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39 Conn. L. Rev. 1051 (2006-2007)
The Solution to the Real Blackmail Paradox: The Common Link between Blackmail and Other Criminal Threats

handle is hein.journals/conlr39 and id is 1061 raw text is: CONNECTICUT
VOLUME 39                  FEBRUARY 2007                    NUMBER 3
The Solution to the Real Blackmail Paradox:
The Common Link Between Blackmail
and Other Criminal Threats
Disclosure of true but reputation-damaging information is generally legal.
But threats to disclose true but reputation-damaging information unless payment
is made are generally criminal. Most scholars think that this situation is
paradoxical because it seems to involve illegality mysteriously arising out of
legality, a criminal act mysteriously arising out of an independently legal threat to
disclose conjoined with an independently legal demand for money. But this is not
quite right. The real paradox raised by the different legal statuses of blackmail
threats to disclose and disclosure itself involves a contradiction between our
strong intuition that blackmail threats should be criminal and some equally strong
arguments, all of which depend on the fact that disclosure is legal, that blackmail
threats should be legal. So an adequate solution to the real Blackmail Paradox
requires us either to drop the intuition or to refute the pro-legalization arguments.
This Article will adopt the latter approach. It will explain why the six main
arguments for legalizing blackmail threats allfail. In the course of refuting one of
these arguments, it will also offer a novel positive justification for criminalizing
blackmail threats. It will argue that they should be criminal for the same reason
that menacing, harassment, and stalking are criminal-namely, because they
involve the reasonable likelihood, and usually the intent, of putting the victim into
a state of especially great fear and anxiety. Of course, one might object that
disclosure itself is likely to have the same effect, if not malicious purpose. Yet,
again, it is still legal. But this point shows only that we as a society value freedom
of speech more than we value freedom from infliction of emotional injury. It does
not show that we do not value freedom from infliction of emotional injury
sufficiently to protect it when competing moral or institutional interests such as
freedom of speech are not at stake.

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