Threatened "outing" of Senator protected by 1st Am? Or unprotected extortion?

Mitch Berman MBerman at
Tue Jan 31 16:35:33 PST 2006

Of course, there's a third possibility -- namely, that such a threat is
not constitutionally protected but still ought not be punished as
extortion (or blackmail) because the reasons that justify
criminalization of (paradigmatic cases of) informational blackmail don't
extend to this case.

Unfortunately, it's hard to say anything noncontroversial in support of
this third possibility precisely because there is so little consensus
regarding the reasons that do justify criminalizing core cases of
blackmail.  Indeed, the so-called paradox of blackmail has long been
recognized as one of the great intellectual puzzles in criminal law and,
some have said, in all of law.

I have argued that threats of this sort ought not to be classed as
criminal blackmail when non-satisfaction of the demand (i.e., when a
specified vote on the measure in question) does sufficiently evidence
hypocrisy.  But that conclusion depends upon my particular theory of
blackmail which, alas, has not (yet?) been universally endorsed.  I
won't bore y'all with details of my account.  If you're interested:
Berman, "The Evidentiary Theory of Blackmail: Taking Motives Seriously,"
65 U. Chi. L. Rev. 795, 864-66 (1998).

Incidentally, a decade ago the Advocate threatened to out Rep. James
Kolbe (R-Az) because of his support for the Defense of Marriage Act.
Kolbe preempted the Advocate by outing himself before the magazine could
do so.  He's presently serving his 11th term in the House.

Mitch Berman
The University of Texas at Austin

-----Original Message-----
From: conlawprof-bounces at
[mailto:conlawprof-bounces at] On Behalf Of Scarberry, Mark
Sent: Tuesday, January 31, 2006 11:39 AM
To: 'conlawprof at '
Subject: Threatened "outing" of Senator protected by 1st Am? Or
unprotected extortion?

See this letter to an unnamed Senator, reported on Daily Kos: Is a threat to "out"
a Senator if the Senator votes a certain way punishable as extortion or
or is it protected 1st Amendment speech? We would all agree, I think,
that if the letter writer had demanded money for his silence, then he
could be subjected to criminal sanctions and civil liability. Does it
matter that the requested act is not payment of money but rather
refraining from casting a vote in the Senate in favor of confirmation of
a judicial nominee?

Note that the letter writer links the threatened "outing" to an argument
that if the Senator votes for Judge Alito's confirmation then the
Senator will be a hypocrite worthy of exposure. Is this just a kind of
political rough-and-tumble that should be protected?

Certainly we are entitled to criticize elected officials when their
public acts are inconsistent with their private lives. Imagine a state
legislator who is considering voting to prohibit smoking in automobiles
in the presence of children but who smokes away with his or her children
in the car. I assume a threat to reveal that private fact if the
legislator votes for the prohibition would not be actionable. Is the
difference that a revelation about cigarette smoking around children is
not traditionally (and probably not even now) something that would
seriously damage the typical person's reputation? And thus a threat to
reveal the fact would not be coercive enough to justify a prohibition on
this kind of threat directed to a public official? If that is the
correct analysis, is the threat to "out" the Senator coercive enough to
justify a prohibition on such a threat? I'm sure someone has written on
this (our esteemed moderator, perhaps?).

Mark Scarberry
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