“For us, it’s the concern we have any time we see a prosecutorial process or law enforcement being used to potentially chill speech that is, in our mind, protected political speech,” said Brady Henderson, legal director of ACLU of Oklahoma.
“It may not be pleasant speech, it may not be speech that is kind, it may not be speech that gets a good political response, but it is protected speech nonetheless.”
The extent to which the organization will assist Gerhart’s defense remains to be seen. Help could range from filing amicus briefs on Gerhart’s behalf to ALCU lawyers joining his defense attorney in court.
In a March 26 email, Gerhart pushed Sen. Cliff Branan, R-Oklahoma City, who chairs the Senate Energy Committee, to schedule a hearing on a measure that sought to block the United Nations’ Agenda 21 sustainability policies.
“Branan, get that bill heard or I will make sure you regret not doing it,” Gerhart wrote. “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.”
The email did not go so far as to threaten violence or something that’s a crime in itself — an important distinction, according to Henderson.
“The idea of digging into somebody’s past to effectively find dirt, to find negative information, isn’t inherently criminal,” he said.
Oklahoma County District Attorney David Prater has charged Gerhart with one felony count of blackmail and one felony count of violating the state’s computer crimes act. A preliminary hearing is set for Sept. 6.
Gerhart told Oklahoma Gazette he wrote the missive in response to another constituent’s email to Branan, urging him to hear the legislation.
He noted that a common political tactic is to “cc,” or carbon copy, a group of constituents in emails to public-office holders in an effort to pressure them to vote a certain way. Gerhart, a blind carbon copy recipient to a previous email to Branan, said he subsequently responded to everyone on the “bcc” list.
“It was not a private communication.
That’s critical,” Gerhart said. “They (prosecutors) took that and twisted it into a blackmail charge.”
Henderson said this brand of “confrontational politics” can appear terse and unpleasant, but it remains a valid part of the spectrum of political speech.
“There are times when people respond more to negative campaign ads than to positive ones, but that doesn’t mean you can effectively ban one and not the other,” he said.
Gerhart’s case might be a “very rare” example of a crime being committed by speech just because of the particular circumstances, said Andrew Spiropoulos, director of the Center for the Study of State Constitutional Law and Government at Oklahoma City University School of Law.
“There’s nothing wrong with telling somebody, ‘Hear this bill or we’ll vote you out of office,’” Spiropoulos said. “The problem here is the accusation is, ‘Hear that bill or I’m going to expose personal information about your family.’ That’s the difference.”
Another challenge in this case, he said, is Oklahoma’s broadly written blackmail law.
“If you have a statute that is substantially overbroad, the court is supposed to strike it down even if the person involved in the case is saying something that’s not protected,” he said.
Gerhart contends the charges are political retribution by Prater because of testimony Gerhart gave last year to the state’s multi-county grand jury. He said he was called to testify before the grand jury because of allegations he had made about the DA in the Sooner Tea Party newsletter.
“We were the group that put Mr. Prater in front of the grand jury,” Gerhart said. “Why did this man take a political email and turn it into a blackmail charge? Because we embarrassed him.”
A grand jury had investigated Prater over accusations regarding campaign finance. In the end, the DA was cleared of any wrongdoing.
County prosecutors deny Gerhart’s claim of retribution.
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