Stephen Sachs has posted an engaging little paper on SSRN suggesting that blackmail laws be amended to prohibit people from threatening to destroy their own property unless interested bystanders pay up. He frames his paper around the example of Savetoby.com, a web site whose entrepreneurial owners (James and Brian) are pledging to kill and eat a cute, lovable bunny named “Toby” unless members of the public buy their book. So far, the book has sold thousands of copies and sparked a great deal of controversy on its Amazon.com page. There is no way of telling whether people are actually buying James and Brian’s book in order to save Toby, or just purchasing the book to reward the authors for an unorthodox publicity stunt. If the former, then it seems like a macabre example of the willingness of ordinary people to pay for humane treatment of animals, described in Cass’s post below.
So is Sachs right that we need to amend our blackmail laws? I’m inclined to think not.
Animal cruelty laws ought to govern threats like the one faced by Toby. And the appropriate response to a child who threatens to hold her breath until she turns blue is probably to call the bluff, though I will admit to a lack of expertise on that score. Where there is reason to think that calling the bluff will force the owner to destroy the property in question so as to maintain the credibility of future threats, the state can always exercise its eminent domain power to take property from the person who is threatening to destroy it. Indeed, I think that using the eminent domain power to save Toby is analogous in some ways to what the government was attempting to do in Kelo, and someone who believes that Kelo was wrongly decided should ask herself whether she would object to using eminent domain to take a Picasso away from someone who credibly pledges to burn it.
Sachs says that “extortionate” destruction of one’s own property does not typically implicate constitutionally protected expressive interests. But we should be familiar with one very effective form of “threatening to kill Toby.” Hunger strikes have been used with great effectiveness by political dissidents, so I guess I wonder about Sachs’s determination that prohibiting the “hunger strike” variety of blackmail will not implicate the expressive and autonomy interests that often arise when people decide to destroy their own valuable property. The fact that a hunger striker will eat if his demands are satisfied hardly removes the expressive content from his act.