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Thursday, July 19th, 2018Last Update: Friday, June 1st, 2018 10:41:02 AM

Gerhart Conviction Overturned

By: Constitution Staff

A couple of years ago, Oklahoma Constitution editor Steve Byas wrote in his column, concerning the conviction of Al Gerhart on blackmail charges involving an email sent to then-State Senator Cliff Branan, the following words: "If we truly believe in the concept of liberty, we believe in it for those we do not agree with, those we dislike, and those who are quite unpopular."

Now, the Oklahoma Court of Criminal Appeals, in a 3-2 decision, has overturned the blackmail conviction of Gerhart, opining, "Legislators and other public officials expect to receive vehement, caustic, and sometimes unpleasantly sharp attacks from the citizens they represent. That is the nature of elected public office."

The circumstances which led Oklahoma County District Attorney David Prater to file blackmail charges against Sooner Tea Party leader Al Gerhart involved Gerhart's email demanding Branan hear a bill in his committee. Branan was chairman of a committee of the Senate, and had decided to not hear a bill which proposed to prohibit any local government in the state from adopting or implementing policy recommendations established by the United Nations' Agenda 21 sustainable development action plan. The bill had passed the House of Representatives by a veto-proof margin, but Branan simply refused to even hear the bill in his committee.

This caused Gerhart to send Branan the email which led to blackmail charges. "Get that bill heard or I will make sure you regret not doing it. I will make you the laughingstock of the Senate if I don't hear that this bill be heard and passed. We will dig into your past, your family, your associates, and once we start on you there will be no end to it."

The Court commented, "We find the Appellant's email threatening to investigate the past of the Senator and his family and associates if the Senator did not get the bill a hearing and pass it out of committee as Appellant wished is the kind of vehement, caustic and unpleasantly sharp political speech protected by the First Amendment. Appellant sought to bring about political change. While his method of doing so may be seen as bombastic and extreme with unfortunate and unnecessary references to the Senator's family and associates, this type of political hyperbole does not take the communication out of the protections of the First Amendment. As the Supreme Court said in Alvarez, "[o]ne of the costs of the First Amendment is that it protects the speech we detest as well as the speech we embrace."

Interestingly, the Court compared Gerhart's method not much different "in reality" from "the corporate lobbyist who subtly infers the loss of campaign contributions and support if a bill is not heard or passed. While the finesse is greater, the political pressure is the same."

The decision did not address the constitutionality of the blackmail statute. It simply said that Gerhart had not violated it. "The First Amendment does not require that constituents be rational, reasonable, kind or even polite in their communications with elected representatives," the Court said.

"Appellant's email does not amount to blackmail under Oklahoma law. Rather, it represents legitimate political activity. We must never allow the Oklahoma blackmail statute to become a sword used to suppress mere political speech."

In addressing the blackmail statute, the Court argued, "Appellant's email did not urge or compel the Senator to violate the law or commit an unlawful act, nor was it sent with the intent to compel the Senator to violate the law. The email was sent with the intent to convince the Senator to change his mind on a political issue."

And the Court held that such an email did not constitute blackmail. "Speech does not lose its protected character . . . simply because it may embarrass others or coerce them into action."

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