The David Letterman case has caused a great deal of discussion about blackmail, and whether the alleged circumstances of his particular case should constitute a crime. But it raises another important issue for me. I can imagine Andy Rooney (of 60 Minutes) saying:
"Do you ever wonder why so many law suits that are settled are designated confidential, secret and sealed?"The answer is that they are frequently the result of blackmail and extortion, which has become an accepted and common practice in our legal system. Here is the way that it works:
A claim is made or a suit is instituted and the parties and their counsel meet in order to discuss settlement. The claimant (the plaintiff) and his or her attorney warn that if the matter goes to trial, the public will learn some very embarrassing details about the defendant. The way to avoid the public airing of these embarrassing moments is to pay money and settle the case. The defendant agrees to the settlement, the amount of which may not only serve to compensate the plaintiff but provide a bonus for secrecy as well. The defendant extracts a promise that the settlement and all facts upon which it is based shall remain secret and confidential. Frequently the court will acquiesce in a request to seal the record. So we not only have blackmail and extortion operating within the system, it frequently receives the unwitting imprimatur of the court.
Is there anything wrong with this picture? I think most of us would agree that if a case is settled so as to prevent the disclosure of purely private matters, no harm -- no foul. But what of the priest who has molested children, the company that is continuing to sell a dangerous and defective product, the doctor who is guilty of repeated malpractice, the serial sex harasser or any other matters in which the public or other similar claimants have a vital interest? Thus, not only have we condoned and allowed extortion and blackmail, but in the process, we may have deprived the public of essential information.