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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:
[In Ancient Rome,] the first question in assessing the legality of any statement or threat was to ask whether or not the plaintiff would naturally be harmed by it. The second question was whether the defendant could show a privilege to speak as he had done. In the context of letters of reference, for instance, one had a privilege to speak about the servant’s shortcomings. … The privilege to describe a servant’s abilities did not extend to false, malicious, or irrelevant statements about him. … The words spoken or written had to be sufficiently certain to cause harm. … The plaintiff had also be to sufficiently free from the taint of scandal before the revelation (or its threat). … The victim had to be sufficiently elevated in social rank so that he would suffer actual harm from the revelation. The very poor were impossible to blackmail. … If the revelation of the plaintiff’s crime, loathsome disease, or illegitimacy had been made for a malicious purpose, the defendant’s privilege … would be lost. …
[Under] medieval church [law] …. it could not be wrong in principle to punish those who revealed the secret faults of others, except in a narrow range of cases where utility to the commonweal clearly outweighed the harm caused. … It was also regarded as a requirement of the Gospel that if anyone sinned in secret, he should be reproved in secret. Threatening to reveal private faults—or doing so in fact—was subversive of that requirement. … Sentences ‘‘imposing silence’’ on offenders appear in the records of the ecclesiastical courts, and not only in the situation where threats had been made. …
In English practice, [blackmail] utterances were routinely handled as criminal matters. … The ordinary remedy … seems to have been something like a common-law equivalent of the canonical orders to keep silence: requiring the offender to enter a bond to keep the peace. The higher courts at Westminster, by contrast, seem to have become involved only in enforcing the statutes Scandalum magnatum, in which great men of the realm sought redress against their detractors. … For Coke [who died in 1634] it was ‘‘not material’’ whether the words were true or false. The potential danger to public order and harm to the individual defamed by the revelation of shameful conduct were what counted. (more)
When in 1757 the sending of a letter threatening to accuse of the more serious crimes “with a view or intent to extort or gain” was made an offence it was only a misdemeanour punishable with seven years’ transportation, not a severe sentence according to the standards of the time. It is now [in 1941] a felony punishable with the severest sentence known to the law, short of death. (more)
According to the Victorian compromise: “Vice at least was tolerable, although only in small amounts and only if discreet and under a good deal of control.” … In a chapter [of Guarding Life’s Dark Secrets (2007)] on blackmail, Friedman observes that the blackmail laws fit with the Victorian compromise — they were designed to help elites protect their public reputations, to help prevent them from being threatened and extorted by the often poorer individuals who were blackmailing them (their illicit lovers or servants). He notes that “the blackmail statutes began to appear roughly about the same time and with the same underlying ethos as the other laws that made up the Victorian compromise.” (p. 99). A similar point is made in Angus McLaren’s book-length account of blackmail, Sexual Blackmail: A Modern History (2002). McLaren observes that courts would ignore the truth or falsity of the blackmailer’s accusations, which, if true, would often mean that the blackmail victim had engaged in serious criminal conduct. (more)