- Associated Press - Wednesday, October 7, 2015

OKLAHOMA CITY (AP) - An Oklahoma appeals court overturned the blackmail conviction Wednesday of the co-founder of the Sooner Tea Party, ruling that his email threatening to investigate a Senate committee chairman for blocking a tea party-backed bill was constitutionally protected speech.

In a 3-2 ruling, the Oklahoma Court of Criminal Appeals found the email Al Gerhart sent to former state Sen. Cliff Branan, R-Oklahoma City, was protected under the First Amendment’s guarantee of freedom of speech and expression.

The appeals court also reversed Gerhart’s conviction for violating the state Computer Crimes Act as well as a $1,000 fine he was ordered to pay and instructed the judge who presided over Gerhart’s jury trial last year to dismiss the charges. Gerhart faced up to five years in prison, but jurors who convicted him chose not to impose a prison sentence.

Gerhart, 57, said he felt vindicated.

“I know I’m an irritant,” Gerhart said after the ruling. “I’m a political figure, everybody knows me.”

Oklahoma County First Assistant District Attorney Scott Rowland, who prosecuted the case, said his office respects the court’s decision and will abide by it.

The March 26, 2013, email was sent to Branan as chair of the Senate Energy, Telecommunication and Environment Committee. It urged him to have his committee take up and vote on legislation favored by tea party activists that would prohibit state organizations from following a United Nations plan to help cities and countries become more environmentally sustainable.

“Get the bill heard or I will make sure you regret not doing it,” the email stated. “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 family, your associates, and once we start on you there will be no end to it. This is a promise.”

Branan testified he felt threatened by the tone of the email. Prosecutors alleged the email was an attempt to intimidate Branan and force him to do something he said he was not inclined to do, in violation of the state’s blackmail statute.

Gerhart pleaded not guilty and claimed his brand of “confrontational politics” was protected by the First Amendment.

“The trial should have never been held,” Gerhart said Wednesday. “Coercion in politics is not a crime. The only thing I threatened to do is investigate the guy.”

Writing for the court’s majority, Judge Gary Lumpkin said the email was an attempt by Gerhart to persuade Branan to change his mind about legislation he had not previously supported.

“This is pure political advocacy available to every citizen,” the decision says. The decision says Gerhart’s email “is the kind of vehement, caustic and unpleasantly sharp political speech protected by the First Amendment.”

“While some in the body politic may use crude and offensive methods of stating their political opposition, the crudeness is protected by the U.S. Constitution,” it says.

Presiding Judge Clancy Smith and Judge Arlene Johnson disagreed with the court’s decision in a dissenting opinion in which Clancy wrote Gerhart’s email “explicitly threatened” Branan.

“This conduct crosses the line from ‘irritant’ to criminal conduct,” Smith wrote.

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