The Glade 4.0

Interesting (to a legal geek, anyway) blog post and subsequent comment thread on the legal and logical distinctions, or lack thereof, between Constitutionally-protected rights to freedom of speech and contract and the legally-prohibited crime of blackmail:

What if I sell you the publishing rights to the embarassing information? Would that still constitute blackmail?

_________________

Yeah, as someone in the comments at the Volokh post noted, that's basically what the guy who tried to blackmail David Letterman did, and he got busted for it. On the other hand, when Tiger Woods paid hush money to one of his mistresses in exchange for her signing an NDA, that was both perfectly legal and a legally enforceable contract! So who the hell knows.

I think the answer is quite simple. Just because two actions may be independently acceptable does not make them acceptable in conjunction. It's much like the "selling is legal, **** is legal, why isn't selling **** legal?" argument. Typically for Carlin, it's because of the surrounding factors that occur when you combine them.

Lets change it up. Selling is legal, children are legal, but selling children is not legal. Even if we acknowledge that children are not actually property, even selling parental rights to the children (which is essentially selling the children) isn't legal either.

_________________
"Hysterical children shrieking about right-wing anything need to go sit in the corner and be quiet while the adults are talking."

Some instances of selling children is legal, though. Surrogate mothers come to mind.

_________________

As is some selling of ****. Porn or Nevada come to mind.

How overt do you have to be about asking for money for it to be blackmail? Can't you just be really subtle about it? "Hmm... so I just happened to come across this sex tape of yours. Man, that sure would be bad for your career if it was released to the public."

Exactly the point. The circumstances created by the combining of the two things are what are the final determining factor. Surrogate motherhood is not legal simply becuase selling is legal and children are legal. Porn is not legal simply because selling is legal and **** is legal.

_________________
"Hysterical children shrieking about right-wing anything need to go sit in the corner and be quiet while the adults are talking."

So then simplify the answer and plainly state the dividing line between a legal and an illegal set of circumstances.

_________________

That's not my job. That's the job of the legislature and the courts.

_________________
"Hysterical children shrieking about right-wing anything need to go sit in the corner and be quiet while the adults are talking."

But you said you think it's quite simple.

_________________

The concept that that combining two things creates circumstances that don't exist with the two things indepedently is quite simple. I am unwilling to take the time and effort to analyze the factors involved in any one particular example. Blackmail is different from children-selling is different from sex.

To put it another way: "selling is legal, **** is legal, why isn't selling **** legal?" may be funny, but it is sophomoric analysis. There's good arguments to be made that selling **** ought to be legal in certain circumstances, perhaps in significantly more circumstances than it presently is. However, the George-Carlin-smartass-high-school-kid argument is not one of them.

_________________
"Hysterical children shrieking about right-wing anything need to go sit in the corner and be quiet while the adults are talking."

You're the one who brought up prostitution and child trafficking. Did you perhaps mean to say that the blackmail issue is quite complex? Also, I think you mistake the purpose of the George Carlin bit. As, I'm sure, do most high schoolers.

_________________

I happened across this sex tape of you in my house. On an unrelated note my house and its contents are currently up for sale for the bargain basement price of $1M.

_________________

No, I don't mistake the purpose of George Carlin. The man was a fool, with little purpose to begin with, so mistaking it would be quite difficult. As to prostitution and child trafficking, those are examples of similar situations where just because 2 activities are ok independently of each other does not mean they are ok in conjunction.

You can stop, by the way, with the pointless baiting.

_________________
"Hysterical children shrieking about right-wing anything need to go sit in the corner and be quiet while the adults are talking."

True, but what if I blackmail someone into having sex with me so I can sell the resulting children? Hm? Not so distinct now, are they, Mr. Smarty-Pants?!

What baiting? You said "I think the answer is quite simple." in response to (I have to assume) RD's post about what could possibly be the material difference between two exceedingly similar situations. And then you started talking about prostitution and George Carlin and child trafficking.

_________________

There's nothing sophomoric about it if you believe it is the government which has an obligation to justify itself to the governed rater than the other way around. What specifically about the combination of two legal activities creates an overriding public interest where none previously existed? And, no, "well it's just different" is not a valid answer.

Sometimes there is a rational justification in these sorts of situations. For instance, drinking is legal, driving is legal. Why is drinking and driving illegal? Though the answer might seem "obvious", it's important that we ask and receive an answer to it -- most importantly because law without justification is simply tyranny. Beyond that, there are many ways and degrees to which these actions can be combined. If the government cannot elucidate what exactly the public interest is, it cannot determine the proper conditions for the law.

_________________
Sail forth! steer for the deep waters only!
Reckless, O soul, exploring, I with thee, and thou with me;
For we are bound where mariner has not yet dared to go,
And we will risk the ship, ourselves and all.

Yes, I'm sure the comparison to a high schooler was not baiting. I'm certain it was a totally innocent side comment you decided to type for no apparent reason.

_________________
"Hysterical children shrieking about right-wing anything need to go sit in the corner and be quiet while the adults are talking."

The need of the government to justify itself to the governed is not relevant here. There is hardly any major public demand that it be legal to blackmail people. The need of the government to justify itself, furthermore, does not translate to someone who thinks a particular prohibition is a good idea needing to justify it to those that for whatever reason want to take issue with it. "The governed" are not a unified group in agreement with one another.



The government elucidates exactly what it thinks the public interest is according to the views of those that happen to be in office at the time. The public, in turn, is responsible for electing those people in the first place.

Law "without justification" is not "tyranny" at all. Justification to whom, exactly? To the voters? If the voters feel the law is unjustified, they are welcome to demnd it be changed, or to elect new representatives who will change it in the future.

Furthermore, Carlin's "why isn't selling **** legal?" is, indeed, sophomoric. The government of any of the 49 states where it is not obligated to explain itself as to why prostitution is illegal. It's illegal because the voters there either want it that way, or are unconcerned enough with the issue that they have not demanded change in the law. Just because someone asks a "Gotcha" rhetorical question that they would not be likely to actually accept any answer to anyhow does not mean the government has no justification for the law.

_________________
"Hysterical children shrieking about right-wing anything need to go sit in the corner and be quiet while the adults are talking."

Do you even pay attention to what you say?

_________________

Yes. Quite. George Carlin's argument is one that I would expect of a high school sophomore, who is determined to find fault with what the adults have told him. Why that merited comparing me to a high school sophomore, by claiming I "mistook his purpose" is beyond me.

_________________
"Hysterical children shrieking about right-wing anything need to go sit in the corner and be quiet while the adults are talking."

I didn't compare you to a high school sophomore. Bearing in mind that you are not a fan of George Carlin, that doesn't make him a fool. His routine on selling and ****, aside from attempting to garner laughs, was also meant to provoke thought. He was a comedian who used provocative language and subjects. You dismiss it because you don't like George Carlin. A high schooler takes from the routine a different message, not investigating farther than "yeah, let's be allowed to get hookers". Which you can see how that would appeal to a high schooler. Attempting to compare George Carlin's logic to a high schooler's does a disservice to the material, either you did so purposefully because you are seeking to denigrate the material, or you did so accidentally because you have never given any thought to George Carlin's material beyond a high school capacity. Either way, you drew the comparison. If you are insulted by that, maybe you should be more careful.

_________________

I wasn't discussing blackmail here, but since you bring it up, yes the government does need to justify all of its laws in terms of the powers granted to it. That's what a constitutional government is. That a law is uncontroversial does not make it immune to that need.


Of course you don't have to support your position, but if you can't or won't do so, then you really ought to either concede or just bow out of discussion, respectively. Certainly there's no sense it getting pissy at people because they expect you to support your own position.


Before I say anything else I want to be sure I have this clear -- your argument is that whatever elected officials decide is just unless and until it is overturned?

_________________
Sail forth! steer for the deep waters only!
Reckless, O soul, exploring, I with thee, and thou with me;
For we are bound where mariner has not yet dared to go,
And we will risk the ship, ourselves and all.

I do have to give Diamondeye's credit for consistency here. He has not once, in my knowledge, ever made a statement which might lead the audience to believe that he agrees with the premise that government derives it's authority from the just consent of those governed. Rather, he has always spoken as though he subscribes to the school of thought that a citizen has no right to question the will or word of any authority figure.

_________________
Buckle your pants or they might fall down.