Careful what you say these days because the government how has a powerful new arrow in their quiver against individuals that threaten to expose corruption or express dissatisfaction with voting records. The jury decision last Wednesday night followed a three day trial on trumped up blackmail charges and ended with the jury splitting the decision by giving a guilty verdict but no jail time and a slap on the wrist fine.
The jury never heard about the corruption that the Sooner Tea Party had reported on against the Oklahoma County D.A. office, nor about the Grand Jury where Al testified against Prater, the Grand Jury that said that it was the “online blog” that forced them to investigate Prater against the wishes of the Attorney General’s lawyers that were advising the Grand Jury.
They didn’t get to hear about the Justice for Sale articles, the JRI scandal where Prater was doing the same thing that he prosecuted Senator Leftwich for doing despite the fact that the April 2nd 2013 press conference was played to the jury…. Or about two thirds of it was played, the part about Prater was chopped out.
Then never got to hear the OSBI interview tapes where Branan said he wasn’t scared of anything that Al would do but he was afraid that Al would stir up “crazies” and they might harm him or his family. Why didn’t the jury hear those tapes? Because the tapes were withheld from the defense lawyers until Saturday night around 7 or 8 pm after the new lawyers discovered that we didn’t have the OSBI interview tapes and demanded that the be turned over.
Yes, we could have delayed the trial but the lawyers were working pro bono and had packed schedules the rest of the year. It was my decision to go forward despite the chicanery from the Oklahoma County District Attorney’s office.
The jury instructions were what lead to the defeat of free speech. There were five elements required”
- That a communication had occurred
- That a threat to expose information had occurred
- That an intent to gain something of value or to compel action had occurred
- That embarrassment or ridicule would occur
- That the action asked was “wrongful”
Everyone agrees that a communication had been sent, a very public email that caused the OSBI agent to admit that “No telling how many people received that email.”
The jury failed to follow #2 of the instructions in that there never was an explicit threat to expose any information nor was any information alluded to in the email. The “threat” was to investigate his background. Then the statement said we would make people laugh at Clifford Branan and the regular readers of this newsletter know that could be a funny picture, a political cartoon, or a thorough examination of the dirt bag’s business, personal, and political life.
The jury was deadlocked for eight hours before a decision was reached and they had numerous questions, all of which were rejected and never answered. One of those questions was a legal definition of “force” and another was the legal definition of “compel”. At first glance they mean the same thing but a dictionary says something else.
forced = to be under threat and to be given no other choice
Compelled = to be drawn inevitably to one conclusion or course of action, although there may be others
So the word force alludes to violence or physical threats being used and compel refers to a sense of obligation or duty, something acting on the mind or spirit that causes someone to do something.
The jurors were onto something here because the Oklahoma blackmail statute is so broadly written that not only a “do this or else I will do that” statement can get you arrested for blackmail, but a statement that basically reminds the politician of his obligation to do the right thing can be considered blackmail.
The last element was whether or not the demand to allow a vote on the legislation was “wrongful”.
However when the jury sent out a question asking if there was an alternative method for the legislation to be heard the court refused to answer the question and admonished them to go back and make a verdict. It was obvious that the jurors were searching for a way to dismiss the prosecutor’s claims that no one has a right to get legislation heard.
The prosecutor made it clear in his closing statements that you and I have a right to “blackmail” a business owner if he sells you a defective product like a toaster. The toaster won’t work; threaten and blackmail all you like over at $9.95 product. Write a letter to the editor, post a bad review online, picket the store and embarrass the company...The prosecutor made it clear that you have the right to “blackmail” if a service provider fails to do their job, send a letter to the better business bureau or an in your corner TV reporter. But the prosecutor expressly prohibited the jury from considering a defective senator as being subject to pressure. The prosecutor’s exact words were “You are allowed to ask or to plead. But you are not allowed to demand.”
That was the part that the jury couldn’t get around, that no one has the “right” to demand anything from a public official. But is that the case? We think not because the 14th Amendment orders states to follow due process or the rule of law. Due process is all about fair process and procedures. A citizen might not like the outcome of any government action but they have the right to be heard and to be protected from arbitrary and unreasonable decisions. At the very least you have the right to find out about the government decision, what the government plans on doing, and have a chance to comment.
Now that we have determined a right to due process we need to ask what is required to ensure we get due process. That is going to depend on how serious the situation is, the amount of harm that might be done to the citizen, the risk of getting it wrong without proper proceedings, and the cost to the government for following the procedure. The Supreme Court has ruled that the primary reason for establishing procedural safeguards is to protect the life, liberty, or property of a person affected by the government’s action and to prevent unjustified decisions. At the least you have the right to a hearing before an impartial arbitrator, to have a lawyer to represent you, to call witnesses, cross examine other witnesses, a final decision in writing that includes the reasoning behind the decision, and an opportunity to further appeal the decision.
Does this apply to state legislators making law?
Absolutely! That is called substantive due process where the Supreme Court can examine why the government acted as they did whether they pass a law or not, if the law denies citizens or a citizen their life, liberty, or property. If the law infringes upon the Bill of Rights then the government will need a compelling interest for the act or legislation and the reasons will be strictly scrutinized for arbitrary or irrational decisions to pass a law or not pass a law.
Second question is if the legislature is bound by the substantive due process law? They are, as are any groups or businesses that are tightly associated with government. If a law or other act of government is legally challenged as a violation of liberty under the Due Process Clause, the claim is subjected to one of two forms of scrutiny, strict scrutiny or rational basis review. The difference is the need to balance the public interest and the appropriate government’s method of enabling that interest against the encroachment against individual rights. If the action or law infringes against a fundamental right, strict scrutiny is applied and the act or law must be very narrowly tailored to achieve that goal. If the act restricts a non fundamental right then the question is asked “is there a legitimate government interest to do this?” Is it good enough but not perfect?
Fundamental rights are about life, liberty, and property, including the right to marry, to raise children, educate them and direct their education and upbringing. Autonomy and privacy are the key words here. Non fundamental rights can be thought of as economic in nature, regulation of businesses or non tenured teachers losing their job. But the Supreme Court listed property as one of the fundamental rights in the Board of Regents vs. Roth (1972)
“The Court has also made clear that the property interests protected by procedural due process extend well beyond actual ownership of real estate, chattels, or money.”
The question is this: Doesn’t a citizen have a fundamental right to their property and doesn’t the 14th Amendment provide a substantive due process right to protecting that property? The answer is yes. Now, if the substantive due process covers both laws and acts of government, is not it a government act to refuse to hear legislation that would protect personal property? Are Oklahoma citizens then assured of the right to have such legislation heard and to comment accordingly? The answer is yes; all U.S. citizens have that right.
So we have a very good reason to appeal besides the overly broad and thus unconstitutional blackmail law. We should be able to use the substantive due process provision of the 14th Amendment to call Senator Branan’s decision to not hear the legislation as arbitrary and irrational, therefore I had every right to raise hell when Branan stole those rights after the bill passing the House on a four to one bipartisan basis.
And imagine if you will, of a legislature where bills concerning life, liberty, or property MUST be given a fair hearing and an up or down vote…..thanks to the 14th Amendment.
Is this not a conservative dream come true? Some lawmakers will squawk about the opposition using the process to bring up votes that won’t pass but are intended on damaging politicians. They want their job made easier and safer.
Reaction to the Verdict
The Red Dirt Report wrote one of the few accurate articles on the outcome of the three day trial and they stuck to good reporting by quoting lawyers that were aware of First Amendment legal precedence instead of quoting political enemies of the Sooner Tea Party.
The Associated Press did just the opposite. Their earlier articles were fair and even though they left out the motive for prosecution by the Oklahoma County D.A.’s office they at least straddled the fence. But their latest article was simply a political hit
piece where only one person did the right thing by pointing out that Al’s loss was everyone’s loss.
It appears that both the Tulsa World and the Oklahoman have chosen not to run the article and I would hope that their decision reflects the obvious bias of the article and the use of political enemies as sources rather than looking for legal experts. The article allegedly quotes “Tea Party leaders” but the people making the have never been part of the Tea Party movement and have generally been hostile to the movement.
“Al has a very hard time working well with others,” said Charlie Meadows, president of the Oklahoma Conservative Political Action Committee. “Al is not effective at all, and it’s because of his confrontational style.”
Oklahoma readers would have gone into fits of laughter after reading that quote and Oklahoma readers will remember the Associated Press articles written last year and this year on the Sooner Tea Party emails being discussed at length in articles about the defeat of the Obama Care state health insurance exchange and the JRI program where David Prater tried to set up a retirement job for outgoing Speaker Kris Steel. Charlie himself will lose credibility because Oklahoma readers following politics will remember the 2012 YouTube video claiming that he and I control the House of Representatives. The truth of course is that we control the House only to the point where they do something very, very, stupid and hand us that power.
Charlie did go on to partially redeem himself at the end with a quote about the chilling effect this decision will have on political speech.
Tim Talley of the Associated Press goes on to quote Gary Jones, another target of the Sooner Tea Party, and a regular reader of our newsletter. Then the notorious Stuart Jolly, former director of Oklahoma Americans for Progress group, an Astroturf “grass roots” group that is lead out of Washington D.C.. Readers will remember Jolley going on the Pat Campbell show in 2011 and running his mouth about the Tea Party only to be slapped down the next day when others spoke out about Jolly’s attempt to highjack the Tea Party movement. Jolley became the butt of jokes after the story of his being used by the movement to damage the Fallin gubernatorial campaign got out.
Another old political enemy of the Tea Party movement, Richard Engle, was quoted in the story.
“The degree to which Al Gerhart has been related to the tea party has been extraordinarily exaggerated,” said Richard Engle, co-founder of OCPAC. “Early on there was some reason to think that he was genuine. People quickly realized that he was not. Nobody controls the tea party.”
Everyone will remember Richard Engle being forced to resign from the OCA in 2010 after charges of lying to fellow board members surfaced during an abortive attempt by the John Birch Society that was intended to strip control from Tea Party and 912 group leaders. The Birchers wanted control of the OCA.
Richard Engle later resigned from the OCPAC leadership team, most likely because of pressure from OCPAC members, after all, who wants a liar representing the group? Engle’s wife continued working for a state agency long after his disgrace and fall, which should cause all of us to question an alleged small government, libertarian, conservative having intimate family members eating out of the public trough.'
Charlie Meadows did partially redeem himself as we mentioned early with the comment below:
“This is a dangerous, dangerous decision,” Meadows said. “Knowledgeable people are going to have to be very careful in how they couch things to lawmakers. It’s such a fine line.”
What makes it sad is that Charlie had a wonderful opportunity to add credibility to his group and instead tarnished it with petty back biting comments surrounding one decent comment.
The AP article’s author did at least quote the Sooner Tea Party leader but also left out all mention of the actual motivation for the Oklahoma County District Attorney to prosecute on such a flimsy excuse. Examples of government corruption passed through political wives was given to the AP reporter but he failed to include the examples or his editors stripped any references out of the article. In fact he became impatient when he was being told about the examples of political wives funneling corruption to their husbands.
Reader comments emailed in:'
My flag is at half-mast today. Because a brave and intelligent man, working for the best interests of all Oklahomans, in an entirely selfless manner, was caught in a system that has grown to be able to bend the court system to facilitate freedom for the guilty (when properly connected) and guilt for the free person who rattles the cages of power with too much affect.
I am thankful for all that you published regarding the corruption in the Tulsa County judicial system.
Knowing the political network and corruption that operates in the Judicial statewide I will be praying for a favorable outcome & vindication for you.
Even though we have not seen eye to eye on every matter. It is your newsletter that has keep many in public service accountable in check & constituents informed.
Online comments on news stories:
I was all set to hate me some Teapublicans…. but if this is what he did alone: ““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 family, your associates and once we start on you there will be no end to it. This is a promise…” /// THAT just seems like bread and butter politics they way it should be? What else is Politics?
what else did he do?
……………………………………………. Oh, well, that was it.
Seriously==I don’t like Conservatives, Republicans, TeaDuds, anyone freely living in Oklahoma or any of the surrounding States, etc==but really, whats wrong with what the Dude Promised? Its what all those A-Holes should be subjected to.
The crime is in NOT DOING what this guy promised.
Thats always the way in Politics. The world is upside down.
RECALL WATERGATE, where the central issue with the Media was the criminality of the act and how undemocratic it was to eavesdrop via bugging on your political competition as they strategized.
Well the GOP was bugged by a leftist group while strategizing, but the Propaganda Outlets don’t care about that, they concentrate on what was said during the meeting.
In like spirit, let’s all concentrate on what this State Senator did to make him blackmail able. Is he a raving pedophile? Serial Killer? What crime is he guilty of, THAT is what we need to focus on.
NO misdirection about the legality of the act, let the Senator prove his innocence!
“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 family, your associates and once we start on you there will be no end to it. This is a promise…”
Really? This is a crime? Come on! I’m a liberal, don’t much like tea party types, but really… OK, here’s the law from the article:
Under Oklahoma law, blackmail can involve a written communication that threatens to expose information about someone “which would in any way subject such person to the ridicule or contempt of society.”
What a crappy law. Suppose they were uncovering true things about the person that subjected them to the ridicule or contempt of society?
I think this guy got railroaded by a bad law. Looks like he was blustering and blowing off steam like any number of political operators.
Um, he threatened to “make [him] the laughing stock of the Senate”. That’s it.
Threatened to make people laugh at him. Didn’t threaten his life, his job, his family, his home, any of that. For this threat he’s charged with a crime? Absurd.
Yes, I see that the OK law says “which would in any way subject such person to the ridicule or contempt of society.” And as I said, that’s a ridiculous reason to charge someone with a crime, for making people laugh at someone. Boo hoo!
Hmm threatening to look into the history of people is considered blackmail?
Based on what was quoted from the email I have to ask, how the hell did this even merit a criminal charge let alone make it all the way to trial?
So if I sent an email saying: make this bill heard or else I'll never vote for you again and I'll tell everyone I know not to vote for you.
Is that blackmail?
What Happens Next?
Blackmail is a very specific crime and there has been many Supreme Court decision on the limits. This isn’t new; only a lying prosecutor and a media and public ignorant of the law allowed it to come to trial. One case from 1989, State vs. Seiger, gave wide latitude to journalists in pursuing stories:
“…a newspaper reporter’s "tell[ing] a public official [that] if the public official votes a certain way, the reporter will divulge that the public official will gain from the public body’s action."
These decisions are correct, because a wide range of speech potentially covered by statutes such as I.C. §§ 35-45-2-1(a)(1), (c)(6) — in the absence of a “nexus” exception — is constitutionally protected:
1. Threatening to keep publicizing and condemning a real estate agent’s practices in order to pressure him into changing those practices is constitutionally protected. Organization for a Better Austin, 402 U.S. at 419.
2. Threatening to keep publicizing and condemning shoppers’ decisions not to comply with a boycott in order to pressure the shoppers into changing their behavior is constitutionally protected. NAACP v. Claiborne Hardware, 458 U.S. at 909-10; see also Eagle Books, Inc. v. Jones, 474 N.E.2d 444, 450 (Ill. Ct. App. 1985) (threats to publicize the identities of pornography buyers were constitutionally protected).
3. A consumer’s “threaten[ing] a vendor that unless he is given a refund for a defective product he will complain to the Better Business Bureau” is constitutionally protected. Pauling, 69 P.3d at 335; Weinstein, 898 P.2d at 515. The same is true when the consumer publicizes his dissatisfaction with plaintiff’s product and implicitly threatens further such publicity unless he gets a refund. E.g., DeGroen v. Mark Toyota-Volvo, Inc., 811 P.2d 443, 446 (Colo. Ct. App. 1991); J.Q. Office Equipment of Omaha, Inc. v. Sullivan, 432 N.W.2d 211, 214 (Neb. 1988).
4. “[A] store owner[’s telling] a customer to pay a delinquent bill or else he will report the customer to a credit reporting agency” is constitutionally protected. Weinstein, 898 P.2d at 515.
5. So is “a mother[’s informing] her former husband that if he does not pay back child support, she will report him to the court where he risks incarceration.” Id.
6. So is saying, “[i]f you do not withdraw this research report …, I will disclose that you falsified the experiment.” Robertson, 649 P.2d at 580 n.13.
7. So is a newspaper reporter’s “tell[ing] a public official [that] if the public official votes a certain way, the reporter will divulge that the public official will gain from the public body’s action.” State v. Steiger, 781 P.2d 616, 621 (Ariz. Ct. App. 1989); City of Seattle, 856 P.2d at 1120 (noting that a provision much like §§ 35-45-2-1(a)(1), (c)(6) could unconstitutionally “impinge on freedom of the press”).
8. So is a citizen’s “protest[ing] a perceived unlawful arrest by threatening to write a letter to the editor of the local newspaper.” Chaffee v. Roger, 311 F. Supp. 2d 962, 967 (D. Nev. 2004).
9. So is a citizen’s threatening to continue picketing a store until it stops selling a particular product, such as pornography. Eagle Books, 474 N.E.2d at 450.
The lawyers on the team have been Kevin Adams, Gary Richardson, and Steven Lee, all from the Tulsa area, and they are lining up appellate lawyers to help out. There is no doubt that they did everything in their power to win the case and did an excellent job defending. Not their fault that previously the court had decided to exclude so much evidence. The lawyers are excited about the prospect of appealing the verdict and overturning the blackmail law as unconstitutional and if that happens, no re trial, I am cleared of wrong doing. The Sooner Tea Party was asked to deliver a message to our newsletter readers from the lawyers:
“You can tell folks in your newsletter that your lawyers will appeal the case all the way to the Supreme Court if they have to”
The legal work will be done mostly pro bono because this such an important case for all Oklahomans but we will need money for court transcripts, filing fees, and travel costs when we take the case past the Oklahoma Court of Criminal Appeals. So we need donations and if we can get the court transcript before the June primary we get to use Branan’s testimony against his sorry butt in the election. We need those donations as quickly as we can get them to make full use of the trial transcript.
So please help by donating. There is a PayPal link at the top of the newsletter or you can call in your credit card info or mail a check. Every penny will go into the Free Speech Defense Fund and be used very carefully.
What else do we do?
We politically stomp Senator Clifford B. Branan the Third into the political mud that we found him in by educating the voters about his character and his race for Corporation Commissioner. The facts of this entire story should put a mark of shame on him on the internet that will never, ever, go away.
We do that using his own words uttered in the OSBI interviews and during his testimony at the trial.
We show the world that he doesn’t read emails, won’t return phone calls, and will not meet with Oklahoma citizens unless they are on “the list”, as his secretary testified.
We show the world that he is an elitist pig and a bigot that listens to those of his “class” and damn the little people in the world.
A good start is this website that we made using comments from his OSBI interview and his testimony at the trial.
But to do this we need your help. So please donate and volunteer to help make signs in the coming weeks and to help scatter the signs across this great state.
We go back to business next week in our newsletter. We have some great stories coming up, a good one on Rep. Sky McNeil, a follow up story about Rep. Colby Schwartz, and we are going to have to start pushing the Attorney General’s office to release the Freedom of Information request on that ghost employee case that was killed by former A.G. Drew Edmondson. Might have to get some help from the ACLU to pry the info out of their hands because it has been quite a while since we asked for the information.