Is Threatening To Publish Bezos' Nude (or Nudish) Pics Criminal Blackmail?
Eugene Volokh | Feb. 8, 2019
Jeff Bezos alleges that the National Enquirer has (1) threatened to release photos sexted between him and Lauren Sanchez unless (2) he puts out a statement recanting allegations that various Enquirer coverage was politically motivated (and promises not to make such allegations in the future). Is this criminal blackmail?
Here is an excerpt of the email that Bezos says the Enquirer sent him:
1. There has to be a transmission in interstate commerce. An email qualifies.
2. There has to be a threat to injure reputation (whether through false allegations or through true ones). A threat to publish sexually themed pictures would qualify, I think. True, Bezos's affair with Sanchez is already publicly known, but the photos, if revealed, are likely to exacerbate the damage to his reputation by making the story more vivid and memorable and by exposing him to public ridicule. (Compare State v. Pauling (Wash. 2003), which found that a similar threat was a threat "[t]o expose a secret or publicize an asserted fact, whether true or false, tending to subject any person to hatred, contempt, or ridicule." A common definition of injury to reputation is exposing someone to "hatred, contempt, or ridicule.")
3. The threat has to be aimed at getting a "thing of value." Courts have generally read this broadly, to cover anything (tangible or intangible) that's valuable to the defendant. U.S. v. Hobgood (8th Cir. 2017) holds that even extorting an apology from the victim is covered:
How does this play out? Let's return to Hobgood, where the defendant demanded an apology from his ex for her supposed mistreatment of him during their brief relationship. Had he done this simply by threatening to reveal the mistreatment—"apologize to me for beating me, or I'll tell all our friends how you beat me"—then the nexus element would have been satisfied, and he would have been off the hook. But he was threatening to do something else, which meant that he failed the nexus requirement:
Finally, note that the Washington extortion statute, which basically has the same elements as the federal statute (though without the need for interstate communications), may also apply here: Though the messages were presumably sent to Washington from out of state, Washington law covers any "person who commits an act without the state which affects persons or property within the state, which, if committed within the state, would be a crime." Bezos is apparently a Washington resident.
Eugene Volokh | Feb. 8, 2019
Jeff Bezos alleges that the National Enquirer has (1) threatened to release photos sexted between him and Lauren Sanchez unless (2) he puts out a statement recanting allegations that various Enquirer coverage was politically motivated (and promises not to make such allegations in the future). Is this criminal blackmail?
Here is an excerpt of the email that Bezos says the Enquirer sent him:
And here's the federal extortion statute, 18 U.S.C. § 875(d):
here are basically four elements in this statute:
1. There has to be a transmission in interstate commerce. An email qualifies.
2. There has to be a threat to injure reputation (whether through false allegations or through true ones). A threat to publish sexually themed pictures would qualify, I think. True, Bezos's affair with Sanchez is already publicly known, but the photos, if revealed, are likely to exacerbate the damage to his reputation by making the story more vivid and memorable and by exposing him to public ridicule. (Compare State v. Pauling (Wash. 2003), which found that a similar threat was a threat "[t]o expose a secret or publicize an asserted fact, whether true or false, tending to subject any person to hatred, contempt, or ridicule." A common definition of injury to reputation is exposing someone to "hatred, contempt, or ridicule.")
3. The threat has to be aimed at getting a "thing of value." Courts have generally read this broadly, to cover anything (tangible or intangible) that's valuable to the defendant. U.S. v. Hobgood (8th Cir. 2017) holds that even extorting an apology from the victim is covered:
4. But wait:
That's from U.S. v. Jackson (2d Cir. 1999), which was modified later on other grounds. The case involving an attempt to extort $40 million from Bill Cosby "by threatening to cause tabloid newspapers to publish" a woman's "claim to be Cosby's daughter out-of-wedlock." All those examples have this form:
- A has a plausible claim that B should do X (e.g., make good on a warranty, or pay a debt).
- A is demanding that B do X.
- A is threatening to reveal that B hasn't done X.
How does this play out? Let's return to Hobgood, where the defendant demanded an apology from his ex for her supposed mistreatment of him during their brief relationship. Had he done this simply by threatening to reveal the mistreatment—"apologize to me for beating me, or I'll tell all our friends how you beat me"—then the nexus element would have been satisfied, and he would have been off the hook. But he was threatening to do something else, which meant that he failed the nexus requirement:
State v. Pauling (Wash. 2003) reached a similar result applying Washington state extortion law:
For the same reason, I don't think the nexus requirement covers what the National Enquirer is accused of threatening. Even if the Enquirer has a plausible claim of right to the apology for allegations of political influence (perhaps if the allegations were indeed incorrect)—and a plausible claim of right to having Bezos promise not to repeat those allegations—the threat to publish the photos is not "related to that right."
Finally, note that the Washington extortion statute, which basically has the same elements as the federal statute (though without the need for interstate communications), may also apply here: Though the messages were presumably sent to Washington from out of state, Washington law covers any "person who commits an act without the state which affects persons or property within the state, which, if committed within the state, would be a crime." Bezos is apparently a Washington resident.
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