Is the National Enquirer guilty of the crime of blackmail?

Question

According to this Guardian article, the National Enquirer has written to Jeff Bezos threatening to publish nude pictures of Bezos unless he stops his investigation into how the Enquirer obtained some private messages.

According to this article by law professor Eugene Volokh in the Washington Post, this is the "paradox of blackmail", where A threatens to do something legal unless B does something else which is also legal. The paradox is, how do we define the crime of blackmail in such a case without also criminalising all sorts of perfectly honest and beneficial behaviour, such as threatening a lawsuit unless stolen money is repaid.

So my question is, assuming the Guardian article and Bezos's assertions are accurate, has the National Enquirer committed the crime of blackmail? I'm specifically interested in whether this is a crime under the relevant laws, rather than whether this falls under the dictionary definition of blackmail.

Answer 1

Eugene Volokh has now opined on exactly this question. He says that legitimate threats need to have a "nexus" between the threat and the required deed. Hence threatening a lawsuit to recover money is not blackmail because the lawsuit is about the money. However in this case there does not seem to be a nexus between the photographs that the National Enquirer is threatening to publish and the investigation that it wants terminated. Hence the National Enquirer is probably guilty of violating 18 U.S.C. § 875(d):

Whoever, with intent to extort from any person ... any money or other thing of value, transmits in interstate ... commerce any communication containing any threat to injure the property or reputation of the addressee or of another ... shall be fined under this title or imprisoned not more than two years, or both.

Volokh also notes that the NE has probably also violated Washington state law, as that covers acts against people and property in Washington even when committed by an out-of-state actor.