IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE JAMES MARTIN MITCHELL, ) Court of Appeals ) Division One Petitioner, ) No. 1 CA - SA 23 - 0219 ) v. ) Coconino County ) Superior Court THE HONORABLE CATHLEEN BROWN ) No. CR2019 - 00239 NICHOLS, Judge of the SUPERIOR ) COURT OF THE STATE OF ARIZONA, ) in and for the County of ) COCONINO, ) ) Respondent Judge, ) ) STATE OF ARIZONA ex rel. WILLIAM ) RING, Coconino County Attorney, ) ) Real Party in Interest. ) __________________________________) ORDER ACCEPTING JURISDICTION; GRANTING RELIEF IN PART The court, Presiding Judge Michael J. Brown, Judge Andrew M. Jacobs, and Judge Angela K. Paton has considered: (1) Petitioner James Mar tin Mitchell’s Petition for Special Action filed on November 8, 2023; (2) the State’s Response to Petition for Special Action; (3) Petitioner’s Notice of Filing Transcript of the October 25th Hearing, and the transcript filed with it; and (4) the December 8, 2023 Minute Entry attached to the State’s Response to Court’s Order to Supplement the Record. We now issue our ruling. 1. Mitchell challenges the superior court’s order compelling him to depublish his blog, asserting violations of the First Amendment to the United States Constitution and Article 2, Section 6 of the Arizona Constitution. 2. Mitchell’s blog, published before his plea deal, included screenshots of information giving rise to his prior criminal indictment for harassment - related offenses against identified victims. The blog also discussed Mitchell’s views of his treatment by non - victims, including Coconino County prosecutors, law enforcement, and the judiciary. 3. The First Amendment allows the government to res train speech, but only by the least restrictive means necessary to achieve a compelling state interest. See Reed v. Town of Gilbert, Ariz. , 576 U.S. 155, 163 (2015). Because the court restrained Mitchell’s speech without making findings the First Amendme nt requires before it may do so, we vacate the court’s orders depublishing his blog and enjoining his future publication of blog entries and remand for further proceedings consistent with the federal and Arizona constitutions. 4. We properly exercise special action jurisdiction where there is no equally plain, speedy, and adequate remedy by appeal.” Ariz. R. P. Special Action 1(a). We have exercised this discretion where the superior court has issued orders that are prior restraints of speech. Lokosky v. Ga ss in and for Cnty. of Maricopa , No. 1 CA - SA 18 - 0101, 2018 WL 3150499, at *1 ¶ 1 (Ariz. App., June 28, 2018) (reversing prior restraint consisting of ordering depublication of materials on Internet and ordering party not to publish such materials on Intern et pending outcome of preliminary injunction hearing). Prior restraints are especially objectionable and thus give us particular cause to exercise our discretion. Citizen Publ’g Co. v. Miller , 210 Ariz. 513, 516 ¶ 9 (2005) (explaining “[t]here is good re ason to [accept special action jurisdiction] when a suit raises serious First Amendment concerns.”). 5. On March 21, 2019, Mitchell was indicted for Stalking, Harassment, Taking the Identity of Another (7 counts), and Aggravated Harassment. These charges aro se from Mitchell’s alleged stalking of his ex - wife by posting fake accounts on Facebook and Twitter in the names of two of his children over whom he lost parental rights in 2012 to denigrate his ex - wife, who is also their mother. 6. On January 6, 2023, Mitc hell entered a plea agreement under which he would (1) plead guilty to one count of Aggravated Harassment, (2) be placed on supervised probation, and (3) face imprisonment were he to violate the conditions of his probation. The plea agreement prohibited M itchell from contacting the victims, but did not seek any restrictions on Mitchell’s use of the internet or computers. 7. On June 7, 2023, the court accepted Mitchell’s plea. 8. The State later complained by motion of the maintenance of Mitchell’s blog, citin g criticisms of the Deputy County Attorney (“Mosher”) who filed the motion, Flagstaff Police Department personnel, and other persons who are not victims. 9. On October 25, 2023, the court held a hearing on pending motions in Mitchell’s case. These included the State’s request that Mitchell be imprisoned for his blog as a violation of the conditions of his probation. 10. Toward the end of the October 25, 2023 hearing, while stating it was not conducting a contested hearing, the court ordered Mitchell to take d own his blog within one hour. The court accepted custody of a physical disc containing the blog but did not receive it into evidence or make any findings about the blog. 11. As we have explained, “[u]nlike a First Amendment statutory challenge, we engage i n a ‘more stringent application of general First Amendment principles’ when applying the First Amendment to an injunction restricting speech.” Mirabella at ASU Inc. v. Peacocks Unlimited LLC , 2022 WL 17983430, ¶ 15 (Ariz. App., Dec. 29, 2022) (citing Mads en v. Women’s Health Ctr. Inc. , 512 U.S. 753, 765 (1994)). For that reason, we not only apply general First Amendment principles when evaluating injunctions against speech, but also “seek ‘to ensure that the injunction was no broader than necessary to ach ieve its desired goals.’” Id. (citing Madsen , 512 U.S. at 765)). Moreover, Article 2, Section 6 of Arizona’s Constitution, upon which Mitchell also relies, “is in some respects more protective of free speech rights than the First Amendment.” Coleman v. City of Mesa , 230 Ariz. 352, 361 ¶ 36 n.5 (2012). 12. Although blog excerpts presented to the superior court (but apparently not admitted) mentioned non - victims and victims, it is unclear from the record what evidence the court relied upon before ordering Mitchell to take down his blog in its entirety. Also, the superior court did not make any findings that either taking down the entire blog, or depublishing particular blog entries, were remedies narrowly tailored to achieve a compelling state int erest. This is not consistent with Reed , 576 U.S. at 163, Madsen , 512 U.S. at 765, or our recent discussion of Madsen in Mirabella at ASU 2022 WL 17983430, ¶ 15. And to the extent Arizona’s Constitution might protect speech more broadly, as Coleman sug gests, the injunction at least as clearly does not measure up to its strictures. 230 Ariz. at 361 ¶ 36 n.5. 13. Moreover, the State has complained of the blog containing speech, namely that it makes “inaccurate statements directed at State’s counsel.” But be cause the court ordered all contents of the blog depublished without making any findings, it is unclear what compelling state interest justifies the removal of postings that include allegedly “inaccurate statements” about law enforcement. If there is not one, the court’s order appears to have enjoined at least some First Amendment - protected speech. 14. For completeness, we note that on November 29 the court repeated its October 25 order during the pendency of this special action. See December 8, 2023 Minute Entry (“The Court further advises that from this day forward the blog must be taken down and no further posts shall be posted.”) That order, like the October 25 order in open court, does not contain any findings necessary to narrowly tailor an injunction to protect the victims in Mitchell’s original indictment while avoiding overbreadth. 15. Mitchell also briefly raises but does not develop an argument that he was improperly denied the assistance of counsel at the October 25 hearing. We do not reach this a rgument, because it is undeveloped and thus waived. State v. Vargas , 249 Ariz. 186, 191 ¶ 22 (2020) (explaining that undeveloped arguments are waived). Moreover, to the extent Mitchell contends the State obtained the October 25 order at a hearing where h e lacked counsel and thus violated his rights, this order makes that claim moot. For these reasons: IT IS ORDERED vacating the court’s orders depublishing Mitchell’s blog and remanding to the superior court to examine the blog in its entirety and make fi ndings as to which entries must be removed such that the resulting order is narrowly tailored to achieve a compelling state interest. IT IS FURTHER ORDERED that any order prohibiting Mitchell in advance from publishing material on the internet must be n arrowly tailored to proscribe only that speech which must be restrained to serve a compelling state interest the court identifies. Any such order must clearly state what subjects, or mentions of what people, may or may not constitutionally be proscribed c onsistent with that analysis. IT IS FURTHER ORDERED that this Court retains jurisdiction over the remaining matters before it in this special action and will issue appropriate orders concerning those matters in due course. /s/ _____ ________ Andrew M. Jacobs, Judge A copy of the foregoing was sent to: James Martin Mitchell Jonathan C Mosher Hon Cathleen Brown Nichols Hon Valerie Wyant