Gerhart v. State

• Decision Date: 07 October 2015
• Docket Number: No. F–2014–726.,F–2014–726.
• Citation: 360 P.3d 1194,2015 OK CR 12
• Parties: Albert Gustava GERHART, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

360 P.3d 1194

2015 OK CR 12

Albert Gustava GERHART, Appellant,

v.STATE of Oklahoma, Appellee.

No. F–2014–726.

Court of Criminal Appeals of Oklahoma.

Oct. 7, 2015.

Kevin D. Adams, Tulsa, OK, Counsel for Defendant/Appellant at trial and appeal.

Stephen Lee, Tulsa, OK, Counsel for Defendant at trial.

David Prater, District Attorney, Scott Rowland, Robert McClatchie, Assistant District Attorneys, Oklahoma City, OK, Counsel for the State at trial.

E. Scott Pruitt, Attorney General of Oklahoma, Theodore M. Peeper, Assistant Attorney General, Oklahoma City, OK, Counsel for the State on appeal.

OPINION

LUMPKIN, Vice Presiding Judge.

¶ 1 Appellant Albert Gustava Gerhart was tried by jury and convicted of Blackmail (Count I) (21 O.S.2011, § 1488), and Violation of the Computer Crimes Act (Count II) (21 O.S.2011, § 1958), in Case No. CF–2013–2179, in the District Court of Oklahoma County. The jury recommended as punishment a fine of $1,000.00 in Count I and the trial court sentenced accordingly. No fine was recommended in Count II. It is from this judgment and sentence that Appellant appeals.

¶ 2 On March 26, 2013, Appellant sent the following email to the office of State Senator Cliff Branan:

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, your [sic] family, your associates and once we start on you there will be no end to it.

This is a promise.

Al Gerhart

Sooner Tea Party.

¶ 3 The Senator's executive assistant discovered the email the next day when checking the morning correspondence and promptly showed it to the Senator. He put a copy of the email in his pocket and over the next few days contacted law enforcement. On April 9, 2013, the State filed charges of Blackmail and Violation of the Computer Crimes Act against Appellant.

¶ 4 In his sole proposition of error on appeal, Appellant asserts that the email sent to the Senator is constitutionally protected speech and therefore cannot serve as a basis for the criminal convictions. Appellant is not asking this Court to find the blackmail statute, 21 O.S.2011, § 1488, unconstitutional; rather he argues the statute cannot be applied to him as the email is constitutionally protected speech. The State responds that the email met the elements of blackmail, which is not constitutionally protected speech, and may serve as the basis of a criminal conviction.

¶ 5 This Court has not previously had the opportunity to construe § 1488. However, for the purposes of this opinion, we presume it is constitutional. SeeBoard of Trustees of State University of N.Y. v. Fox,492 U.S. 469, 484–485, 109 S.Ct. 3028, 3037, 106 L.Ed.2d 388 (1989)(“[i]t is not the usual judicial practice, however, nor do we consider it generally desirable, to proceed to an overbreadth issue unnecessarily—that is, before it is determined that the statute would be valid as applied”); Murphy v. State,2012 OK CR 8, ¶ 32, 281 P.3d 1283, 1292(we presume state statutes are constitutional). See alsoUnited States v. Grace,461 U.S. 171, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983); Watts v. United States,394 U.S. 705, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969)(both cases address constitutionality of a federal statute as applied to the defendant). As Justice Opala explained in his dissenting opinion in Tulsa Co. F.O.P., Lodge No. 188 v. Board of County Commissioners of Tulsa Co.,2000 OK 2, 995 P.2d 1124:

An “as applied” challenge seeks relief from a specific application of a facially valid statuteto an individual (or class of individuals) who is under an allegedly impermissible legal restraint or disability as a result of the manner (or circumstances) in which the statute has been employed. The attack launched under this rubric contemplates a factual analysisof the case to determine the circumstances in which the enactment has been utilized and to consider whether in those particular circumstances the employment deprives anyone to whom it was applied of a protected right. While a law found deficient in its application to one plaintiff cannot be enforced against that person, it would escape the judiciary's general condemnation of invalidity.

2000 OK 2, ¶ 10, 995 P.2d at 1136(Opala, J., dissenting) (footnotes omitted) (emphasis in original).

¶ 6 A statute which criminalizes speech must be interpreted within the parameters of the First Amendment. The First Amendment provides that “Congress shall make no law ... abridging the freedom of speech.” U.S. Const.amend. 1. “[A]s a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” United States v. Alvarez,567 U.S. ––––, 132 S.Ct. 2537, 2543, 183 L.Ed.2d 574 (2012)(quoting Ashcroft v. American Civil Liberties Union,535 U.S. 564, 573, 122 S.Ct. 1700, 1707, 152 L.Ed.2d 771 (2002)). See also United States v. Stevens,559 U.S. 460, 468, 130 S.Ct. 1577, 1584, 176 L.Ed.2d 435 (2010). The Oklahoma Constitution also provides protection for speech. “Every person may freely speak, write, or publish sentiments on all subjects; being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech of the press.” Okla. Const. art. II, § 22.

¶ 7 The United States Supreme Court has held that certain categories of speech do not receive constitutional protection. Alvarez,132 S.Ct. at 2544. “[C]ontent-based restrictions on speech have been permitted, as a general matter, only when confined to the few ‘historic and traditional categories [of expression] long familiar to the bar’ ”. Id.Restrictions on the content of speech have been upheld in the few limited areas which are “of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” R.A.V. v. City of St. Paul, Minn.,505 U.S. 377, 383, 112 S.Ct. 2538, 2543, 120 L.Ed.2d 305 (1992).

These traditional limitations include advocacy intended, and likely, to incite imminent lawless action; obscenity; defamation; speech integral to criminal conduct; “so-called ‘fighting words' ”; child pornography; true threats; and speech presenting some grave and imminent threat the government has the power to prevent. Alvarez,132 S.Ct. at 2544.

¶ 8 The State asserts the email is “speech integral to criminal conduct” and thus not constitutionally protected. In Giboney v. Empire Storage & Ice Co.,336 U.S. 490, 69 S.Ct. 684, 93 L.Ed. 834 (1949)relied upon by the State, members and officers of the Ice and Coal Drivers and Handlers Local Union No. 953, affiliated with the American Federation of Labor engaged in efforts to force Empire Storage and Ice Co., (hereafter Empire) and other nonunion retail ice peddlers to sell ice only to union peddlers. Empire refused to cooperate. Its place of business was then picketed by union members. Compelling Empire to sell only to union peddlers was a violation of a Missouri state statute. A subsequent lawsuit resulted in the issuance of an injunction against the Union's picketing in and around Empire's place of business. On appeal, the Supreme Court found the picketing and other activities by the Union, “constituted a single and integrated course of conduct, which was in violation of Missouri's valid law.” Id.at 498, 69 S.Ct. at 688. The Supreme Court stated: “[i]t rarely has been suggested that the constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute. We reject the contention now.” Id.at 498, 69 S.Ct. at 688–689. The Court explained, “[w]e think the circumstances here and the reasons advanced by the Missouri courts justify restraint of the picketing which was done in violation of Missouri's valid law for the sole immediate purpose of continuing a violation of law.” Id.at 501, 69 S.Ct. at 690.

¶ 9 The facts of the present case are distinguishable. 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. The email was sent with the intent to convince the Senator to change his mind on a political issue.

¶ 10 The State further relies on cases from several federal circuits stating that blackmail is not a constitutionally protected form of speech. These cases, Planned Parenthood of Columbia/Willamette, Inc. v. American Coalition of Life Activists,244 F.3d 1007, 1015 (9th Cir.2001)and Smithfield Foods, Inc. v. United Food & Commercial Workers International Union,585 F.Supp.2d 789, 804 (E.D.Va.2008)involve violations of federal statutes much different from our state blackmail statute. Further, these cases and others cited by the State address whether a particular communication constitutes a “true threat.” To fall outside the protections of the First Amendment, a “true threat” must be a threat of violence. Virginia v. Black,538 U.S. 343, 359, 123 S.Ct. 1536, 1548, 155 L.Ed.2d 535 (2003). The case before us does not involve threats of violence.

¶ 11 The communication in this case falls short of the types of speech, i.e.,true threats, speech integral to criminal conduct, etc., which subject the speaker to criminal liability.

¶ 12 While the authorities cited by both Appellant and the State offer helpful insights, the issue before us is resolved by looking to the words of the state statute and their application to the facts of this case.

¶ 13 Title 21 O.S.2011, § 1488provides:

Blackmail is verbally or by written or printed communication and with intent to extort or gain anything of value from another or to compel another to do an act against his or her will:

1. Accusing or threatening to accuse any person of a crime or conduct which would tend to degrade and disgrace the person accused;

2. Exposing or threatening to expose any fact, report or information

...