On Wednesday the Oklahoma Court of Criminal Appeals overturned the felony blackmail conviction for Sooner Tea Party co-founder Al Gerhart.
The court also reversed a $1,000 fine.
In a 3-2 ruling, the court said a March 26, 2013 email Gerhart sent to then-state Sen. Cliff Branan is protected speech under the First Amendment to the U.S. Constitution.
Branan, Get that bill hard or I will make sure you regret not doing it. I will make you the laughing stock of the Senate if I don’t hear that this bill will be heard and passed. We will dig into your past, yoru [sic] family, your associates and once we start on you there will be no end to it. This is a promise. Al Gerhart Sooner Tea Party
Prosecutors charged Gerhart two weeks later with sending an email intending to intimidate Branan.
The ruling said Gerhart’s email did not urge or compel Branan to violate state law or commit and unlawful intent, nor was that the email’s intent.
“The email was sent with the intent to convince the Senator to change his mind on a political issue,” Vice Presiding Judge Gary Lumpkin wrote for the majority in the decision.
The record does not support a finding that the Senator was being compelled to do anything against his will. The Senator testified that he had no control over whether the bill passed out of committee, although he admitted it was his decision regarding whether the bill would get a hearing in the committee. . . . The record indicates that Appellant [Gerhart] was somewhat of an irritant to Oklahoma lawmakers. However, the Constitution protects the right of the political irritant to contact his elected representative and voice his concerns as much as it protects any citizen’s right to do so.
The Court said Gerhart’s threats to “dig into” Branan’s past weren’t specific enough to constitute blackmail.
Presiding Judge Clancy Smith dissented, saying the email met the statutory requirement for blackmail in Oklahoma, and said it crossed the line from simply being irritating to criminal conduct.
“Gerhart may or may not have been an irritant to Oklahoma lawmakers,” However, in this communication he explicitly threatened on lawmaker, promising to investigate him and his family and expose him to ridicule, if the lawmaker did not ensure a bill was heard and passed,” Smith wrote in her dissent.
Judge Arlene Johnson joined the dissent, and Smith disagreed with the majority’s opinion that the blackmail charge by the state was premature.
The majority holds that a blackmailer’s threat must specifically state exactly what facts or information he has and intends to use, and how he will use it, in exposing his victim to disgrace or ridicule. Nothing in the statutory language remotely supports a requirement for this level of specificity. The majority has, for no apparent reason, unnecessarily added this element to the crime. In so doing, the majority fails in our duty to construe the statutory language according to its plain and ordinary meaning, giving effect to the intention of the Legislature as expressed by the words actually included in the statute.
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