California Proposition 8 Supporters Seeking "Money by Threat" From Supporters of Marriage Equality : Is It Extortion?

Senior employees and/or representatives of "ProtectMarriage.com" - the leading force behind California Proposition 8, have threatened those who have contributed against that Proposition: give a comparable amount to us, or we'll publicize your opposition to traditional marriage.

The threats were contained in certified letters sent by the Yes on 8 campaign to significant business-related contributors against Prop 8, and contained the following language:

Make a donation of a like amount to ProtectMarriage.com which will help us correct this error. Were you to elect not to donate comparably, it would be a clear indication that you are in opposition to traditional marriage. ... The names of any companies and organizations that choose not to donate in like manner to ProtectMarriage.com but have given to Equality California will be published.

According to an AP article in the San Francisco Chronicle, the letter was signed by four members of the pro-Prop. 8 group's executive committee:

campaign chairman Ron Prentice; Edward Dolejsi, executive director of the California Catholic Conference; Mark Jansson, a member of The Church of Jesus Christ of Latter-day Saints; and Andrew Pugno, the lawyer for ProtectMarriage.com. A donation form was attached.

One of the threatening letters was sent to San Diego businessman Jim Abbott, owner of a real estate company and a member of Equality California's board of directors. Abbott, who married his same sex partner this past August, had contributed $10,000 towards the underwriting of a San Diego-area event to raise funds for the campaign against Prop 8.

Sonya Eddings Brown, a ProtectMarriage.com spokeswoman, estimated that 36 companies were targeted for the letter and said those that do not respond with a contribution would be highlighted in a press release and on the campaign Web site.

Several websites have referred to the acts of ProtectMarriage.com in sending their threatening letter as "blackmail." In fact, the potential crime involved, if any, would appear to be extortion.

California Penal Code section 518 defines extortion:

Extortion is the obtaining of property from another, with his consent... induced by a wrongful use of force or fear....

To constitute "fear" sufficient for a finding of extortion, a jury must find a threat to do one of the following:

1. To do an unlawful injury to the person or property of the individual threatened or of a third person; or,

2. (To accuse of a crime)...; or,

3. To expose, or impute to him or them any deformity, disgrace or crime; or

4. To expose any secret affecting him or them.

(Penal Code section 519.)

Sending a letter "expressing or implying" any threat set forth in Section 519 may expose the person sending the letter to the same penalties as if money were actually obtained through such threat. (Penal Code sec. 523.) Other attempts to extort may be punished as a misdemeanor.

The key issue regarding potential criminal liability for extortion here is whether the threats made by the individuals constitute the "wrongful use of... fear." To determine that, a prosecutor will need to determine whether the threatened acts fall within the acts prohibited by Penal Code sec. 519.

Specifically, did the letter's authors threaten unlawful injury to property (category one?) I'm getting a bit out of my comfort area on this, but many acts of boycotting or blacklisting of a business can be legal, while threatening those acts unless the business pays money may cross the line to illegality. The prospective prosecutor will want to determine: was this threat made as part of a criminal or racketeering enterprise? For a wrongful purpose?

If not within category one of Penal Code sec. 519, do the threatening acts of the Yes on 8 forces constitute a threat to expose or impute a "disgrace?" While those making the contributions toward the defeat of Prop. 8 would likely not find their position on marriage equality to be disgraceful, the proponents of that proposition appear to hold that belief, and would apparently be spreading that information to others who would find the acts of the Prop. 8 opponents to be "disgraceful." Further, to claim that opponents of Prop. 8 who fail to contribute to the Yes on 8 campaign are "in opposition to traditional marriage" could be found to expose to or impute a "disgrace", and a cause of action for extortion may stand.

Category four "expose any secret" would not seem to apply, as significant campaign contributions are not secret, but are in fact public record. Publicizing information which is on the public record would not likely be the basis for a prosecution for extortion.

While the acts of the proponents of Proposition 8 were clearly outrageous, and apparently made with the intent to cause fear of loss of business to those to whom the letter was addressed, they may or may not fit within the legal definition of extortion.

Caution ought be exercised in using terms such as "extortion" or "blackmail", lest one be facing a possible defamation action for accusing another of a crime. Definitely something best to be avoided.

By the way, if the elements of extortion can be proven against the Prop. 8 supporters: the penalty for violation of Penal Code section 518, as set forth in section 520, is generally two to four years in state prison.