ARIZONA COMMON SENSE

An Exercise in Aggressive, Non-Partisan Political Activism

November 09, 2013 Volume 3, Number 17

PRIOR RESTRAINT: THE BATTLE FOR THE FIRST

AMENDMENT IS FOUGHT RIGHT HERE

Pima County Bar:

Dear Members:

Attorney Stephen Elzinga, in a 2012 Arizona Law Review article,

said, in sum and substance, that our First Amendment liberties
are “under attack” today because some libraries have chosen to
close their “Public Forum Tables1” rather than allow gay rights
groups display literature advocating same sex unions, often with
explicit photographs, within view of the public and children.

Elzinga is wrong.

In Tucson City Court our First Amendment Rights are “under

attack” because Tucson City Court Judges write non appealable,
unconstitutional, orders of prior restraint to stop the speech of
the “controversial” public speaker, in spite of the law set forth by
the U.S. Supreme which has stated:

“The amendments were offered to curtail and

restrict the general powers granted to the
Executive, Legislative, and Judicial Branches…There
shall be no prior restraint of pure political speech,
by injunction or otherwise.” New York Times v
United States2, 91 S.Ct. 2140, 2142, 2143, 2146
(1971).

1 “Public Forum Tables” allow members of the local community

to distribute literature regarding community events.

2 a.k.a. “The Pentagon Papers Case.”

Frankly: most lawyers get it wrong when they try to explain the
First Amendment, the core purpose of which is to preserve the
process of peaceful revolution, the right of We the People to
stand upon public ground to aggressively challenge the rectitude
of official government conduct, whether that conduct be
executive, legislative or judicial, period.

For the past seven years Tucson Community Activist Roy Warden
has fought alone, on the streets of Tucson, in the Pima County
Jail and before the Tucson Municipal Court, to protect
everybody’s free speech rights.

For the past seven years Tucson Police Officers have arrested
Warden for exposing Tucson Open Border Policy and Cronyism;
City Court Judges have subsequently blocked Warden’s speech
by issuing non appealable, unconstitutional prior restraint orders
as a condition of Warden’s release from custody.

And time and time again local attorneys have turned away, have
refused to lend a hand to help protect Warden’s—and your
rights—because they (justifiably) fear retaliation from the legal
establishment and because they find Warden too aggressive in
his criticism of local officials, including judges.

Now, in Warden v Tucson City Court Judges, a Special Action3,

Warden has taken the issue of the prior restraint of pure political
speech to Division II of the Arizona Appellate Court.

Regarding prior restraint: In Phoenix Newspapers v Superior

Court, 101 Ariz. 257, the Arizona Supreme Court said:

“The words of the Arizona Constitution are too plain

for equivocation. The right of every person to freely
speak, write and publish may not be limited…There
can be no censor appointed to whom the press
must apply for prior permission to publish for…(i)t is
patent that this right to speak, write and publish
cannot be abused until it is exercised. Phoenix
Newspapers at 259 (Emphasis added.)

3 Arizona Appellate Courts have the power to accept jurisdiction

or deny a hearing in Special Actions.
 “The language of this provision makes plain its pur-
pose to prevent previous restraints upon publication
(and speech) * * * It has been said that the
privilege which is thus protected in the organic law
of the land ‘is almost universally regarded, not only
as highly important, but as being essential to the
very existence and perpetuity of free government.”
Phoenix Newspapers at 259.

Indeed: Free political speech is “essential to the very existence

and perpetuity of free government.”

And for seven years now, the right of free political speech has
been under direct attack, unremarked upon by an indifferent
media, here in what some so disarmingly refer to as “The Old
Pueblo.”

In Phoenix, the Arizona Supreme Court spoke eloquently about

the importance of the First Amendment.

Now We the People will see if the Arizona Appellate Court,

Division II, will keep their promise, accept jurisdiction and so
act.

Roy Warden, Publisher

Arizona Common Sense

roywarden@hotmail.com

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