IN THE SUPERIOR COURT OF THE STATE OF ARIZONA

IN AND FOR THE COUNTY OF PIMA

State of Arizona, Case #: CR20193685-001

Appellee, Justice Court Case No. CR-16-612627-MI

vs. Oral Argument Requested

Roy Warden, Appellant The Hon. Howard Fell

APPELLANT’S REPLY BRIEF

Roy Warden, Publisher

Arizona Common Sense
6502 E. Golf Links Road #267
Tucson Arizona 85730
520 551-3496
roywarden@hotmail.com

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 1 REPLY OVERVIEW

2 The State asks this Court to ignore the First Amendment and the rule of law stated
3 in LaFaro V Cahill, 203 Ariz. 482 (App. 2002).

4 The State also asks this Court to ignore the undeniable fact that all of the now crim-
5 inalized political speech took place between two long-time political antagonists in in
6 the Facebook political blog “Pima County Republicans,” a defacto cyberspace-public-
7 park-public-forum, where people voluntarily enter to seek out and to engage in public
8 debate on the issues of the day.

9 What the state refers to as “Appellant’s obsessive harassment1” of Mr. Whitaker is

10 merely their categorization of Appellant’s robust political commentary and condem-
11 nation of Whitaker’s (1) assault and disruption of Appellant’s “Justice for LaVoy Fin-
12 icum” rally held on March 3, 2016, (2) Whitaker’s promulgation of “pro-militia” ide-
13 ology (including a citizen’s constitutional “right” to pick up a gun to overturn oppres-
14 sive government2) offered in a subsequent interview, and (3) Whitaker’s posting of a
15 sexually ambiguous photograph in support of the politically controversial issue of tax-
16 payer-paid transgender surgery for veterans.

17 Question: If all Appellant’s challenged commentary had taken place at a political

18 rally in Armory Park rather than in the Facebook situated political blog Pima County
19 Republicans, would the state still have brought criminal charges under Arizona’s neigh-
20 borhood and workplace anti-harassment statutes?

21

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Appellee’s Response Brief (ARB); 1:21-22.
2
Militia groups believe Tom Jefferson’s stirring words regarding overthrowing oppres-
sive government set forth in the Declaration of Independence were later incorporated
into the Constitution, gives citizens the legal “right,” protected by the rule of law, to
overthrow the U.S. government whenever they find it “oppressive.” Those who so
acted during the Whiskey Rebellion were harshly taught otherwise.
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 1 THE STATE MISSTATES FACTS AND LAW

2 The state intertwines and confuses the dicta expressed by both Judge Simmons and
3 Division II and the actual rulings of both Courts, neither of which enjoined, or found
4 in contempt, Appellant’s political speech offered in Facebook political blogs, and the
5 state does so to circumvent the law stated in LaFaro V Cahill, 203 Ariz. 482 (App.
6 2002).

7 In a classic example of Orwellian doublespeak, the state argues:

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9 “Appellant is free to disagree with Whitaker’s beliefs, but what Ap-

10 pellant is not free to do is target Whitaker online or in person in a
11 harassing manner.” Appellee’s Response brief; 6:9-11
12

13 In other words; Appellant may challenge Whitaker’s viewpoints and beliefs, so long
14 as (1) he doesn’t effectively publish his criticism in every venue Whitaker’s opinions
15 are supported and (2) as long Whitaker doesn’t feel “annoyed” or “harassed.”

16 Moreover; Appellant didn’t “target” Whitaker; Appellant expressed his opinion of

17 Whitaker in Facebook political blogs where members of the public may freely enter
18 (just like they may choose to attend a political rally held in a public park)— or decline
19 to enter—to engage in debate on the issues of the day.
20 On March 4, 2016 Whitaker aggressively confronted Appellant at the Justice for
21 LaVoy Finicum Rally and shouted:
22 “You are a Liar and a False Prophet trying to undermine LaVoy Fini-
23 cum’s cause...You are a Drag Queen Patriot…” (Whitaker at Justice for
24 LaVoy Rally, March 4, 2016.)
25
26 Later that day Whitaker posted the following in the Facebook blog, “Pima County
27 Republicans”: (Exhibit One)
28 “Well, since you wear your megaphone in the same fashion a drag queen
29 wears bird seed, and a prosthetic penis, you’ll say anything, you want.
30 But we all know there is nothing under that bra, except a bony and shriv-
31 eled chest that you’ve thumped into pulp. Your power to reason teeters
32 as if on mangled feet in tight high heels, causing you to screech when you
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 1 turn your ankles. You are a eunuch, but you think your yelling can hide
2 your emasculation like an over-sized strap on.” Whitaker Facebook com-
3 mentary March 4, 2016 (Exhibit One, page Two.)
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5 Truly “harassing” speech does not involve two parties involved in a consensual
6 communicative relationship. In this case both Appellant and Whitaker were (1) long-
7 time political antagonists (2) voluntary members of Pima County Republicans, a cyber-
8 space political free speech forum where members gather daily to discuss the issues of
9 the day, in exactly the same manner in which they gather on a street corner or attend a
10 political rally held in a public park.

11 In “Harassment Law and Free Speech Doctrine”, first published in 1992, Eugene
12 Volokh, warned that harassment statutes could (theoretically) infringe on free political
13 speech and be abused by the state to silence opposition from state critics.

14 In the April 2013 Hastings Law Journal article “Free Speech and Civil Harassment
15 Statutes” Aaron Caplan, citing the exact language of Arizona’s Anti-Harassment Stat-
16 ute and LaFaro v. Cahill, said the following:

17 “Definitions of ‘harassment’ vary widely, but an often-used statutory

18 formula is a “course of conduct directed at a specific person which seri-
19 ously alarms, annoys, or harasses the person, and which serves no legit-
20 imate purpose.”

21 “This Article proposes methods to interpret and apply civil harassment

22 statutes that will avoid most serious free speech problems. The key is to
23 define harassment as unconsented contact or surveillance that endangers
24 safety and privacy. The long-established tort and criminal law concepts
25 of battery, assault, threats, trespass, and intrusion into seclusion lie at the
26 core of this definition. Conduct resembling outrage (intentional infliction
27 of emotional distress) lies at the periphery. Speech about the victim di-
28 rected to other listeners (especially defamation and malicious prosecu-
29 tion) falls outside the definition altogether. By focusing on the nature of
30 the contact between the parties, rather than on the content of one party's
31 allegedly harassing speech, courts will be better able to apply civil har-
32 assment statutes in a constitutionally acceptable manner.” (Caplan, page
33 781)
34

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 1 “In these and many other cases, no-contact orders can forestall violence
2 and protect the safety, privacy, dignity, and autonomy of victims—just as
3 domestic violence orders can. In most circumstances in which they are
4 granted, the orders pose no constitutional problems. But like any tool, they
5 may be misused or overused. The risk of misuse has First Amendment
6 ramifications when courts declare that speech itself is harassing, or issue
7 injunctions against future speech on grounds that it would harass.”
8 (Caplan at 783-84)
9

10 “Speech about the victim directed to other listeners (especially defamation and ma-
11 licious prosecution) falls outside the definition altogether.” (Caplan, 781)

12 Virtually all Appellant’s now criminalized speech was directed to “other listeners,”
13 to the readership of Pima County Republicans.

14 “But like any tool, they may be misused or overused. The risk of misuse has First
15 Amendment ramifications when courts declare that speech itself is harassing…”

16 In this case the state parses words and phrases exchanged between two long-term
17 political antagonists engaged in hot political debate (which often includes name-calling
18 as in Cahill calling LaFaro a “Nazi”, or Warden calling Whitaker a “Red-Necked
19 Thug”)

20 CONCLUSION

21 The Pima County Attorney has clearly overreached and misused A.R.S. §13-2921,
22 a statute properly constructed to protect the public from unconsented to contact.
23 In this case all of the objected to “contact” or speech took place in Pima County
24 Republicans, a cyberspace public forum where parties voluntarily enter to discuss the
25 issues of the day.
26 In their zeal to “win a case at any cost,” the Pima County Attorney asks this Court
27 to violate the express purpose of the First Amendment, and clearly law set forth in
28 LaFaro.

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 1 Moreover: by parsing words, and deciding, on a case-by-case basis, who to prose-
2 cute and what words published in a Facebook political blog are “annoying and harass-
3 ing” and what words are not, the Pima County Attorney, selectively, capriciously, and
4 arbitrarily, places herself in total control of cyberspace political debate, the modern
5 means of political communication.

6 PRAYER
7 THEREFORE; in the interests of justice, Defendant respectfully prays the Court to:

8 1. Dismiss the Pima County Justice Court’s ruling finding Appellant “guilty”
9 of violation of “Harassment” as per A.R.S. 13-2921A1.M;

10 2. Enter a verdict of “Not Guilty”, and

11 3. Issue a strong statement of the law regarding the State’s duty to “seek justice”
12 and not to just “win cases.”

_________________ _________________
Date Roy Warden

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 State of Arizona
County of _____________

On this ____day of ____________________, 2019, before me the un-

dersigned Notary Public, personally appeared Roy Warden, known to me to be
the individual who executed the foregoing instrument and acknowledged the
same to be his free act and deed.

My Commission Expires:____________ _________________

Date Notary

CERTIFICATE OF SERVICE
On September 3, 2019 I filed the above document with the Clerk of the Appellate Court
(Pima County Superior Court), and sent a copy to:

Jason Gannon
Deputy County Attorney
Jason.gannon@pcao.pima.gov

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EXHIBIT ONE

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https://www.facebook.com/groups/PimaCountyRepublicans/permalink/1072366536138513/?comment_id=1073205326054634&re-
ply_comment_id=1073209019

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