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In Williams, we concluded harassment is not protected speech and that the defendant "was convicted not for posting about" the victim, "but after the jury found" he engaged in conduct that violated the injunction against harassment.
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No. 2 CA-CR 2016-0345
07-24-2018
THE STATE OF ARIZONA, Appellee, v. JOHN WALTER WILLIAMS, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By David A. Sullivan, Assistant Attorney General, Tucson Counsel for Appellee James L. Fullin, Pima County Legal Defender By Robb P. Holmes, Assistant Legal Defender, Tucson Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e). Appeal from the Superior Court in Pima County
No. CR20153855001
The Honorable Jane L. Eikleberry, Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By David A. Sullivan, Assistant Attorney General, Tucson
Counsel for Appellee James L. Fullin, Pima County Legal Defender
By Robb P. Holmes, Assistant Legal Defender, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Judge Espinosa authored the decision of the Court, in which Presiding Judge Vásquez and Judge Eppich concurred. ESPINOSA, Judge:
¶1 Following a jury trial, John Williams was convicted of aggravated harassment, stemming from the violation of a protective order, and was sentenced to 1.75 years' imprisonment. On appeal, he challenges that order, arguing it was invalid from the outset as a violation of his First Amendment right to free speech. For the following reasons, we affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to upholding the jury's verdict. See State v. Delgado, 232 Ariz. 182, ¶ 2 (App. 2013). Williams and the victim, K.S., first met in October 2014 at a charity event at which K.S. was working as a model. Williams, an aspiring photographer, attended to take pictures alongside a photographer K.S.'s modeling group had invited to the event. At one point, another model's breasts became accidentally exposed and Williams captured the mishap in his photographs. K.S. asked Williams to relinquish the photos, but he refused. K.S. then requested he not photograph her in the future. She did not, however, try to prevent him from taking pictures of others at venues where she was working.
¶3 Williams thereafter "follow[ed] [K.S.] to various events," announced his presence on social media when he was in her vicinity, and ignored her requests not to photograph her. Williams also frequently "tagged" K.S.'s personal Facebook page or public pages associated with or operated by her. K.S. attempted to block Williams's access to the pages and profiles she controlled, but he "got around the block" and continued tagging her. Additionally, within an hour of K.S.'s vehicle being vandalized with pink paint, Williams tagged her in a post saying "[her] color was going to be orange and his was going to be pink." K.S. testified she was upset by this post, as it demonstrated "[Williams] had found [her] home."
"Tagging" is a process whereby a social media user creates a link to another user's social media profile page. See What Is Tagging and How Does It Work?, FACEBOOK, https://www.facebook.com/help/124970597582337/ (last visited July 13, 2018). On Facebook, when a user tags someone, the other user is notified and the associated posting becomes visible to that user and generally the tagged user's Facebook "friends." Id.
¶4 In August 2015, K.S. applied for a protective order against Williams in the Pima County Consolidated Justice Court. Following a hearing in which Williams and one witness testified on his behalf, Williams was enjoined from coming within 1,000 feet of K.S. and was ordered to have "no contact" with her. Only four days after the injunction was served, Williams posted to a local radio station's Facebook page that K.S., a recurring radio personality on the station, was a "fraud" and a "real porno actress," tagging one of K.S.'s pages in the process. That same day, Williams tagged K.S. in at least two more posts on his own Facebook page, accusing her and the judge who had granted the injunction of ethical violations and stating, "I can't wait to see you in orange and your judge will be your cell mate. I guarant[ee]." The following morning, he replied to comments on his post to the radio station's page, again tagging K.S.'s pages.
¶5 Williams was charged with aggravated harassment for the posts on August 25, 2015, and the morning of August 26, 2015. He was convicted and sentenced as described above, and we have jurisdiction over his appeal pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
Validity of the Injunction Against Harassment
¶6 Williams claims the protective order was invalid at the time of its issuance because it was unconstitutionally vague and overbroad in violation of his First Amendment right to free speech. Specifically, he quotes the language of the statute under which he was convicted, A.R.S. § 13-2921.01(A)(1), which requires an injunction to be "still valid" when the harassment occurs, and argues the injunction levied against him was "unconstitutional and facially invalid" because it violated his First Amendment rights and accordingly he "did not violate a valid injunction and his conviction must be reversed." However, Williams admits he "did not challenge the enforceability of the injunction" before this appeal or attempt to appeal the injunction following its issuance as prescribed by law.
Injunctions against harassment "entered, affirmed, modified, or quashed after a hearing at which both parties had an opportunity to appear" may be appealed. Ariz. R. Protective Order P. 42(a)(2).
¶7 This appeal does not arise from the entry of an injunction against harassment, nor would this court be the appropriate forum for such an appeal given that the injunction was entered in a limited jurisdiction court. See Ariz. R. Protective Order P. 42(b)(1). Accordingly, Williams may not now challenge the injunction itself. "[B]y failing to appeal the injunction or to seek its review by special action, [Williams is] now estopped to launch a collateral attack on its validity by an appeal from [his] conviction[]" for violating the injunction. State v. Chavez, 123 Ariz. 538, 539 (App. 1979). Accordingly, because the facial validity of the injunction is not properly before us in this appeal, we do not address Williams's arguments that the injunction was unconstitutionally vague and overbroad.
Williams himself states he "is not asserting the First Amendment in this instance as a defense to the criminal charge" but rather "is directly attacking the constitutionality of the permanent injunction."
To the extent Williams suggests § 13-2921.01(A)(1)'s phrase "still valid" means anything other than not expired and still in force, he has offered no argument in this regard, and we do not address the issue further. See State v. Carver, 160 Ariz. 167, 175 (1989) ("[O]pening briefs must present significant arguments, supported by authority, setting forth an appellant's position on the issues raised. Failure to argue a claim usually constitutes abandonment and waiver of that claim."). --------
Protected Speech Defense
¶8 Beyond his facial challenge, however, Williams additionally argues the actions for which he was convicted were constitutionally protected speech, which is a valid defense to charges of criminal harassment. See State v. Brown, 207 Ariz. 231, ¶ 21 (App. 2004) (recognizing as-applied challenges "can be addressed and cured through case-by-case analysis of specific facts"), quoting State v. Musser, 194 Ariz. 31, ¶ 10 (1999). We therefore consider this argument.
¶9 Williams asserts he "had a constitutionally protected right to use social media as long as he did not contact [K.S.] or engage in unprotected speech." Indeed, it is well established that postings on the internet enjoy the same protections as traditional speech. See Brown v. Entm't Merchs. Ass'n, 564 U.S. 786, 790 (2011) ("[W]hatever the challenges of applying the Constitution to ever-advancing technology, 'the basic principles of freedom of speech and the press, like the First Amendment's command, do not vary' when a new and different medium for communication appears."), quoting Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 503 (1952). As we have previously recognized, however, "harassment is not . . . protected speech." Brown, 207 Ariz. 231, ¶ 8, quoting Thorne v. Bailey, 846 F.2d 241, 243 (4th Cir. 1988) (omission in Brown). Additionally, as Williams concedes, contacting K.S. in any manner would violate the injunction's terms.
¶10 In characterizing the events leading to his conviction as merely "posting his thoughts, feelings, and opinions on his own Facebook account[,]" Williams ignores that he was convicted not for posting about K.S., but after the jury found he had contacted her in violation of the injunction against harassment. While Williams questions how K.S. could have been notified of his posts after blocking him, K.S. testified he "got around the block" and she continued to receive such notifications. There was thus evidence that Williams intentionally, albeit indirectly, communicated with K.S. by tagging her in the course of his posts. "It is not our task to weigh the evidence, nor to choose between the contradictory versions." State v. Thomas, 104 Ariz. 408, 411 (1969) (citation omitted). The jury was entitled to credit K.S.'s testimony, and we will not disturb its finding that Williams violated the injunction by contacting her.
Disposition
¶11 For the foregoing reasons, Williams's conviction and sentence are affirmed.