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Court Tosses Conviction Over Emailed Threats

OKLAHOMA CITY (CN) - The Oklahoma Court of Criminal Appeals reversed the blackmail conviction of a man who sent a threatening email to a state senator, citing the man's right to free speech in a political arena.

In March 2013, self-proclaimed Sooner Tea Party member Albert Gerhart sent an e-mail to State Senator Cliff Branan threatening to uncover allegedly unsavory information about the senator's past, as well as that of his family, if Branan didn't ensure that an energy bill was heard before the state senate.

Branan is chairman of the state senate's energy committee.

The e-mail stated, "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."

Branan turned the email over to police, and Gerhart was later convicted on charges of blackmail and violation of the Computer Crimes Act.

Gerhart claimed on appeal that his e-mail was constitutionally protected speech, and that the state didn't meet the criteria for blackmail in its conviction.

The U.S. Supreme Court has held that certain categories of speech are beyond constitutional protection, such as advocacy intended to incite lawless action, obscenity, defamation, speech integral to criminal conduct, "fighting words", child porn, true threats and speech presenting a threat the government has the power to prevent.

The state claimed blackmail isn't a protected form of speech, and that Gerhart's e-mail fell within the parameters of speech integral to criminal conduct. But his blackmail conviction was reversed as "premature," as his e-mail didn't accuse or threaten to accuse anyone of a specific crime and his word choice was simply too vague.

"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," wrote Justice Gary Lumpkin. "The email was sent with the intent to convince the Senator to change his mind on a political issue" and is therefore considered "political hyperbole."

Gerhart had been seen as "somewhat of an irritant to Oklahoma lawmakers" in the past, but "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," Lumpkin wrote.

In addition, "Appellant's crude and uncivil method was not one which would engender support for his cause but the First Amendment protects his right to be crude," Lumpkin added.


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