From In re Gregorwicz v. Villa-Kennedy, decided today by Arizona Court of Appeals Judge Veronika Fabian, joined by Presiding Judge Michael J. Brown and Vice Chief Judge David D. Weinzweig:
[An] 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….
Mother and Father were at one time in a relationship, which resulted in the birth of their child in 2024.
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
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 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.
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.” …
The trial court issued a protective order, including a prohibition on gun possession by Father, finding that “[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].” The court of appeals reversed, reasoning:
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. Domestic violence means a criminal “offense prescribed in … § 13-2916 [or] 13-2921” in the context of various domestic relationships. 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….
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 ….”)…. 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.” Such speech includes statements intended to incite imminent lawless action, obscenity, defamation, speech integral to criminal conduct, fighting words, and true threats.
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. “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.” …
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.” … 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.
Sue A. Jones (Sloma Law Group) represents Father.
