Opinion text
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
In re the Matter of:
SHELBY ELIZABETH GREGORWICZ, Petitioner/Appellee,
v.
SEAN VILLA-KENNEDY, Respondent/Appellant.
No. 1 CA-CV 25-0510 FC
FILED 06-17-2026
Appeal from the Superior Court in Maricopa County
No. FC2025-051499
The Honorable John R. Doody, Judge Pro Tempore
The Honorable Hope E. Fruchtman, Judge Pro Tempore
VACATED
COUNSEL
Shelby Elizabeth Gregorwicz
Petitioner/Appellee
Sloma Law Group, Phoenix
By Sue A. Jones
Counsel for Respondent/Appellant
GREGORWICZ v. VILLA-KENNEDY
Opinion
OPINION
Judge Veronika Fabian delivered the opinion of the Court, in which
Presiding Judge Michael J. Brown and Vice Chief Judge David D.
Weinzweig joined.
F A B I A N, Judge:
¶1 Sean Villa-Kennedy (“Father”) appeals an order of protection
obtained against him by Shelby Elizabeth Gregorwicz (“Mother”). The
order of protection was based on the superior court’s finding that Father’s
social media post, which disclosed his own HIV status and identified
Mother as a former partner, was criminal harassment. Because Father’s
social media post was protected free speech, this Court vacates the order of
protection.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 Mother and Father were at one time in a relationship, which
resulted in the birth of their child in 2024.
¶3 In May 2025, Mother posted a message on social media from
an account with the name “Shelby Starbuck” to a group of more than 600
members. The post included an image of an HIV negative patch and this
text:
Ordering a bunch of these lmao. Im sure you’d be surprised
which of your friends cant wear it, but hey lets be transparent.
Be safe out there! If anyone wants one lmk
¶4 Days later, Father posted his own message, using his real
name, to the same group, which read:
It has come to my attention that there is someone in this group
that has taken the liberty to share some deeply personal
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GREGORWICZ v. VILLA-KENNEDY
Opinion
information with members that shouldn’t have been. With
that said….
I had a relationship with Shelby Starbuck. And prior to that
relationship even becoming a relationship I disclosed with
her that I live with HIV. She was informed and aware and
made the decision to be in a relationship with me. We
obviously had sexual relationship that led to the birth of our
daughter. Neither Shelby nor our daughter contracted HIV.
Nor has any sexual partners I have had. For Shelby to take it
up on herself to use this deeply sensitive and personal
information in some way to hurt me should be self evident of
her character. Beyond that. I am now forced to put myself out
there to combat any further rumors or misinformation being
told. I post this here for two reasons. 1 being Mike runs free
page and I know this post will not be taken down. 2 this is
where most the rumors are being shared. I will be only
address[ing] the topic of HIV as any further rumors about me
or my relationship with Shelby and our daughter should be
none of your concern. And frankly I believe my status should
have remained none of your concern as well. But to advocate.
HIV is no longer a death sentence. Millions of people live
healthy normal lives with HIV. The current medication
available makes it untransmittable. It has become a chronic
illness now where it was a terminal illness before. I lead a
healthy normal life. I made bad life choices and one of those
will forever remind me of actions have consequences. But
there are people out there who contract HIV of no fault of
their own and the stigma is a real and scary thing. I write this
now sitting in the bathroom at work fighting back tears so I
can see clearly. I am terrified at the friends and respect I will
lose but at the same time I can not idly stand by to be made
look bad when it something out of my control and further I
do everything to make sure I am healthy and the people I care
about are safe.
¶5 After Mother read the post, she texted Father and asked him
to remove it. Father refused, explaining his post “was made in response to
[Mother’s] post,” which “started rumors and talk,” and to “help educate
and . . . try and lessen the stigma.”
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¶6 Mother then filed a petition for an order of protection against
Father for herself and their child. She alleged Father’s post qualified as
domestic violence.
¶7 After an ex parte hearing, the superior court issued an order of
protection under A.R.S. § 13-3601, finding that Father’s social media post
constituted harassment under A.R.S. § 13-2921. The court held that the First
Amendment did not preclude the order of protection because
“[d]efamation is not ‘protected speech’ under the First Amendment.” After
being served with the order of protection, Father requested a contested
evidentiary hearing. See Ariz. R. Protective Ord. P. 38(a).
¶8 At the contested hearing, Mother testified about the public
nature of Father’s post, a pattern of harassment, and “the potential effect”
the post could have on her business, personal relationships, and life. She
also said she did not disclose Father’s status publicly. Father testified he
was responding to Mother’s post and intended to educate people on HIV.
The parties agreed the post was only made once and taken down after the
order of protection was served.
¶9 After the contested hearing, the superior court continued the
order as modified to reflect that Father could not possess a firearm. It found
“[Father’s] act in posting to an electronic forum to more than 600 people
shows repeated acts of harassment which were meant to annoy, harass or
intimidate [Mother].” Although the court orally stated the order of
protection was based on A.R.S. § 13-2916, the written order of protection
did not cite a statutory basis.
¶10 Father timely appealed. This Court has jurisdiction pursuant
to A.R.S. §§ 12-120.21(A)(1) and 2101(A)(5)(b), and Rule 42(a)(2) of the
Arizona Rules of Protective Order Procedure. See Moreno v. Beltran, 250
Ariz. 379, 382 ¶¶ 11, 13 (App. 2020).
DISCUSSION
¶11 To issue an order of protection, a court must find reasonable
cause to believe the defendant may commit an act of domestic violence or
has committed an act of violence in the past year. Ariz. R. Protective Ord.
P. 23(e)(1); A.R.S. § 13-3602(E). Domestic violence means a criminal “offense
prescribed in . . . § 13-2916 [or] 13-2921” in the context of various domestic
relationships. A.R.S. § 13-3601(A). In issuing the initial and continued
orders of protection, the superior court found that Father’s social media
post constituted the offense of “harassment” under both A.R.S. §§ 13-2916
and 2921.
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¶12 Father argues that his social media post was protected speech
under the state and federal constitutions. This Court reviews constitutional
claims and matters of statutory interpretation de novo. Hobson v. Mid–
Century Ins. Co., 199 Ariz. 525, 528 ¶ 6 (App. 2001). Because the order of
protection in this case violates the free speech protection of the federal
constitution, no analysis of the Arizona Constitution’s broader right to free
speech is necessary. See Brush & Nib Studio, LC v. City of Phoenix, 247 Ariz.
269, 282 ¶ 47 (2019).
¶13 If speech or expressive conduct is constitutionally protected,
then Arizona harassment statutes do not apply, and an order of protection
based on that speech or conduct is improper. See A.R.S. § 13-2916(C) (“This
section does not apply to . . . Constitutionally protected speech or activity
. . . .”); State v. Brown, 207 Ariz. 231, 235 ¶ 10 (App. 2004) (A.R.S § 13-2921
“does not apply to pure First Amendment speech and instead regulates, at
most, a blend of speech and conduct”).
¶14 Father’s social media post was “pure speech” to which the
First Amendment provides strong protection. See Mahanoy Area Sch. Dist. v.
Levy ex rel. B.L., 594 U.S. 180, 191 (2021) (student’s social media post was
“pure speech to which, were she an adult, the First Amendment would
provide strong protection”); Brush & Nib Studio, LC, 247 Ariz. at 284 ¶ 58
(“Pure speech includes written and spoken words, as well as other media
such as paintings, music, and film that predominantly serve to express
thoughts, emotions, or ideas.”) (citation modified).
¶15 Because Father’s social media post was pure speech, the
government may not punish his words unless they are within “narrowly
limited classes of speech.” Gooding v. Wilson, 405 U.S. 518, 522 (1972)
(quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 571 (1942)); see Reed v.
Town of Gilbert, Ariz., 576 U.S. 155, 171 (2015) (for protected speech, the state
may only impose a content-based restriction when the restriction furthers a
compelling interest and is narrowly tailored to achieve it). Such speech
includes statements intended to incite imminent lawless action, obscenity,
defamation, speech integral to criminal conduct, fighting words, and true
threats. See, e.g., Brandenburg v. Ohio, 395 U.S. 444 (1969) (per curiam)
(incitement); Miller v. California, 413 U.S. 15 (1973) (obscenity); Gertz v.
Robert Welch, Inc., 418 U.S. 323 (1974) (defamation); Giboney v. Empire Storage
& Ice Co., 336 U.S. 490 (1949) (speech integral to criminal conduct);
Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) (fighting words); Watts v.
United States, 394 U.S. 705 (1969) (true threats).
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¶16 Mother argues speech that harasses a protected party is one
of the classes of speech not protected by the First Amendment. There is,
however, no categorical “harassment exception” to the First Amendment.
Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 204 (3d Cir. 2001).
“Legislatures are free to punish nonspeech conduct, as well as narrow
categories of constitutionally unprotected speech, such as true threats. But
they cannot label speech that mentally distresses people ‘stalking’ [or
‘harassment’] and then punish all such speech.” Eugene Volokh, Overbroad
Injunctions Against Speech, 45 Harvard Journal of Law and Public Policy 188
(2022). Thus, the order of protection’s validity depends on whether Father’s
post fell within one of the recognized exceptions to constitutionally
protected speech.
¶17 In issuing the initial order of protection, the superior court
found that the First Amendment was not implicated because Father’s post
defamed Mother and defamation is not protected speech. To establish
defamation, “a publication must be false and must bring the defamed
person into disrepute, contempt, or ridicule, or must impeach plaintiff’s
honesty, integrity, virtue, or reputation.” Godbehere v. Phx. Newspapers, Inc.,
162 Ariz. 335, 341 (1989) (emphasis added). The superior court cited to
Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990), to conclude that Father’s
post was not protected by the First Amendment because it was a statement
of opinion implying a false assertion of fact. However, Father’s post was
neither false nor was it a statement of opinion implying a false assertion of
fact. Instead, Father stated the truth – that he had HIV and that Mother and
the parties’ daughter did not.
CONCLUSION
¶18 Because Father’s post was protected by the First Amendment,
the superior court erred in finding it constituted criminal harassment and
by issuing an order of protection. Therefore, the order of protection is
vacated. Mother’s request for sanctions is denied.
MATTHEW J. MARTIN • Clerk of the Court
FILED: JR
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