We Submit By Banning Blackmail
An ancient forager norm tells us to resist domination. And with mere words and other cheap public actions, we do. But when actions are more private, deniable, or expensive, we don’t.
For example, around powerful people we typically more laugh and agree, interrupt less, and are more deferential, polite and flattering. We are ingratiating and conformist to bosses, and less likely to criticize them to other people. And famously:
Economic elites and organized groups representing business interests have substantial independent impacts on U.S. government policy, while average citizens and mass-based interest groups have little or no independent influence. (More)
I’ve written many times before on the subject of blackmail. As the main effect of anti-blackmail laws is to allow rich celebrities to more easily evade norms and laws, my best explanation for such laws is a widespread desire to give them what they want. The most telling evidence is that we allow exactly the same transaction, as an NDA, if initiated by the rich celebrity, but criminalize it if initiated by a poor observer of their transgressions. Which seems to me pretty clear evidence of who the policy is intended to benefit.
I think you're overlooking the core asymmetry between prohibition of blackmail and NDAs: coercion. Blackmail is one-sided coercion while an NDA is a mutually-agreed contract. No one can be compelled to sign an NDA.
The point about it mattering who initiates is accurate: If you come to me and offer me an NDA to keep quiet about your (non-criminal) peccadilloes, that's legal. If I approach you with a word-for-word identical contract, that's a crime. But the difference is about the coercive nature of the two requests, not about the power differential (or, at least, not *only* about the power differential).
And it should be highlighted that NDAs cannot prevent the disclosure of crimes to the authorities. So to the extent that blackmail is submission to elites, we do not extend that submission to protection of criminal acts.
> As the main effect of anti-blackmail laws is to allow rich celebrities to more easily evade norms and laws, my best explanation for such laws is a widespread desire to give them what they want
Or is it about legislators wanting these laws (eg to protect themselves from revelation of their own misbehaviour)? So they passed them without real democratic mandate, either by bamboozling voters into thinking blackmail is bad, or just going under voters’ radar (eg not campaigning about the issue).
Ie voters wouldn’t/shouldn’t want this legislation, but haven’t thought hard enough about it.
Incidentally AFAIK in France revealing politicians’/celebrities’ lawful but immoral behaviour (without blackmail), eg marital affairs exposed by the press, is treated as a breach of their confidentiality and hence is illegal.
Also incidentally, I’ve heard that current case law in the UK means that NDAs covering up such lawful wrongdoing are now unenforceable. (Though that doesn’t stop celebrities and organisations trying to get people to sign aggressively-worded ones.)