Lawsplainer: Did Gawker Aid and Abet Extortion? Nah.

tl;dr: nah.

Last week Gawker Media published an unusually vile story about an escort's apparent attempt to blackmail a married entertainment executive. In just one post, Gawker outed a man for an alleged same-sex encounter and acted as the willing instrument of blackmail.

Many Internet Lawyers have suggested that Gawker committed extortion, or acted as accessory after the fact to extortion, and that its writers may be criminally liable.

Are they?

Answer: no, probably not.

Assume For the Moment They Aren't Just Credulous Hacks

Let's set aside for the moment the distinct possibility that the whole incident is the invention of an unbalanced conspiracy theorist who duped Gawker through the intricate method of saying something scandalous that reinforced their worldviews.

Let's also assume, for the sake of argument, that the escort's communications to the victim constituted extortion: that at some point he said something like "use your influence to help me with my legal problem or I will reveal to the media that you sought to hire me for sex." Gawker's post containing some of the alleged communications is down, and we can hardly trust Gawker to have reported them completely or accurately.

Did Gawker Commit Extortion? No.

Title 18, United States Code, section 875(d) makes extortion a felony:

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.

Many courts have defined "other thing of value" broadly enough that it can probably include the victim's use of his influence to assist the extortionist in a legal matter.1

The escort may have violated this statute, but Gawker didn't. So far as we know, Gawker and its writers didn't demand anything of value from the victim. Rather, once the extortionist came to them, they printed his story. They carried out the course of action threatened by the extortionist, but they didn't make the threat or demand the thing of value themselves.

Was Gawker an Accessory after the Fact? No.

Title 18, United States Code, section 3 criminalizes being an accessory after the fact. However, that status is narrowly defined to helping people escape:

Whoever, knowing that an offense against the United States has been committed, receives, relieves, comforts or assists the offender in order to hinder or prevent his apprehension, trial or punishment, is an accessory after the fact.

Gawker didn't do that. If anything, publishing the extortionist's story made it more likely he'd be caught.

Did Gawker Conspire To Commit Extortion? No.

I don't think Gawker conspired to commit extortion, either. The elements of federal conspiracy are "1) an agreement to accomplish an illegal objective, 2) coupled with one or more acts in furtherance of the illegal purpose, and 3) the requisite intent necessary to commit the underlying substantive offense." But here the unlawful objective is demanding something of value (an exercise of influence) in exchange for silence. There's no indication that Gawker did that or agreed to it. If Gawker had said "unless you help this guy, we'll publish," that would be conspiracy to commit extortion. But what Gawker did instead was publish the threatened embarrassing information. There's no indication that they attempted to help the extortionist get anything from the victim.

Did Gawker Aid and Abet Extortion? No.

Someone can also be guilty of extortion if they aid or abet it under Title 18, United States Code, Section 2:

(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.
(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.

The elements of aiding and abetting are:

(1) that the accused had the specific intent to facilitate the commission of a crime by another, (2) that the accused had the requisite intent of the underlying substantive offense, (3) that the accused assisted or participated in the commission of the underlying substantive offense, and (4) that someone committed the underlying substantive offense.

That's not what Gawker did. Gawker didn't intend to help the extortionist get something of value from the victim in exchange for silence. That's the opposite of what Gawker wanted — a lurid story to draw clicks. Gawker lacked specific intent to extort, so didn't aid and abet extortion.

There Oughta Be A Law

You could imagine a law that, like a prohibition of receiving stolen property, makes it illegal to publish embarrassing facts to help an extortionist carry out their threat. But that law would probably run afoul of the First Amendment, like any law that ascribes to a publisher of information the liability of their source.

Gawker and its writers probably didn't violate federal law.2 Whether they have civil liability is a different (and potentially more complicated) question. And, of course, they have moral liability: they're vermin.

  1. That distinguishes Section 875(d) extortion from Hobbs Act extortion, which requires that the extortionist deprive the victim of money or tangible valuables.  
  2. I don't think the result is any different under the law of New York, where Gawker squats, nor Texas, where the extortionist lives, nor where the victim lives. I could explain but do some work yourselves, you entitled, indolent bastards.  

Last 5 posts by Ken White


  1. Harold says

    Hasn't "[do this thing] or I'll leak [juicy details] to the press" been a standard extortion technique for literally centuries? Is there something different about this case that I'm missing?

  2. Pat says

    Hasn't "[do this thing] or I'll leak [juicy details] to the press" been a standard extortion technique for literally centuries?

    Yes, but that's what the escort apparently did, not what Gawker did.

  3. Nicholas Weaver says

    One other thought: Since they do have a lot of evidence of a crime, a civil grand jury subpoena or search warrant could easily make the Gawker reporter's life a living legal hell.

  4. says

    I remember reading the article and being grossed out by it and not really being able to articulate why. It just seemed meaner than usual and upon reflection, it was the escort using Gawker to out the victim that really was just gross. And then the post about removing the post — sorry, Gawker, the grenade already exploded, you can't put the pin back in it. There is no undo for real life.

    Never thought about Gawker's liability for extortion, though, to be honest.

  5. En Passant says

    Gawker and its writers probably didn't violate federal law.

    Of course not. They didn't mention woodchippers or special places in hell. The evolving standards of decency that mark the progress of a maturing society aren't just for the Eighth Amendment any more.

  6. Harold says

    Yes, but that's what the escort apparently did, not what Gawker did.

    Yeah, I wasn't very clear. I'm just saying this has gone on forever, but people are acting like this is some new level of atrocity. Gawker is a tabloid, and tabloids take a story and run with it. Sure they might get sued for civil defamation / libel-slander, whatever. They're not going to get charged with extortion, unless there's a lot more to the story.

  7. Scott Jacobs says

    So since Gawker didn't break any laws (which doesn't chock me), what sort of danger might they be in should a certain private individual file a lawsuit?

    Or are they probably pretty safe there, since they may not have anything after the Hogan suit?

  8. Dan Weber says

    Unusually vile, even for Gawker.

    Browsing some of the more dramatic parts of the Internet, I often encountered scenarios where person A tells person B "I have your secret information, now quit your job / take down your website / delete your Twitter account, or else I dox you." This would seem to be a "thing of value," wouldn't it?

  9. Colin says

    Man, assuming Gawker isn't a bunch of credulous hacks has to be up there with "pretend there's no coefficient of friction" or "assume people will act logically" in terms of creating a framework completely divorced from the real world.

  10. Boblipton says

    It seems to me that Gawker was acting in its usual legitimate manner in offering its audience gossip that might appeal to its interests. If it is guilty of any charges, then by the same logic, when a crimebreaker gets on a bus, train or airplane to flee the authorities, they, are equally guilty. Since this is absurd, then any charges against Gawker must be likewise absurd.


  11. Docrailgun says

    I'm a Gawker Truther – I think the story was run to make Conde-Nast look worse, to try to punish them for the Reddit issue.

  12. Pete says

    They didn't mention woodchippers or special places in hell.

    One man's gossip is another man's Hit & Run. Gossipers bitching about gossip. Priceless.

  13. Liam says

    @scott jacobs
    losing the hulk hogan lawsuit will probably not mean that they are 'safe.' saying 'whoops sorry i have no money, i spent it paying my other creditors' doesn't protect them from having to pay out. Filing for bankruptcy and being forced to sell all the company's assets will, but i wouldn't describe that as 'safe.'

    it's pretty cool that they did this at a time when their libel insurance is almost certainly tapped out. It means that even if they completely smoke Hulk Hogan and get all his complaints thrown out, they'll have a hard time paying for another few years of brutally expensive lawyers to protect them from this guy.

    What I really hope is that all of this is a stupid, easily discredited lie and after hulk hogan burns down their offices the poor bastard from conde nast sues what remains into a smoking crater. I'm not a fan of gawker.

  14. Rich Rostrom says

    Suppose a blackmailer demands money, is refused, and publishes the scandalous inforrnation. Does the publication count as a crime? Does the blackmailer gain anything by it? Not directly.

    The blackmailer Charles Augustus Milverton told Sherlock Holmes "An exposure would profit me indirectly to a considerable extent. I have eight or ten similar cases maturing. If it was circulated among them that I had made a severe example of the Lady Eva, I should find all of them much more open to reason."

    The publication of the scandal when payment is refused is an essential element of blackmail.

    And there is an obvious way for Gawker to benefit. By doing the blackmailer's dirty work in publishing, Gawker makes itself a logical recipient for other blackmailers in similar situations. They will supply Gawker with future stories for use.

  15. Aquillion says

    Suppose a blackmailer demands money, is refused, and publishes the scandalous inforrnation. Does the publication count as a crime? Does the blackmailer gain anything by it? Not directly.

    Here's an easy way to understand why what Gawker did (as far as we know) isn't illegal. Suppose that instead of his sexuality, someone was trying to blackmail an executive because of corruption, or because of something else that it was genuinely in the public interest for us to know. Would a newspaper be unable to publish it simply because it was leaked to them? If Deep Throat had tried to blackmail Nixon, would that make it illegal to publish his story when he takes it to the press? Is your argument that a newspaper cannot break a story if their source obtained it in an underhanded manner, or tried to do something underhanded with it before giving it to them? I don't see any other way to read it — "if you publish something that came from a blackmailer, you are guilty of blackmail" causes all sorts of problems along those lines and could lead to newspapers being forced to suppress stories that (unlike this one) they genuinely ought to have published.

    (Keep in mind, your logic would always apply in that case — newspapers stay in business by publishing things, and they benefit from leaks, even illegal leaks. Woodward and Bernstein totally benefited from breaking Watergate — in dramatic, life-changing ways, no less.)

    Obviously this wasn't something that the public desperately needed to know, but it's like most first amendment cases (and yes, Gawker's right to publish even really terrible stuff that was given to them by terrible sources is a first amendment issue.) We have to protect even the people who are really awful, because the alternative would be having the courts and the government deciding what leaks a newspaper can publish. That doesn't mean that Gawker is entirely off the hook if their publication was eg. irresponsible and inaccurate or something along those lines, but the right of newspapers to publish things that come to them in questionable ways like this is important enough that we can't give it up even when someone (like Gawker) does something awful with it.

  16. Robert What? says

    I'm pleased to say that I haven't given Gawker even a single click over the last couple of years. The little bit of reading I've done on this torrid affair has been through archives.

  17. says

    Damn. I had my suspicions, Ken. I figured gawker's lawyers wouldn't have let that go through if they were CRIMINALLY liable. Shame it turns out they were right. They were still pretty damned stupid to not realise the civil aspect though. Thanks for confirming everything anyway, even if it's a bit of a letdown.

    I really hope everyone they ever crapped on, even going back to '09 when they started publishing this stuff like crazy, comes out of the woodwork and launches civil suits of their own. Not sure if there's a limitations statute on continuous libel through an article remaining on a site or being search-enabled though. That's kind of something nobody has tackled legally yet. (see: the amount of people that still randomly accuse Brad Wardell of being a creeper because the first page of results is half websites reporting on that old lawsuit)

    My solution to that would be, if google does not wish to knock it lower (I imagine they'd be afraid of possible reporting abuse if they allowed it to go through), that the publication make it harder for google to come across that article so it falls to page 4. Basically have someone in the court trained in SEO optimisation but instead going the opposite way and helping the losing defendant push the article down to avoid being fined/heavier fines.
    For example, Gawker's story received such a big blast from other media that it's likely people would know what you were talking about if you deleted Conde, or changed it to CNast. But it would drop the search hits a little bit. Do that for other parts of the article, or reword paragraphs so they look nothing like the original, but still carry the same tone/information. That's just my idea on how it could work, since you can't fully 'unpublish' something online, and it sets a mildly bad precedent to do so (as Tortillo pointed out as to why he defended the article even if he hated it)
    Either print a retraction that gets more search hits, or ruin the search hits for the original article.

  18. says

    @John: yeah, I was mocking those people yesterday. Kind of sad to premise your political worldview on internet porn and sexual insecurity.

    I see they would hate me for my family, too. Oh well.

  19. Mark Z. says

    Hey, look at the spammer! "Here's a thing I wish would go viral. Want to help me make it go viral?"

  20. Rich Rostrom says

    Aquillion: where did I call for a rule or a law? My point was that the legal, nominally beneficial action of a publisher could be de facto collaboration with a blackmailer. I don't know any good way to stop this – blanket prohibitions would throw the baby out with the bathwater. But it ought to be thought about.

  21. C. S. P. Schofield says

    "And, of course, they have moral liability: they're vermin."

    This is hardly news. OTOH, entertainment executives also tend to be vermin. Not, perhaps, all of them, but a significant proportion. How else explain the green-lighting of swill like HERE COMES HONEY BOO BOO?

    If you don't want to be subject to blackmail or vile revelations by the press, don't do anything you are ashamed of, and if they latch on to something you did when you were 17, say "I was 17. I'm (53) now. Are you the same person you were when you were 17?".

  22. MelK says

    …but do some work yourselves, you entitled, indolent bastards.

    My parents were married, thank you very much! :)

  23. En Passant says

    C. S. P. Schofield July 23, 2015 at 4:11 pm:

    If you don't want to be subject to blackmail or vile revelations by the press, don't do anything you are ashamed of, and if they latch on to something you did when you were 17, say "I was 17. I'm (53) now. Are you the same person you were when you were 17?".

    There are virtually no neutral or even virtuous acts or personal characteristics that some group of sufficiently roused fools cannot twist to appear shameful to some population.

    Own a gun? Many can be readily persuaded, or may already believe, that you are a murderous creep just waiting for the opportunity to take out a Sunday School class.

    Atheist? Catholic? Presbyterian? Zoroastrian? Many will believe you harbor dangerous ideas and ambitions to enslave the innocent, or to hold slave owners innocent.

    Any act or opinion, revealed with properly crafted spin, can appear to be shameful. Any fool can make that attempt. Some will persuade large numbers of other fools.

    As Twain helpfully explained, "Hain’t we got all the fools in town on our side? And ain’t that a big enough majority in any town?"

    The best defense against blackmail, and by far the most difficult, is to decline to give a flying F at a rolling donut about what anybody thinks of you.

  24. says

    I don't think we're focused on the real problem. Why didn't Gawker press this guy on who was behind Malaysia 370?

  25. Xtifr says

    Not only is it legal, I don't think there's any sane way to make it illegal. As a thought experiment, let's try to compose a law. First question, what are we trying to prevent? Publishing something that someone doesn't want published? No, that's clearly too broad. So, extortion has to be involved. But the publisher doesn't have to be involved in the extortion, right? So how will this work? Strict liability? Anyone who publishes something provided by an extortionist is liable? That punishes publishers who accepted a submission in good faith from what they thought was a whistleblower. The chilling effect would be nearly as bad as if we just forbade publishing anything someone doesn't like! So, it has to involve mens rea, right? But then, the extortionist is simply not going to mention his extortion! And the publisher will never know extortion was involved, and can't be prosecuted. So, the law is completely worthless.

    I confess, I cannot see any middle ground between these two extremes. If you can, feel free to explain how *your* version of the law would work.

  26. CEOUNICOM says

    does anyone else get Popehat via RSS? Seems to be stuck on July 9th post, hasn't updated.

  27. Rich Rostrom says

    Xtifr:July 25, 2015 at 2:23 am:

    And the publisher will never know extortion was involved, and can't be prosecuted.

    Can never be proved to have known extortion was involved. That's something grifters and grafters of various kinds have fastened onto. Many forms of official corruption are carried out without either party explicitly asking for anything.

  28. Mikee says

    RE: mikie
    "I'm guessing gawkers 15 minutes are up. Funny how markets tend to do that."

    Really? So even though they outlasted threats from the Church of Scientology seven years ago, you think this is what will do them in? The FBI started an investigation into Gawker over the leaked Sarah Palin emails, and they're still around. Eric Dane, Christine O'Donnell, Congressman Chris Lee, and exposing the virulent troll Violentacrez, and you think this is what is going to end Gawker? You really think Hogan has a chance in hell with a jury after losing his job because of his love of racist words?

    RE: the rest of the commenters

    It's kinda scary how many people are advancing a pro-censorship/anti-free speech agenda here. I don't read Gawker, I sometimes read their sister site Kotaku because most of the other gaming sites have simply turned into crybabyfests whining that modern games aren't like the games they remember from childhood. We've got Mr. Weaver trying to say that abusing the legal system in order to harass someone they don't like it acceptable. Liam tries to make it sound like Gawker raped a child instead of simply publishing a video that had some interest to the public. Vinz tries to make a case for altering search results simply to shield peoples delicate sensibilities even though Gawker has been convicted of no crimes, ever, at all.
    I guess it's a good thing that you're all here, on Popehat, reading about the First Amendment, so maybe by the time you've acquired an education you'll know not to make such stupid, childish, petulant comments in the first place.

  29. Jeff says

    And, of course, they have moral liability: they're vermin.

    You insult vermin everywhere.

  30. mikie says

    Gawker is a site that exists to troll people. I certainly agree that it's their right to troll as most here would.

    I'm simply stating that at some point people will get that and ignore these idiots. If you have a warboner over scientologists, whatever, I don't give a shit about them, like 99% per cent of the rest of us. If you think you have an axe to grind in regards to these clowns, I don't give a shit about you or scientologists. Fuck off and die….pussies like you that need government to massage your feelings are fucking pathetic. Simple as that.

  31. mikie says

    And, yeah, Gawker is headed for the dustbin of history, funny how markets work, dumbass, when people don't believe the content they quit reading it…sorta like Gawker. They are toast.

  32. Bob says

    While I can see how a press outlet publishing material sourced from an extortionist shouldn't necessarily be considered a criminal act, I wonder if it makes a difference that in this specific case, Gawker was explicitly aware that they were acting as the delivery system in an extortion scheme.