IN THE SUPERIOR COURT OF THE STATE OF ARIZONA

IN AND FOR THE COUNTY OF PIMA

Roy Warden Case #:

Appellant,
J Justice Court Case No. CR-16-612627-MI
vs.
Oral Argument Requested

State of Arizona,
Appellee.

APPELLANT OPENING BRIEF

Roy Warden, Publisher

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

1
 STATEMENT OF THE CASE
1. Civil libertarians1, and the Arizona Court of Appeal, have both challenged the use
of civil harassment statutes to (selectively) sanction protected speech.
2. Regarding Appellant’s conviction for violation of A.R.S. §13-2921, Appellant
asks this fundamental question: is the public’s2 right to publish political
commentary on Facebook protected by the rule of law—as stated in LaFaro v
Cahill, 203 Ariz.482 (App. 2003)—or is an individual member of the public
subject to selective criminal prosecution that is arbitrary, capricious, contrary to
the rulings of two higher civil courts, and contrary to the rule of law as stated in
LaFaro, which forbids such prosecution?
3. In LaFaro, the Arizona Appellate Court limited the scope of the Arizona anti-
harassment statutes, and specifically prohibited their application to those engaged
in vigorous political debate.
4. Yet on August 2, 2016 the Pima County Attorney ignored (1) LaFaro (2) several
prior Pima County Superior Court rulings which refused to civilly enjoin, or hold
in contempt, Appellant’s political Facebook postings, and (3) solely on the basis
of Appellant’s political writings posted on Facebook, filed the underlying case,
charging Appellant as follows:
COUNT ONE (HARASSMENT, A CLASS ONE MISDEMEANOR)
“On or about the 17th day of April 2016, Roy Warden with the intent to
harass, anonymously or otherwise communicated or caused a
communication with Cody Whitaker, by verbal, electronic, mechanical,
telegraphic, telephonic or written means in a manner that harasses, to wit:
Facebook postings and messages in violation of A.R.S. §§13-2921 (A)(1)
and (C), 13-707, 13-802, 13-804 and 13-902. [13-2810A2]
COUNT TWO (INTERFERING WITH JUDICIAL PROCEDINGS, A

1
Free Speech and Civil Harassment Orders by Professor Aaron Caplan. Hastings Law
Journal, Vol 64:781 (2012)
2
Appellant is a contentious, multi-decade long political activist, who has criticized Pima
County officials, and members of right-wing militia groups since 2006.

2
 CLASS ONE MISDEMEANOR)
“On or about the 17th day of April 2016, Roy Warden knowingly disobeyed
or resisted the lawful order, process or mandate of a court, to wit:
C20161104, a Class 1 Misdemeanor, in violation of A.R.S. §§ 13-2810 (A)
(2) and (B), 13-707, 13-802, 13-804 and 13-902. [13-2810A2] (Exhibit
One)
I. STATEMENT OF THE FACTS

1. Appellant (Warden) is a multi-decade long political activist who, since 2005, has
energetically exercised his rights as a (1) citizen, (2) non-partisan political activist
and (3) publisher of Arizona Common Sense, a political newsletter received by
more than 1,200 members of the Pima County Bar.

2. Complaining witness Whitaker is a (1) long-time Republican political operative,

(2) former Republican Precinct Committeeman, and (3) frequent contributor to
political debate in the Facebook political blog Pima County Republicans.

3. Since 2011 the parties have been intense political antagonists, often clashing in
Facebook political blogs, which Appellant contends are privately operated public
forums.

4. On March 4, 2016 Whitaker “shouted down,” assaulted, and challenged Warden

to a fistfight while Warden conducted a political rally in front of the U.S. Court,
District of Arizona advocating “Justice for LaVoy Finicum.”

5. Subsequently; Warden published3 a series of articles criticizing (1) Whitaker’s

conduct at the rally and (2) Whitaker’s “pro-militia” opinions expressed during a
videotaped reporter’s interview made subsequent to the rally.

6. Thereupon; on March 7, 2016 Whitaker applied for, and was granted, an

immediate “No Contact” Injunction Against Harassment by Pima County Superior
Court Judge Catherine Woods. Significantly; the Woods injunction did not

3
These articles were posted in cyberspace public forums conducted within Facebook
political blogs, such as “Arizona Politics” and “Pima County Republicans.”

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 proscribe Warden’s political writings or Facebook postings in spite of Whitaker’s
plea. (Exhibit Two)

7. Subsequently; on March 22, 2016, based solely on Warden’s continued criticisms

of Whitaker’s conduct at the rally and opinions expressed in Facebook political
blogs, Whitaker filed a “Notice of Contempt” and was assigned action # C2016-
1109.

8. On April 6, 2016 Warden filed a Motion to Dismiss the injunction on the basis his
Facebook political commentary was not subject to proscription by Arizona’s
“anti-harassment” statutes as per LaFaro v. Cahill, 203 Ariz. 482 (2003).
9. Subsequently; Pima County Superior Court Judge Sara Simmons (1) denied
Warden’s Motion to Dismiss, and (2) held hearings on April 14, 2016, April 21,
2016, May 24, 2016, May 25, 2016, June 21, 2016 and August 02, 2016 before
(1) upholding the “no (physical) contact” provision of Judge Woods injunction,
and most significantly, (2) denying Whitaker’s request to hold Warden in
contempt for his Facebook postings. (Exhibit Three)
JUSTICE COURT CRIMINAL PROSECUTION
10. On August 2, 2016, the same day Judge Simmons denied Whitaker’s request to
hold Warden in contempt for his Facebook postings, the Pima County Attorney
filed #CR-16-612627-MI; which criminally charged Warden for the very same
postings Judge Simmons refused to civilly enjoin. (see Exhibit One)
11. On December 23, 2016 Warden filed his appeal of the “no contact” Woods-
Simmons order in Division II of the Arizona Appellate Court, action # 2 CA-CV
2016-0160.

12. On June 13, 2017 Division II issued its’ ruling upholding the “no (physical)
contact” provision of the Woods-Simmons orders but expressly excluding Warden
Facebook postings or Warden-to-Whitaker emails, as set forth below:

“(The Simmons Order) specifically notes that Warden “may comment on

Mr. Whitaker’s ideas.” The trial court specifically denied Whitaker’s

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 request that the court “prohibit Mr. Warden from making any direct or
indirect contact” with him on social media. (Exhibit Four ¶16)
“The injunction does not prohibit Warden’s direct communications with
Whitaker about matters of public interest and concern, it allows him to
comment on Whitaker’s ideas, and it does not restrict what he calls ‘[his]
fundamental right’ to threaten Whitaker in self-defense.” (Exhibit Four,
¶16)
13. Nevertheless; on October 31, 2017 during a “Probable Cause Hearing” in the
Justice court criminal case, Pima County Prosecutor Sara Levine ignored the
Division II ruling and misinformed the Trial Court:

“(W)hen the Superior Court reviewed (the) Injunction Against

Harassment, they made it clear that Mr... that Mr. Warden was not
supposed to contact Cody (Whitaker) in any way, including on Facebook,
including tagging on Facebook, and that... that any sort of communication
at all through Facebook that Mr. Warden made that was in contact with
(Whitaker) that specifically... if he got notification of it, that's all included
in the Injunction Against Harassment, and also after this time, after the
court already heard that, Mr. Warden emailed articles to Mr. Whittaker,
Cody, directly, and that is in violation of the Injunction Against
Harassment.” (Exhibit Five, RT 4:7-14)
“In... the Injunction Against Harassment, and that has to do with the fact
that the order specifically said no contact at all in any way, shape, or form,
including electronic media.” (Exhibit Five, RT 33:38-34:1)
14. Additionally; on October 31, 2017, (regarding the Warden-Whitaker Facebook
postings) Pima County Deputy Bowe testified:

“It was clear that there was... to me, it appeared that Mr. Warden was
trying to make a point about the ongoing legal de... debate between them
all. I guess there was some history of some conflict, and he's talking about
the Constitution. He referred to Mr. Whittaker as a redneck thug…”
(Exhibit Five, RT 7:11-16)
15. On October 22, 2018 Appellant filed a Motion to Dismiss the Justice Court
criminal action, citing Arizona law, set forth in LaFaro, as follows:
“(W)e construe § 12-1809's4 definition of harassment-conduct that
“serves no legitimate purpose”-to exclude pure political speech. We are
confident that the legislature did not intend § 12-1809 to be used for

4
And, logically by extension A.R.S. 13-2921A1.M

5
 issuance of injunctions restricting political speech. Political speech must
be given strong protection in our democracy. (citations omitted) Our
construction of A.R.S. § 12-1809 is intended to prevent future improper
application of this statute to protected political speech.” LaFaro v Cahill,
203 Ariz.482, 488-89 (App. 2003) (emphasis added)

The Issues in Whitaker v. Warden Are Identical to LaFaro v. Cahill

16. In LaFaro, the parties (political antagonists) engaged in intense political debate
where, (along with unrepeated swearing) epithets such as “racist”, “bigot”,
“homophobe” and “Nazi” were applied.

17. In Whitaker, the parties (political antagonists) were engaged in intense political
debate when, as Deputy Bowes testified, Warden called Whitaker a “Red Necked
Thug”.

18. In LaFaro, an angry, annoyed and “harassed” LaFaro filed for and received an
ARS 12-1809 Injunction against Neighborhood and Workplace Harassment.

19. In Whitaker, an angry, annoyed and “harassed” Whitaker applied for and Judge
Woods granted an ARS 12-1809 Injunction against Neighborhood and Workplace
Harassment, enjoining Warden from initiating physical contact, but denying
Whitaker’s request to enjoin Warden’s Facebook postings.

20. On March 22, 2016 Whitaker filed a Notice of Contempt, asking Judge Simmons
to find Warden in contempt for Warden’s Facebook postings.

21. On August 2, 2016 (after exhaustive hearings held on 5 different occasions) Judge
Simmons (following Judge Woods lead) again denied Whitaker’s request to hold
Warden in contempt and to enjoin Warden’s future Facebook postings.

22. Underlying both Judge Wood’s and Judge Simmons refusal to enjoin or hold in
contempt Warden’s Facebook postings is the clear, unambiguous language of
LaFaro:
“Our construction of A.R.S. § 12-1809 is intended to prevent future
improper application of this statute to protected political speech.”
(LaFaro 488-489)

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23. However; on February 19, 2019, the Justice Court ignored the LaFaro ruling,
denied Appellant’s Motion to Dismiss and set a trial date of May 3, 2019.

JUSTICE COURT TRIAL

24. The Justice Court determined that during the 4 days of hearings in the civil case,
Judge Simmons reviewed all the same evidence the state was presenting against
Warden at trial (Exhibit Six, RT Trial 166)

25. At trial Whitaker admitted (1) all of the objected-to Warden Facebook postings
occurred in political blogs, (Exhibit Six, RT Trial 76), and (2) he felt annoyed
and harassed because, amongst other things, Warden had referred to him as a
“Facebook Patriot,” (Exhibit Six RT Trial pg. 85)

26. At trial Judge Roberts found Appellant (1) not guilty of “Interference with a
Judicial Proceeding,” and (2) guilty of “Harassment.” As follows:

“For the charge of harassment, I don't find that simply tagging somebody
is political commentary. Just to tag somebody for no specific purpose
does not constitute political commentary. As a matter of fact, I don't think
it even comes anywhere close to that.
“On June 29th, (2016) on two separate occasions, you posted an article
about Mr. Whitaker's sexuality, which is not political commentary. Also,
on June 30th (2016) you did the exact same thing. On July 1st, (2016)
you did it twice. On July 3rd, (2016) you did it twice on California sites,
not for political commentary, and on July 2nd (2016). Therefore, those
actions this court does find were for the sole purposes of harassing Mr.
Whitaker. Therefore, the court does find you guilty of the charge of
harassment.”
27. The specific article the Justice Court found to be “harassing” was one of the
Warden articles reviewed by Superior Court Judge Simmons prior to her August
2, 2016 ruling which did not find that article, or any Warden article, to be
“harassment” as per A.R.S. § 12-1809. Otherwise Judge Simmons would have
held Warden in contempt, as Whitaker requested.

28. More importantly; Division II, reviewed all Warden postings, (including the same
article the Justice Court found to be “harassing” and “not political”), and—fully

7
 briefed on LaFaro and the constitutional implications of applying A.R.S. § 12-
1809 to those engaged in vigorous political debate—(1) endorsed the Woods-
Simmons injunction and, in spite of Whitaker’s invitation, (2) did not find Warden
in civil contempt.

ARGUMENT
27. Regarding the actual meaning of the March 8, 2016 Judge Woods issued
injunction (Exhibit One) or the Judge Simons August 2, 2016 modification
(Exhibit Two): this court needn’t parse facts and testimony, or exhaustively review
prior proceedings, because the Arizona Court of Appeal Division II did that for us
with its June 13, 2017 ruling which in pertinent part stated:

“(The Simmons Order) specifically notes that Warden “may comment on

Mr. Whitaker’s ideas.” The trial court specifically denied Whitaker’s
request that the court “prohibit Mr. Warden from making any direct or
indirect contact” with him on social media. (Exhibit Four, ¶16)
“The injunction does not prohibit Warden’s direct communications with
Whitaker about matters of public interest and concern, it allows him to
comment on Whitaker’s ideas, and it does not restrict what he calls ‘[his]
fundamental right’ to threaten Whitaker in self-defense.” (Exhibit Four,
¶16)”

28. And, this court needn’t re-revisit important constitutional arguments regarding
“overbreadth” and “vagueness”, or agonize over competing public interests (the
public’s right to speak vs the non-existent “right” right to avoid “annoyance” while
engaged in intense political argument in political blogs, etc.,) because the LaFaro
Court did that for us when it wrote:
“(W)e construe § 12-1809's definition of harassment-conduct that
“serves no legitimate purpose” to exclude pure political speech. We are
confident that the legislature did not intend § 12-1809 to be used for
issuance of injunctions restricting political speech… Our construction of
A.R.S. § 12-1809 is intended to prevent future improper application of
this statute to protected political speech.” LaFaro v Cahill, 203 Ariz.483,
488, 489 (App.) (2003) (emphasis added)

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 29. Finally, Regarding Appellant’s Facebook postings (including the Justice Court’s
criminalization of the June 29, 2016 article): what three higher courts (including
Division II) had refused to civilly enjoin using a “preponderance of the evidence”
standard, the Pima County Justice Court criminally sanctioned using the much
harsher “beyond a reasonable doubt” standard.

ARGUMENT SUMMARY
30. If two Pima County Superior Court Judges (Woods and Simmons) denied
Whitaker’s request to enjoin Warden’s Facebook postings or to hold him in civil
contempt—and Division II endorsed their decisions5—then HOW can a Pima
County Justice Court judge find Warden “guilty beyond a reasonable doubt?”

31. Moreover; Pima County prosecutors have a duty to seek justice, not just to “win”
cases. As set forth by the Arizona Supreme Court in Pool v. Superior Court, 139
Ariz. 98, 103:

“Our system represents a rule of law based upon the principle that officers
of the law are bound by and must act within the law…. Any other system
is a step which will inevitably lead us, as it has led others, to a society
where the worst criminals are often those who govern and administer law.
Thus…the prosecutor is not the representative of an ordinary litigant; he
is a representative of a government whose obligation to govern fairly is as
important as its obligation to govern at all. The prosecutor's interest in a
criminal prosecution "is not that it shall win a case, but that justice shall
be done." Thus, "while he may strike hard blows, he is not at liberty to
strike foul ones." It is the prosecutor's duty to refrain from improper
methods calculated to produce a wrongful conviction just as it is his duty
to use all proper methods to bring about a just conviction.” Pool v.
Superior Court, 139 Ariz. 98, 103 citing Berger v. United States, 295 U.S.
78, 88, 55 S. Ct. 629, 633, 79 L. Ed. 1314 (1935). (emphasis added)

32. This case would have been dismissed on October 31, 2017 at the “Probable Cause
Hearing” but, as set forth above in ¶13, the state misled the Court and said the

5
Both Judge Simmons and Division II reviewed the specific article Judge Roberts found
to be a criminal violation of law, and declined to find Warden in contempt.
9
 Woods-Simmons injunction did sanction Warden’s Facebook postings when, as
Division II determined, it did not.

“Our system represents a rule of law based upon the principle that
officers of the law are bound by and must act within the law…. Any other
system is a step which will inevitably lead us, as it has led others, to a
society where the worst criminals are often those who govern and
administer law.” Poole at 103

33. Question: Did the state “tell the truth” at the Probable Cause hearing on October
31, 2017?
34. Answer: No, it did not. (See ¶13)
35. Question: Was the Justice Court determination of “guilty” beyond a reasonable
doubt consistent with prior, higher court rulings?
36. Answer: No it was not.
WHY Anti-Harassment Statutes Should Never be Applied to
Those Engaged in Vigorous Political Debate

37. This case does not present a novel legal issue for review: For considerable time
law professors6 and legal scholars have debated whether civil harassment statutes
should be used to sanction any speech whatsoever, political speech or not.
38. Selected excerpts from Free Speech and Civil Harassment Orders by Aaron
Caplan:

 “Every year, U.S. courts entertain hundreds of thousands of petitions for

civil harassment orders, i.e., injunctions issued upon the request of any
person against any other person in response to words or behavior deemed
harassing.
 “Unfortunately, civil harassment litigation includes structural features
that cause courts to systematically underestimate the free speech dangers.
 “Civil harassment statutes can protect the safety, privacy, and autonomy
of victims, but when courts declare that speech is harassing, or issue

6
Harassment and Free Speech Doctrine by Professor Eugene Volokh, UCLA (1992) and
Free Speech and Civil Harassment Orders by Professor Aaron Caplan. Hastings Law
Journal, Vol 64:781 (2012)

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 injunctions against future speech on grounds that it would harass, they
may violate constitutional rules against vagueness, overbreadth, and prior
restraint.
 Speech about the victim directed to other listeners (especially defamation
and malicious prosecution) falls outside the definition (of harassment)
altogether.
 Madsen v. Women’s Health Center explained that courts should apply a
“somewhat more stringent application of general First Amendment
principles” to speech-restrictive injunctions than to speech-restrictive
statutes.
 (C)ivil harassment law has a way of encouraging some judges to dispense
freewheeling, Solomonic justice according to their visions of proper
behavior and the best interests of the parties.
 Complicating matters is that judges in courts of limited jurisdiction tend
to have less exposure to (and therefore experience with) sometimes
complex free speech doctrines than do superior court judges or federal
district judges.
 As then-Judge Alito wrote with regard to a school’s on-campus
harassment code, “there is no categorical ‘harassment exception’ to the
First Amendment’s free speech clause.” (Saxe v. State Coll. Area Sch.
Dist., 240 F.3d 200, 204 (3rd Cir. 2001)
 “[A] function of free speech under our system of government is to invite
dispute. It may indeed best serve its high purpose when it induces a
condition of unrest, creates dissatisfaction with conditions as they are, or
even stirs people to anger.” Terminiello v. Chicago, 337 U.S. 1 (1949)

CONCLUSION
39. This case presents substantial constitutional issues regarding Facebook de-facto
public forums and the use of Arizona’s “anti-harassment” statutes to criminalize
political speech, now expressly prohibited by LaFaro.

40. Let’s get real here: Was Cahill’s use of the words “homophobe” and “Nazi” (and
many other swear words the Court of Appeals chose not to repeat) actual “political
debate?”

41. The answer must be “probably not.”

42. However; those engaged in intense political debate often swear at each other or
call each other names while engaged in debate; for common sense proof of this

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 we only have to look back 2 years to what we all remember to be the incredible
vitriol expressed during the 2016 election for President of the United States.

43. Were the “name-calling” words of the supporters of each candidate actual
“political argument” or are they the kinds of things people say to each other while
engaged in debate?

44. Can we “parse” the name-calling words out from the debate and criminalize them
as did the trial Court in this case?

45. A common sense review of LaFaro and the article itself7 (which was a specific
invitation to the public to attend a court hearing and ask Whitaker why did he post,
on Facebook, a picture of a naked and laughing marine wearing only a fig leaf to
cover his genitals), tells us: no, we may not.

46. Appellant respectfully submits:

 The public voluntarily enters public parks to attend rallies and engage in
intense political debate, including name-calling.

 The public voluntarily enters Facebook political blogs to engage in intense

political debate, including name calling.

47. As a practical matter, Appellant respectfully submits: Facebook political blogs

have become privately operated, cyberspace located, public forums.

48. Like LaFaro, there is little doubt that an “angry” Whitaker felt “annoyed” and
“harassed” by Warden’s aggressive challenge of (1) Whitaker’s conduct at the
“Justice for LaVoy Rally and (2) Whitaker’s ideas re militias and what Whitaker
believes to be the lawful “right to pick up arms and overthrow the government.8”

7
The topic of whether the VA should use public funds to pay for transgender sex change
operations is currently a hotly debated political issue within the V.A. community.
8
Whitaker’s noxious ideas, expressed immediately subsequent to the 2016 rally, have been
shared worldwide, prompting Warden’s aggressive challenge of his viewpoints.
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49. However; for the State to successfully apply the “annoying and harassing”
standards of A.R.S 13-2921A1M to the facts of this case, is to ask this Court to
(1) defy two prior Superior Court rulings and a Division II ruling that Warden’s
Facebook commentary was not enjoined, (2) a clear statement of constitutional
law set forth in LaFaro, and (3) an overwhelming number of landmark decisions
protecting free speech, including but not limited to: Terminiello v. Chicago, 337
U.S. 1 (1949), Cohen v. California, 403 U.S. 15 (1971), Coates v Cincinnati,
402 U.S. 611 (1971) New York Times Co. v United States, 91 S.Ct. 2140 (1971),
Phoenix Newspapers, Inc., v Superior Court, 101 Ariz. 257 (1966), etc., etc.

50. Moreover: by the Pima County Attorney selectively deciding, on a case-by-case

basis, who to prosecute and what words published in a Facebook political blog are
“annoying and harassing” and what words are not, the Pima County Attorney,
selectively, capriciously, and arbitrarily, places herself in total control of
cyberspace political debate, the modern means of political communication.

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

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

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

3. Issue a strong statement of the law regarding the State’s duty to “seek justice”
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

undersigned 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

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