In the bizarre world that Washington politics has become, few stories are more fascinating than Jeff Bezos’ accusation that the National Enquirer and its parent, American Media Inc., committed blackmail and extortion by threatening to reveal nude pictures of him and his girlfriend unless he would “publicly affirm that The Enquirer’s reporting on his affair was not motivated by political concerns.” Let’s assume that everything Bezos said is true. Most of us sympathize with him (after all, being the world’s richest man is a tough role that does make one awfully vulnerable). All kinds of political motives for threatening him can be imagined (and neither The Enquirer nor the White House are clearly above such motivations). Morally, this alleged behavior is reprehensible.
But is this blackmail or extortion? Only an “old school” law professor would focus on this narrow question. But it is a worthwhile footnote to current events to point out that neither of the two relevant federal statutes apply to this case. First, blackmail is prohibited under federal law by 18 U.S.C. § 875(d), which provides:
“(d) Whoever, with intent to extort from any person, firm, association, or corporation, any money or other thing of value, transmits in interstate or foreign commerce any communication containing any threat to injure the property or reputation of the addressee or of another or the reputation of a deceased person, or any threat to accuse the addressee or any other person of a crime, shall be fined under this title or imprisoned not more than two years, or both.”
Under this statute, The Enquirer and its parent have two legally valid defenses: (1) it had no “intent to extort” (as discussed below) and (2) even more clearly, it was not seeking either “any money or other thing of value” (as the above statute requires). “Thing of value” requires that tangible property be sought. Intangibles, including vague affirmations, are not “things.” Case law has also made clear that one does not transgress this statue if one’s revelation of the facts causing reputational injury is motivated by the pursuit of a legitimate objective.
Extortion is prohibited under federal law by the Hobbs Act, which defines “extortion” as “the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.” The only ambiguous concept here is “color of official right,” and it applies only to political officials and judges. Again, there is a need to seek “property.” Although this property might be intangible under the Hobbs Act, a demand that the victim make a compelled statement does not rise to the level of “property.” Remember that penal statutes are normally construed strictly.
Why is the law so seemingly strict in its definition of these crimes? Good reason exists for a narrow definition, as much in life would otherwise fall within these statutes. If an ex-spouse threatened to reveal that her former husband, an elected official, had not paid legally required child support for years, this could be seen as blackmail — except for the fact that she had a legitimate objective (court ordered money for her children). More generally, broad penal statutes in this area would inevitably chill First Amendment rights.
Nothing in this analysis makes The Enquirer’s behavior responsible or appropriate. Bezos is entitled to be outraged, and he may have valid civil causes of action under state law (for example, for intentional infliction of emotional distress). But with this legal issue now resolved, readers can turn to the next question:
Why do super-rich, very intelligent, and prominent people (who are thus highly vulnerable) take nude selfies? The Blue Sky Blog awaits your responses.
 See Jim Rutenberg and Karen Weise, “Jeff Bezos Accuses National Enquirer of Extortion and Blackmail,” New York Times, February 7, 2019.
 My more modern colleagues would turn to economics or political philosophy to deduce their answers and do not deign to cite statutes.
 See United States v. Jackson, 180 F.3d 55 (2nd Cir. 1999). This case involved the alleged illegitimate daughter of Bill Cosby, who had threatened to reveal his paternity if he did not pay $20 million. The Second Circuit reversed her first conviction because the jury charge failed to make clear that her behavior would not be criminal if she had a legitimate claim of right. One can read this case as requiring that the threat be “wrongful.”
 See 18 U.S.C. §1951(b)(2).
 See United States v. Margiotta, 688 F.2d 108 (2nd Cir. 1980), cert. denied, 103 S. Ct. 1891 (1983). In Margiotta, the victim was placed in fear that he would lose his position as “broker of record” for Nassau County if he did not continue to make the payments directed by the defendants.
 Some have made the argument to me that The Enquirer could reasonably foresee that Amazon’s stock price would drop on any publication of nude pictures of Bezos. Perhaps so, but that is not enough. Under both the blackmail statute, the Hobbs Act, and common law blackmail, the defendant must be seeking to obtain money or property, itself.
This post comes to us from John C. Coffee, Jr., the Adolf A. Berle Professor of Law at Columbia University Law School and Director of its Center on Corporate Governance.