similar prior convictions or behavior by the accused,
  5. Hearsay, i.e., what someone heard someone else say,
  6. Simple “naked” statistical evidence, based on relative counts rather than direct observations,
  7. Extrinsic evidence of the contents of a written contract,
  8. Evidence obtained via illegal acts, and
  9. Confessions obtained in an “unreliable” context.

If we wanted, we could eliminate these court rules, and just let everyone say anything relevant that they want in court, as happens now in Sweden.

Or, we might instead apply many of these rules to public political speech. For example, we could require evidence and argument to appear in separate places, we could ban opinions by non-experts, and ban arguments using hearsay or naked statistical evidence. We might even ban irrelevant distracting tangents.

Such rules would require some discretion to enforce, but not much more than judges already use now to apply such rules in courts. Any disputes about excess or misdirected discretion would be judged by those very same legal judges who now make those judgments in courtrooms. And as with most law, minor offenses, which bring small sanctions, may be mostly ignored by both state police and by private suits.

Even in the US, we already apply many limits to business speech. For example, alcohol firms can’t tell the public that most studies find health benefits from modest consumption, anti-discrimination laws limit the kinds of questions one can ask in a job interview, professional licensing limits who you can pay for advice, and some offers are banned by blackmail and wrongful interference with relations rules.

The business world still roughly functions with these rules, as do political worlds in other nations that have strong limits on political speech. And courts could still roughly function without rules of evidence, as happens now in Sweden. These are clearly choices we could make, not clearly forced on us by survival or even wealth considerations.

So what should we choose, more free speech at trials, less free political speech, or a continuation of our inconsistent approach? Here’s a Twitter poll on that:

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Open Borders

In their new book Open Borders: The Science and Ethics of Immigration, Bryan Caplan and Zach Weinersmith do everything you’d think that good policy pundits should do.

They don’t just track trends or scold rivals, they identify and focus on a feasible positive policy change. They don’t just pick any old change, but focus on one of the biggest possible gains they can identify. And it isn’t a complex fragile proposal that most people couldn’t understand, or that would go badly if not implemented exactly as recommended; their proposal is simple and robust. They don’t pick a topic that has little emotional-resonance, regarding which few would act even if they were persuaded; their topic is quite emotionally-engaging. They don’t pick a change so abstract (like futarchy) that few can concretely imagine it; one can create concrete vivid images of what would happen if their proposal were implemented.

They don’t use complex technical prose, they write in simple clear language, and even add engaging pictures; their book is actually a well-done “graphic novel”. They don’t just present one side of an argument, but instead respond to many major counter arguments. They don’t just use one favored framework of analysis, they consider the issue from many possible frameworks. They don’t just focus on their favorite policy choice, they consider many possible ways to compromise with others. They aren’t overly confident in their claims. And while they consider many possible details and complexities, their main argument, regarding the main effect of their proposal, is simplicity itself.

Most important, their arguments seem solid and correct. Adopting their proposal could in fact plausibly double world product, over and above the growth rate that we might achieve without it. The main obvious effect seems so huge as to overwhelm other considerations. Relative to that huge gain, other costs and risks seem minor and acceptable. Of course, the real world is more complex than are our models of it, and so we can never be very confident that changes which go well in our models will actually go well in the real world. And all the more so when our models are noisy and partial, as in social science. Even so, this is another case I’d call “checkmate”, at least in argument terms.

So, damn it, Caplan and Weinersmith do everything you might think pundits should do. I remain personally persuaded (as I have long been); I’d pull the trigger on doing large broad tests of their plan, and if necessary making big compromises to get a deal that can make these tests happen.

I very much hope that everyone loves this book, and that it is the trigger we needed to start a larger debate that leads eventually to big trials. But alas, I’d bet against this happening, if I had to bet. The large political world isn’t that responsive, at least in the short to medium term, to the world of elite policy debates, and in the elite world people mainly care about signs of status and prestige. Elites loved Hawking’s Brief History of Time, Dubner & Levitt’s Freakonomics, Piketty’s Capital in the Twenty-First Century, and Bostrom’s Superintelligence not because those offered clear solid arguments that readers understood, but because they came with signs of high status. Many elites talked about them, their style projected prestige, their authors had high status affiliations, and the positions they took were in fashion, at least in elite circles.

I deeply admire my colleague Bryan Caplan, and am proud that he has again gone for the big solid simple intellectual win, as he did before regarding politics, parenting, and school. I hope he can do it another dozen times. I’ll read each one, and usually be persuaded. There’s a small chance he’ll have big effects, and his taking that chance seems a clear win on cost-benefit terms. But I must also be honest; that chance is still low.

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