The Letterman Case: Extortion or Blackmail?

by Jamison Koehler on October 23, 2009

David Letterman’s recent revelation that he had been having affairs with female members of his staff and his reason for making the revelation – threats by a CBS producer to reveal the indiscretions — bring attention to what I believe are two interesting and often misunderstood crimes:  extortion and blackmail.  While all the news reports I have seen use the term “extortion,” the alleged offense could just as easily fall into the category of blackmail.  (See Washington Post article for sample of coverage.)

While I am not familiar with the laws in either New York or Connecticut or wherever else a potential criminal case could be brought and while the two terms are often used interchangeably, there are in fact several distinctions.

Extortion is an interesting crime in that it combines elements from two other crimes:  theft and assault.   Like theft, extortion involves the wrongful taking of another person’s property.  Like assault, it requires force or the threat of force.

There is another crime which also combines elements from both theft and assault:  robbery.  The difference between extortion and robbery is that robbery requires a threat of immediate force.  Extortion threatens future harm, either physical or economic.

If extortion is one step removed from robbery, then blackmail is two steps removed.  It too involves the wrongful taking of another person’s property.  And it too requires a threat.  The threat in blackmail, however, is not of force of violence, either immediate or in the future.  Instead, blackmail threatens reputation, disgrace, or embarrassment.

So what is the proper term for the CBS producer’s behavior in the Letterman case?  At first glance, a demand for $2 million to forebear writing a screenplay about Letterman’s indiscretions sounds a lot more like blackmail than extortion.  The producer was not threatening force or violence against Letterman; he was threatening to sully Letterman’s marriage and reputation.

At the same time, by common law and at least still in some jurisdictions, extortion also includes an economic component to it.  The threat can be one of economic, as well as physical, injury.  In this case, assuming that disclosure of the affairs could hurt the Letterman’s “brand,” so to speak, then the producer’s demand can properly be considered one of threatening economic injury.  The offense is thus brought within the category of extortion.

Between extortion and blackmail, extortion generally carries the stiffer penalties.  What does this say about our society when our laws consider it a greater offense to harm someone’s economic interests than his or her reputation?  I guess there is not much to be said for the old maxim that a person’s reputation is worth more than anything money could ever buy.

One Comment on “The Letterman Case: Extortion or Blackmail?

  1. I ejoyed the article on blackmail and extortion. It communicated simply and effectively so that one could read through it and understand the concepts rather than be overwhelmed by information that left one, at the end of it, confused. It had an informed, personal, straightforward and helpful tone.

    It is interesting that the law makes a distinction that is not apparent in the dictionary. My understanding of extortion was based on the Latin roots, ex (out) and torquere (to twist). Black mail, etymologically speaking, goes back to Old English “mal” which meant “tribute” or “payment,” and even earlier to Old Norse, meaning “agreement,” from the tribute extorted by bandits and pirates from Scottish and English farmers for protection against pillage. “Black mail” was paid in such form as cattle, and “white mail” in silver.

    But I guess according to the law, modern “bandits” such as the Mafia taking money from restaurants in New York for “protection” against pillage would not be black mail, but extortion, and so would carry a lesser penalty.

    The dictionary does add one component to extortion, however, that may or may not be a legal consideration. It adds to the obtaining of money by threats, force, abuse of authority or other type of oppression – “esp. as done by a public official.”

    So this brings me to another question. Would you say that making the environment seem more threatening than it actually is in order to get appropriations for things, or to frighten the populace so much that they willingly give up not only money but go to war and risk their lives overseas while the ones they leave behind give up the very freedoms which, nominally, they’d sacrificed themselves to defend, extortion?

    And what about torture? It comes from the same Latin root?

    Law and language. Maybe they can work together to get it right! But back to Letterman, I liked the way David Letterman handled the situation. As I understand it, he came out and admitted his indiscretions. Whether he did so for “good” reasons or “bad,” I see that as the best defense against extortion, other than leading a good, clean, honest life in the first place . That, and having a lawyer who is willing to defend one against those misusing big sticks or trying to benefit from another’s errors when the ones that should benefit and wouldn’t are the family members and loved ones of the one who erred.

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