The opinion
SMITH, Presiding Judge,
Dissentihg.
¶ 1 I disagree with the majority's conclusion that Gerhart's message was protected speech. In Oklahoma, blackmail includes a written communication, made with the intent to compel another to do an act against his will, which threatens to either (a) accuse the person of conduct fending to degrade and disgrace him, or (b) expose a fact, report or «information which would in any way subject the person to the ridicule or contempt of society. 21 0.8$.2011, § 1488 (emphasis added). Gerhart sent an email to Senator Bra-nan demanding that he ensure a particular bill was heard and passed. If it was not, Gerhart stated, he would make Branan "the laughing stock of the Senate", would "dig into your past, your [sic] family, your associates and onee we start on you there will be no end to it. This is a promise." Gerhart's communication explicitly threatened to dig into the lives of Branan and his family, in order to disgrace him and expose him to ridicule, if Branan did not do what Gerhart wanted.
T2 The majority admits that speech integral to criminal conduct is not protected by the First Amendment. Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498 , 69 S.Ct. 684, 688-89 , 93 L.Ed. 834 (1949). Gerhart's communication clearly meets the statutory requirement for blackmail. In finding that this is not enough to support his conviction, the majority adds two unwritten requirements to § 1488. First, the majority claims that speech is protected under the First Amendment unless it constitutes a true threat of violence. In Virginia v. Black, the United States Supreme Court found that a statute prohibiting cross-burning was permissible because the First Amendment allows States to punish expression which inflicts injury, is likely to provoke a violent reaction, incites a breach of the peace or imminent lawless action, or constitutes a true threat of violence, 538 U.S. 348 , 359, 123 S.Ct. 1536, 1548 , 155 LEd.2d 535 (2003). Nothing in Black suggests that the State cannot prohibit communication as blackmail if the speech does not include an act of unlawful violence, and the Supreme Court has not so held in any other case. To do so, as the majority does, eviscerates the seope and protection afforded by the law against blackmail. The majority also suggests that Gerhart's threat was mere political hyperbole, or political speech, relying on Watts v. United States, 394 U.S. 705 , 89 S.Ct. 1399 , 22 L.Ed.2d 664 (1969). On the contrary, the factual differences between this case and Watts underscore why Gerhart's speech was not protected. Watts told a. small group of people at a rally that, if he had to carry a rifle, the first man in his sights would be the President. Watts, 394 U.S. at 706 , 89 S.Ct. at 1401 , The Supreme Court found that, given the conditional nature of the threat, its audience and the circumstances, this was protected political speech. 894 U.S. at 708, 89 S.Ct. at 1401-1402 . By contrast, Ger-hart's threat was explicit rather than conditional and made directly to his intended vice-tim. - >
*1203 T3 Second, the majority states the blackmail charge was premature; the majority holds that a blackmailer's threat must specifically state exactly what facts or information he has and intends to use, and how he will. use it, in exposing his victim to disgrace or ridicule. Nothing in the statutory language remotely supports. a requirement for this level of specificity. The majority has, for no apparent reason, unnecessarily added this element to the crime. In so doing, the majority fails in our duty to construe the statutory language according to its plain and ordinary meaning, giving effect to the intention of the Legislature as expressed by the words actually included in the statute. State ex rel. Mashburn, 2012 OK CR 14, ¶ 11 , 288 P.3d 247, 250 . The Legislature could have required that a blackmailer specify what information he would use and how, but chose not to do so. Addition of this element has the effect of ensuring that Gerhart (and any other blackmailer who makes a specific threat without disclosing his information or projected course of action) is not guilty of blackmail.
14 Gerhart may or may not have been an irritant to Oklahoma lawmakers,. However, in this communication he explicitly threatened one lawmaker, promising to investigate him and his family and expose him to ridicule, if the lawmaker did not ensure a bill was heard and passed. This conduct crosses the line from "irritant" to criminal conduct. The majority adds unwritten elements to the blackmail statute, then finds that because Gerhart's communication does not meet those elements it is protected speech. In doing so, the majority eviscerates Okla homa's prohibition against blackmail,. I believe this is neither required by First Amendment law nor expresses the will of the Oklahoma legislature. I dissent.
T5 I am authorized to state that Judge Johnson joins in this dissenting opinion.