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.”