360 P.3d 1194
Okla. Crim. App.2015Background
- Appellant Albert Gerhart was convicted by jury of Blackmail (Count I) and Violation of the Computer Crimes Act (Count II) in Oklahoma County (CF-2013-2179).
- He sent March 26, 2013 an email to State Senator Cliff Branan urging a bill be heard and passed, threatening investigative action if not.
- The email was discovered the next day; law enforcement agencies were contacted and charges filed April 9, 2013.
- Appellant argued the email was protected First Amendment speech and could not support a criminal conviction.
- The Oklahoma Court of Criminal Appeals presumed § 1488 constitutional for purposes of analysis, but ultimately held it unconstitutional as applied to the email and reversed/dismissed both convictions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Gerhart's email falls within blackmail under § 1488 | Gerhart—speech protected by First Amendment | State—email fits blackmail elements | Constitutional as applied; email not punishable under § 1488; reversed/dismissed |
| Whether applying § 1488 here violates the First Amendment | Speech should be protected; statutes should not chill political advocacy | Blackmail is not protected and may be punished | Statute applied unconstitutionally as applied; convictions reversed/dismissed |
| Whether the Computer Crimes Act conviction depends on § 1488 violation | If § 1488 is invalid, § 1958 cannot stand | Independent basis via computer use | Reversed and dismissed |
| Whether the court should review § 1488 as applied under strict statutory interpretation | Plain meaning supports broad application | Statutory language supports limited application | Statutory language interpreted; as applied, § 1488 invalidated |
Key Cases Cited
- Board of Trustees of State Univ. of N.Y. v. Fox, 492 U.S. 469 (1989) (presumption of constitutionality; as-applied analysis not preferred before valid application)
- Giboney v. Empire Storage & Ice Co., 336 U.S. 490 (1949) (speech as part of conduct may be restrained if it violates law)
- Watts v. United States, 394 U.S. 705 (1969) (political hyperbole generally protected; context matters)
- Virginia v. Black, 538 U.S. 343 (2003) (true threats; limits on intimidation)
- United States v. Alvarez, 132 S. Ct. 2537 (2012) (false statement protection; true threats and categories)
- New York Times Co. v. Sullivan, 376 U.S. 254 (1964) (public figure defamation standards; robust political speech)
- NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982) (protects political speech including social pressures)
- E. R. R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961) (right to petition government; protection of political advocacy)
- Meyer v. Grant, 486 U.S. 414 (1988) (protects political petition and advocacy)
- Garrison v. Louisiana, 379 U.S. 64 (1964) (speech on public issues; First Amendment protection)