When does political speech cross the line into something more sinister?
For Al Gerhart, the Sooner Tea Party co-founder charged Tuesday with blackmailing a state senator via email, the answer may soon rest in the hands of a judge or jury. And the distinction could be razor thin, some legal observers say.
“It’s one of the most challenging cases I’ve ever seen to figure out if this is free speech or a crime,” said Brady Henderson, legal director of the American Civil Liberties Union of Oklahoma. “It really does walk that line.”
“There are definitely threats and intimidation in the email,” Henderson said. “But that’s not the only way to interpret them. What happens in court may come down to how people interpret what was said. It’s going to come down to some pretty narrow distinctions.”
On Tuesday, Oklahoma County District Attorney David Prater charged Gerhart, 54, with blackmail and violating the Oklahoma Computer Crimes Act. Both counts are felonies. The charges are the result of a March 26 email Gerhart sent to Sen. Cliff Branan. In the email, Gerhart urged that a committee Branan chaired pass a bill that would have prohibited Oklahoma communities from adopting provisions of a United Nations plan for sustainable development.
Gerhart, an Oklahoma City carpenter, wrote, “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.”
Branan turned the email over to the Oklahoma Highway Patrol.
At a news conference last week, Gerhart denied any wrongdoing and said his email was constitutionally protected free speech.
“Political pain and embarrassment will be necessary if the citizens expect to regain control of this Senate down here from the state chamber of commerce and special interests,” he said. “The time for ‘nice’ behavior is over with.”
He suggested that the senator may have reacted the way he did to the email because he was worried the tea party would uncover infidelity, an accusation Branan has since denied.
Law adopted in 1974
If convicted, Gerhart faces a maximum of five years in jail and a $10,000 fine on the blackmail charge and five years and a $5,000 fine on the computer charge. As of late Thursday he had not been arrested or surrendered.
Several members of the legal community said they could not recall a similar extortion prosecution involving a public official since Oklahoma adopted the blackmail law in 1974.
Courts traditionally give wide leeway to political speech to allow for a robust exchange of views, said Gene Policinski, senior vice president and executive director of the First Amendment Center at Vanderbilt University.
“That often permits hyperbole, language that on an individual basis you and I might find coarse, base or offensive,” Policinski said. “You only need look back to the time of our forefathers when being called a syphilitic bastard was a good day if that’s all they said. Things that you and I on a personal level might recoil from may, in fact, be protected speech.”
One thing Policinski said may give the court pause is the language involving Branan’s family, given that his family members aren’t in the public arena.
Private, public information
University of Oklahoma law professor Rick Tepker said Gerhart is well within his rights to disclose public facts about public behavior. The question is whether in doing so he threatened to do something illegal.
“Is he just saying we’re going to fight you tooth and nail and find everything you’ve done in office? I’d be hard pressed to find that was blackmail,” Tepker said.
The legal question will surround the more private information Gerhart referenced, which has more of the quality of blackmail, Tepker said.
“The government will lose unless they can prove the speech is unprotected,” he said. “The question is going to be whether the language used by the speaker is a threat.”
On that subject, Gerhart was “a little ambiguous in what was being threatened,” Tepker said.
“It will be a morass,” he said of the case.
Joseph Thai, another OU law professor, expects it will be appealed regardless of the outcome in district court.
“This is not an open-and-shut case,” Thai said.
The gray area comes when someone demands that a politician do something or risk disclosure of damaging or harmful information, Thai said. If the damaging information is purely personal, Thai believes the blackmail statute could be applied. But when the information is on a matter of public concern, the prosecution’s case becomes harder.
“It could be argued that the individual was engaging in constitutionally protected political speech,” Thai said.
On the other hand, the modern First Amendment rests on the bedrock principle of promoting robust public discussion on matters of public concern, Thai said.
The bottom line, Thai said, is whether criminalizing Gerhart’s behavior will promote a healthier democracy and more robust debate about public officials or, in fact, will suppress such speech because officials might be more likely to bury any such information.
“It is not clear that extending First Amendment protection to threats to disclose politically embarrassing information about a public official promotes that objective rather than undermining it,” he said.
No other case squarely on that point has been decided by the Supreme Court in modern times, said Thai, who previously worked as a law clerk for Supreme Court Justices John Paul Stevens and Byron White.
“In a way, it’s an open question,” Thai said. “There’s potential for a lot of debate.”