Even the man arrested for sending harassing e-mails to state Rep. Rhonda Fields acknowledged to Denver police that they were racist, offensive and worthy of an apology.

But now police and prosecutors must determine whether Franklin Glenn Sain was exercising his free speech or committing a crime.

That line is sometimes blurry, experts say. And whether it was crossed could depend on the ability to link Sain not only to the e-mails, but to an unsigned letter that read: "I keep my 30 Round Magazines There Will Be Blood! I'm Coming For You!" according to a police affidavit.

Sain, 42, was arrested on Friday on suspicion of harassing Fields, D-Aurora, and trying to influence a public servant, a felony that would cost Sain his ability to possess guns if he were convicted. Sain has not yet been formally charged with the crimes. His first court appearance is scheduled for March 8.

Sain told Denver police he was frustrated by Fields' efforts to tighten state gun laws when he sent her six e-mails and left similar voice mails between Feb. 13 and 15. The unsigned letter was postmarked during the same period and included racial and sexual epithets that were identical to those in the e-mails, leading detectives to believe Sain was also behind the letter, the affidavit said.


"The most clearly illegal threat is the unsigned letter saying that the speaker has specific kinds of guns, and is coming for her, and there will be blood. There is no free speech to that," said Scott Moss, an associate law professor at the University of Colorado. "What we'll have to see in court is the evidence that the unsigned writing is his."

When questioned by police, Sain expressed regret for using racist and sexist terms in the e-mails and voice mail.

"I don't use that word when I talk. I'm not a racist. Those emails are not who I am," he said, according to the affidavit.

Sain's attorney Siddhartha Rathod declined to comment further on Wednesday but has said his client's words were protected political speech.

Fields' attorney, Craig Silverman, said in a statement that "no Coloradan need endure terroristic threats of the kind made by this accused felon."

Karen Steinhauser, former chief deputy district attorney in Denver who now has a criminal-defense practice, said state law defines the border between free speech and a crime.

"You can give your opinions about how you feel about a person, about legislation, about whatever the issue is, but when those statements rise to the level where there is actually a threat to physically harm someone, that's where the line gets crossed," Steinhauser said.

But the line isn't always clear. Impacting it are factors such as the plausibility of a person enacting the threat, the means through which it was delivered and other context.

"I would look at everything — the volume, the tone, the nature of the communication," said Boulder County District Attorney Stan Garnett.

That Fields is an elected official and not a private citizen might also raise the bar for criminality, experts said. Lawmakers often forward questionable e-mails to state troopers for review, said Trooper Nate Reid, a Colorado State Patrol spokesman.

A trooper stationed in the Capitol evaluates each to determine whether it is a legitimate threat or simply the words of a disgruntled constituent. In some cases, the trooper consults a Denver police detective. Sain's e-mails are the first in recent memory to result in an arrest, Reid said.

"When you become a public official, you thrust yourself into public debate," said Denver defense attorney Jesse D. Hall, who often handles cases of attempting to influence a public official. "You're supposed to have tougher skin than if you're a random citizen."

Harder for prosecutors, Hall said, could be proving the felony, that Sain tried to influence a public official. Prosecutors could need a witness, or circumstantial evidence or to find something in Sain's background to prove his intent.

"The issue is trying to prove what was in someone's head. What the prosecutor is going to have to prove is that in writing these letters, the intent was to try to get the legislator to change her stance on a particular law," Steinhauser said. "The defense could be, 'Well, I was just angry, I was just spouting off.'"
