The State Senator, the Email and Blackmail

After a jury convicted Albert Gustava Gerhart of blackmail in violation of 21 Oklahoma Statutes § 1488 and of computer crimes in violation of 21 Oklahoma Statutes § 1958 in the District Court of Oklahoma County, he appealed.  Gerhart v. State, 2015 WL 5853981 (Oklahoma Court of Criminal Appeals 2015).  The jury “recommended as punishment a fine of $1,000.00 . . . the trial court sentenced accordingly.”  Gerhart v. State, supra. The opinion notes that the judge did not recommend a fine in the case, so it was “from this judgment and sentence that [Gerhart] appeals.”  Gerhart v. State, supra.

The prosecution arose from an email Gerhart sent “to the office of State Senator Cliff Branan” on March 26, 2013.  Gerhart v. State, supra.  This is that email:

Branan, Get that bill heard 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 GerhartSooner Tea Party.

Gerhart v. State, supra.  You can, if you are interested, read more about this email and other facts in this case in the news stories you can find here and here.

As the opinion explains, Senator Branan’s

executive assistant discovered the email the next day when checking the morning correspondence and promptly showed it to the Senator. He put a copy of the email in his pocket and over the next few days contacted law enforcement. On April 9, 2013, the State filed charges of Blackmail and Violation of the Computer Crimes Act against [Gerhart].

Gerhart v. State, supra. 

The Court of Criminal Appeals began its analysis by explaining that Gerhart argues that

the email sent to the Senator is constitutionally protected speech and therefore cannot serve as a basis for the criminal convictions. Appellant is not asking this Court to find the blackmail statute, 21 [Oklahoma Statutes] § 1488, unconstitutional; rather he argues the statute cannot be applied to him as the email is constitutionally protected speech. The State responds that the email met the elements of blackmail, which is not constitutionally protected speech, and may serve as the basis of a criminal conviction.

Gerhart v. State, supra. 

The court went on to explain that it had not

previously had the opportunity to construe § 1488. However, for the purposes of this opinion, we presume it is constitutional. See Board of Trustees of State University of N.Y. v. Fox, 492 U.S. 469 (1989) (`[i]t is not the usual judicial practice, however, nor do we consider it generally desirable, to proceed to an overbreadth issue unnecessarily-that is, before it is determined that the statute would be valid as applied’); Murphy v. State, 281 P.3d 1283 (Oklahoma Court of Criminal Appeals 2012) (we presume state statues are constitutional). See also U.S. v. Grace, 461 U.S. 171 (1983); Watts v. U.S., 394 U.S. 705 (1969) (both address constitutionality of a federal statute as applied to the defendant).
 As Justice Opala explained in his dissenting opinion in Tulsa Co. F.O.P., Lodge No. 188 v. Board of County Commissioners of Tulsa Co., 995 P.2d 1124 (Supreme Court of Oklahoma 2000): [a]n `as applied’ challenge seeks relief from a specific application of a facially valid statute to an individual (or class of individuals) who is under an allegedly impermissible legal restraint or disability as a result of the manner (or circumstances) in which the statute has been employed. The attack launched under this rubric contemplates a factual analysis of the case to determine the circumstances in which the enactment has been utilized and to consider whether in those particular circumstances the employment deprives anyone to whom it was applied of a protected right. While a law found deficient in its application to one plaintiff cannot be enforced against that person, it would escape the judiciary's general condemnation of invalidity. Tulsa Co. F.O.P., Lodge No. 188 v. Board of County Commissioners of Tulsa Co., supra (Opala, J., dissenting) (emphasis in original).

Gerhart v. State, supra. 

The Court of Appeals then noted that a statute that criminalizes speech must be interpreted

within the parameters of the First Amendment. The First Amendment provides that `Congress shall make no law . . . abridging the freedom of speech.’ U.S. Const. amend. 1. `[A]s a general matter, the First Amendment means government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.’ U.S. v. Alvarez, 132 S.Ct. 2537 (2012) (quoting Ashcroft v. American Civil Liberties Union, 535 U.S. 564 (2002)). See also U.S. v. Stevens, 559 U.S. 460 (2010). The Oklahoma Constitution also provides protection for speech. `Every person may freely speak, write, or publish sentiments on all subjects; being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech of the press.’ Okla. Const. art. II, § 22. The United States Supreme Court has held that certain categories of speech do not receive constitutional protection. U.S. v. Alvarez, supra. `[C]ontent-based restrictions on speech have been permitted, as a general matter, only when confined to the few “historic and traditional categories [of expression] long familiar to the bar”’ U.S. v. Alvarez, supra. Restrictions on the content of speech have been upheld in the few limited areas which are `of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.’  R.A.V. v. City of St. Paul, Minn., 505 U.S. 377(1992). These traditional limitations include advocacy intended, and likely, to incite imminent lawless action; obscenity; defamation; speech integral to criminal conduct; `so-called “fighting words”’; child pornography; true threats; and speech presenting some grave and imminent threat the government has the power to prevent. U.S. v. Alvarez, supra.

Gerhart v. State, supra. 

The court  then explained that the prosecution claimed the email at issue in this case

is `speech integral to criminal conduct’ and thus not constitutionally protected. In Giboney v. Empire Storage & Ice Co., 336 U.S. 490 (1949) relied upon by the State, members and officers of the Ice and Coal Drivers and Handlers Local Union No. 953, affiliated with the American Federation of Labor engaged in efforts to force Empire Storage and Ice Co., (hereafter Empire) and other nonunion retail ice peddlers to sell ice only to union peddlers. Empire refused to cooperate. Its place of business was then picketed by union members. Compelling Empire to sell only to union peddlers was a violation of a Missouri state statute. A subsequent lawsuit resulted in the issuance of an injunction against the Union's picketing in and around Empire's place of business.
On appeal, the Supreme Court found the picketing and other activities by the Union, “constituted a single and integrated course of conduct, which was in violation of Missouri's valid law.” Id. at 498, 69 S.Ct. at 688. The Supreme Court stated: `[i]t rarely has been suggested that the constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute. We reject the contention now.’ Id. at 498, 69 S.Ct. at 688–689. The Court explained, `[w]e think the circumstances here and the reasons advanced by the Missouri courts justify restraint of the picketing which was done in violation of Missouri's valid law for the sole immediate purpose of continuing a violation of law.’ Id. at 501. The facts of the present case are distinguishable. [Gerhart’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.

Gerhart v. State, supra. 

The Court of Appeals then took up the issue as to whether the Oklahoma blackmail statute applied to the facts in this case, noting that Title 21 OklahomaStatutes § 1488 provides:

Blackmail is verbally or by written or printed communication and with intent to extort or gain anything of value from another or to compel another to do an act against his or her will:1. Accusing or threatening to accuse any person of a crime or conduct which would tend to degrade and disgrace the person accused;2. Exposing or threatening to expose any fact, report or information concerning any person which would in any way subject such person to the ridicule or contempt of society; or3. Threatening to report a person as being illegally present in the United States, and is coupled with the threat that such accusation or exposure will be communicated to a third person or persons unless the person threatened or some other person pays or delivers to the accuser or some other person something of value or does some act against his or her will. Blackmail is a felony punishable by imprisonment in the State Penitentiary for not to exceed five (5) years or fine not to exceed Ten Thousand Dollars ($10,000.00) or by both such imprisonment and fine.

Gerhart v. State, supra. 

The court began its analysis of the nature of the email at issue here by analyzing the extent to which the language of the above statute applied to the facts in this case, noting, first, that the communication here was an

electronic message sent to the Senator telling him to have the bill heard in the legislative committee and ensure the bill was passed out of committee. Senator Branan testified that as Chairman of the Senate Energy Committee it was his responsibility to determine which assigned bills would get a hearing before the committee. The Senator said he `wasn't inclined to hear the subject matter’ but he had no control over whether a bill was passed out of committee. The State argues the Senator was being forced to do something against his will, i.e., grant the bill a hearing in the committee and get it passed out of committee. A claim of coercion does not remove the email from the reach of the First Amendment. Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971) (organization's distribution of leaflets which threatened more leaflets if realtor did not change his practices held to be a form of communication protected by the First Amendment). `Speech does not lose its protected character . . .  simply because it may embarrass others or coerce them into action.’ NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982) (nonviolent boycott of area merchants, including attempts to persuade others to join boycott through social pressure and the threat of social ostracism, held to be entitled to the protections of the First Amendment). Viewing [Gerhart’s] communication in the context in which it was sent, the political arena, we find any claim of coercion fails. The record does not support a finding that the Senator was being compelled to do anything against his will. The Senator testified 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. However, the Senator explained that the Legislature was in the second week of three weeks of committee hearings and while he was inclined not to give the bill a hearing because it contained language similar to other bills he had previously elected not to grant hearings, he had not made a `final, final decision on that particular piece of legislation.’

Gerhart v. State, supra. 

The court also pointed out that the circumstances surrounding the communication at issue

indicate the email was sent with the intent to persuade the Senator to change his mind about a proposed piece of legislation for which he had not previously voiced support. This is pure political advocacy available to every citizen. `The First Amendment “was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.”’ Meyer v. Grant, 486 U.S. 414(1988) (quoting Roth v. U.S., 354 U.S. 476 (1957)). The record indicates that [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. See E.R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961) (`[i]n a representative democracy . . . [the] branches of government act on behalf of the people and, to a very large extent, the whole concept of representation depends upon the ability of the people to make their wishes known to their representatives’).

Gerhart v. State, supra. 

The court then noted that the “next three paragraphs” of the Oklahoma blackmail statute

set out three ways in which blackmail can be committed. We are concerned with only the first two alternatives: 1) by accusing or threatening to accuse any person of a crime or conduct which would tend to degrade and disgrace the person accused; and 2) by exposing or threatening to expose any fact, report or information concerning any person which would in any way subject such person to the ridicule or contempt of society.

Gerhart v. State, supra. 

It then analyzed the extent to which those alternatives applied to the facts in this case:

[Gerhart’s] threat to `dig into’ the past of the Senator and his family and associates did not accuse or threaten to accuse the Senator or anyone of a crime. The email did not state that Appellant would expose any specific information which would tend to degrade and disgrace any of the persons listed in the email. The email did not expose or threaten to expose any fact, report or information concerning any of those mentioned in the email which would in any way subject such person to the ridicule or contempt of society. The email simply said the Senator's failure to get the bill a hearing and pass it out of committee would be answered with investigation in the future. The alternative ways of committing blackmail listed in the statute do not extend to [Gerhart’s] conduct in this case. A communication is felonious under the blackmail statute based on what the speaker threatens to do. Here, [he] did not threaten to do any act prohibited by the statute. The blackmail charge in this case was premature. If [Gerhart] had accused or threatened to accuse any of those persons mentioned in the email of a crime, for the purpose of getting a hearing on the bill and its passage out of the committee, then [he] would be guilty of blackmail. If [he] had accused or threatened to accuse any person mentioned in the email of specific and particular conduct which would tend to degrade and disgrace the person accused, for the purpose of getting a hearing and passage of the bill out of committee, then [Gerhart] would be guilty of blackmail. If [he] had exposed or threatened to expose any fact, report or information concerning any person mentioned in the email which would in any way subject such person to the ridicule or contempt of society, for the purpose of getting a hearing and passage of the bill out of committee, then [Gerhart] would be guilty of blackmail. Here, the email did not state that [he] had any such information. . . .

Gerhart v. State, supra.         

And, finally, the Court of Criminal Appeals found that Gerhart’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 [Gerhart] wished is the kind of vehement, caustic and unpleasantly sharp political speech protected by the First Amendment. [He] 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. Though few might find respondent's statements anything but contemptible, his right to make those statements is protected by the Constitution's guarantee of freedom of speech and expression.’

Gerhart v. State, supra. 

The appellate court therefore reversed Gerhart’s conviction and sentence and remanded the case to the trial court judge “with instructions . . . to dismiss the charge.”  Gerhart v. State, supra.