Beruflich Dokumente
Kultur Dokumente
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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.
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1
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).
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.”
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:
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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)
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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;
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 _____________
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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