State v. Campo

Opinions

Opinion

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

DUSTIN HOLLIS CAMPO, Appellant.

No. 1 CA-CR 25-0241

FILED 08-24-2026

Appeal from the Superior Court in Maricopa County No. CR2010-161954-001

The Honorable Justin Beresky, Judge

JURISDICTION ACCEPTED, RELIEF GRANTED IN PART AND DENIED IN PART

COUNSEL

Arizona Attorney General’s Office, Phoenix By Casey Ball, Kelly Gillilan-Gibson Counsel for Appellee

Michael P. Denea, PLC, Avondale By Michael P. Denea Counsel for Appellant

OPINION

Judge Andrew J. Becke delivered the opinion of the Court, in which Presiding Judge Samuel A. Thumma and Judge Kent E. Cattani joined.

Opinion of the Court

B E C K E, Judge:

¶1 Dustin Hollis Campo (“Campo”) appeals the superior court’s modification of his probation conditions. Treating Campo’s putative appeal as seeking special action relief, the record presented indicates that some of those conditions may violate Campo’s rights under the Arizona and United States Constitutions. We therefore accept jurisdiction, grant relief in part, and remand for further proceedings.

FACTUAL AND PROCEDURAL HISTORY

¶2 In 2011, Campo pled guilty to one count of sexual abuse of a minor, victim age fourteen, and two counts of attempted molestation of a child, victim age fourteen, all Class 3 felonies and dangerous crimes against children. Those crimes did not involve use of the internet. Campo was sentenced to five years in prison, followed by lifetime probation. Campo was also required to register as a sex offender. After serving his prison sentence, Campo’s probation began in April 2015.

¶3 Campo has had difficulty complying with probation. Among other things, he admitted to violating probation by failing to actively participate and cooperate in counseling and was reinstated on lifetime probation. Campo’s probation conditions include computer use restrictions. One condition requires Campo to get prior written approval from the Adult Probation Department (“APD”) before accessing the internet. In recent years, Campo’s social media use has caused substantial friction between him and APD.

¶4 In 2022, Campo moved to modify his probation conditions to allow social media use, which he claimed was necessary to exercise his rights “to freedom of speech, expression, and association.” APD opposed the request, expressing concerns about APD monitoring his use and noting that several platforms did not permit convicted sex offenders like Campo to use them. The State took no position on Campo’s motion. The court granted the motion by allowing Campo to use social media “to the extent those platforms permit him to do so” and requiring Campo to cooperate with APD to monitor his social media use.

¶5 Campo then began video recording interactions with his APD team in public and at probation offices, video recording his polygraphs and counseling, and posting those recordings to YouTube. His recordings included one video of his female probation officer during a home visit (“Probation Officer Video”). According to a description of the Probation

2

Officer Video,1 the camera was focused on the probation officer’s clothed crotch area throughout the recording. When Campo posted the recording to YouTube, viewers posted sexualized comments in response.

¶6 In June 2024, Campo signed a behavior agreement that he would not do any recording inside any judicial branch building, “to include meeting with probation.” Despite that agreement and several warnings from probation officers, Campo kept recording and posting his interactions with APD.

¶7 In January 2025, APD moved to modify Campo’s probation conditions to prohibit him from video- or tape-recording interactions with his APD team, or posting those recordings to social media. APD stated that Campo’s recording and posting of his APD team was a “significant distraction” and interfered with APD’s ability to “address significant issues” with Campo and to perform their duties because officers were hesitant to speak with Campo about private or sensitive matters. APD argued Campo’s actions violated the court rule ensuring confidentiality of “diagnostic evaluations, psychiatric and psychological reports, medical reports, alcohol screening and treatment reports, social studies, probation supervision histories and any other records maintained as the work product of pretrial services staff, probation officers and other staff for use by the court.” Ariz. R. Sup. Ct. 123(d)(2)(A). APD alleged that, by posting his videos on YouTube, Campo subjected one officer to “sexual and lewd comments.” APD also argued that Campo’s posted videos discuss his convictions of sexual offenses involving a fourteen-year-old victim, which “may harm the victim.”

¶8 Campo opposed APD’s motion. He argued that Maricopa County Superior Court Administrative Order 2019-027 (“AO 2019-027”)— which prohibits the public from recording in court facilities—violated his “rights to free speech under the First Amendment and the Arizona Constitution.” He also argued that the proposed modifications would violate his equal protection rights, claiming he “is entitled to receive the same treatment under the law as exercised by the President of the United States” to “criticize government officials without restriction or fear of reprisal.” APD did not allege a probation condition violation in its motion, which Campo maintained must occur before his conditions could be modified. APD’s arguments for modifying his conditions, Campo argued,

1 Although described in superior court testimony, the video is not part of

the record.

3

were unrelated to the objectives of probation (rehabilitation and public safety) and thus could not support a modification.

¶9 In April 2025, following oral argument, the court granted APD’s motion in part and modified Campo’s probation conditions. The court affirmed the validity of AO 2019-027 and ordered the following:

THE COURT FINDS probation offices are Maricopa County Superior Court facilities which are covered by this administrative order and as such the probationer is prohibited from the “use of cameras of any type to photograph or take a video or audio recording of the inside areas of a court facility.” [the “Filming in Court Facilities Condition”]

Moreover, IT IS FURTHER ORDERED precluding the probationer from filming, recording and/or broadcasting any portion of any therapy, testing (including polygraphs) and/or any other probationer in any sort of therapeutic or counseling setting. [the “Filming in Therapy Condition”] The Court finds this to be a necessary restriction in order to maintain the integrity of the therapeutic and monitoring processes, not just for the probationer but other probationers in similar situations. The Court also finds other probationers who are in therapeutic settings have some expectation of privacy that what is discussed in therapy will not be broadcast to the general public by the probationer.

Defendant may continue to audio record only any interaction with probation personnel or others in open public places and his home. Due to safety reasons of the probation personnel he is specifically prohibited from video recording and/or disseminating any video recording in any way. [the “Filming Probation Officers Condition”]

IT IS FURTHER ORDERED directing the probationer to immediately remove any video recording that is posted online that was recorded within any probation office, treatment and/or testing facility as well as the video recording of the probation[] [officer’s] private area. [the “Video Depublication Condition”]

IT IS FURTHER ORDERED that these orders are a term and condition of probation. If the Defendant fails to abide by these

4

orders the probation department may elect to file a Petition to Revoke and any such Petition shall be handled by this division.

¶10 Campo filed a timely notice of appeal.

DISCUSSION

¶11 Campo argues that the modifications of his probation conditions violate his right to free speech because they prohibit him from creating and posting videos on the internet. He also argues that APD did not properly allege a probation condition violation, and that the new probation conditions violate his procedural due process and equal protection rights.

¶12 Campo contends we have appellate jurisdiction under A.R.S. § 13-4033(A)(3) (“An appeal may be taken by the defendant only from . . . [a]n order made after judgment affecting the substantial rights of the party.”). Although APD does not contest that we have jurisdiction under § 13-4033(A)(3), both parties agree that, in the event this section does not apply, we have the discretion to treat this matter as a special action under Ariz. R.P. Spec. Act. 11(e) (“If the reviewing court lacks jurisdiction over a direct appeal for reasons other than timeliness, the court may—on a party’s request or on its own initiative—treat the appeal as a special action and accept special action jurisdiction consistent with Rule 12.”). See A.R.S. § 12-120.21(A)(4).

¶13 We elect to treat this matter as a special action and, for several reasons, accept jurisdiction. See Ariz. R.P. Spec. Act. 12(a). First, there is no “equally plain, speedy, and adequate” remedy by appeal without jurisdiction under A.R.S. § 13-4033(A)(3). See Ariz. R.P. Spec. Act. 12(a), (b)(5). Additionally, the superior court’s order raises issues of first impression, “which are particularly appropriate for special action review,” regarding a probationer’s free speech rights under the Arizona Constitution. Dabrowski v. Bartlett, 246 Ariz. 504, 512, ¶ 15 (App. 2019); see Ariz. R.P. Spec. Act. 12(b)(3). Finally, the recurring conflict between the State’s public safety goals and probationers’ claimed free speech rights makes this an issue of statewide importance. Ariz. R.P. Spec. Act. 12(b)(4).

¶14 We requested and received supplemental briefing addressing the following question: “Does Article 2, Section 6 of the Arizona Constitution provide greater protection than the First Amendment to the United States Constitution for the speech of probationers in this context?” We also held oral argument.

5

I. APD Did Not Need to Allege a Probation Violation.

¶15 Campo argues that APD must have alleged he violated a probation condition before seeking modifications to his probation conditions. Whether the superior court has the authority to modify probation is a legal question that we review de novo. See State v. Korzuch, 186 Ariz. 190, 192 (1996). We review the superior court’s decision to modify probation for an abuse of discretion. State v. Dean, 226 Ariz. 47, 50, ¶ 7 (App. 2010).

¶16 “Where additional burdens are imposed on the probationer . . . the record must contain evidence that the probationer violated a condition of probation upon which to base the burden.” Burton v. Superior Court, 27 Ariz. App. 797, 800 (1977), questioned in State v. Contreras, 180 Ariz. 450, 453 (App. 1994) (“[R]ecent decisions of this court and a constitutional amendment on the subject of restitution have called the holding of Burton into question.”); but see A.R.S. § 13-901(C) (“The court, in its discretion, may . . . modify or add to [probation] conditions . . . .”); Ariz. R. Crim. P. 27.3(b)(1) (“The court may modify or clarify any condition or regulation of probation . . . .”). To the extent that Burton’s requirement of an additional burden remains good law, there is no additional burden here, meaning APD did not need to allege a probation violation to seek a modification to Campo’s probation conditions.

¶17 In Contreras, we considered whether the superior court’s modification of probation terms to include a condition to pay restitution was an additional burden. 180 Ariz. at 453. Contreras’s plea agreement included that he was required to pay restitution and set a limit on the restitution he may owe. Id. at 452. Contreras’s original probation terms did not include restitution, but the court later added a restitution obligation after a hearing. Id. at 452–53. We held that because the court was statutorily required to impose restitution and his probation term remained the same, no additional burden was imposed. Id. at 453–54.

¶18 Employing the reasoning of Contreras, we first consider the Filming in Court Facilities Condition. Under AO 2019-027, anyone— whether on probation or not—who enters a court facility is prohibited from filming without prior approval of the Presiding Judge. Campo was advised by his probation team that filming was not allowed in judicial buildings, and he signed a behavior agreement to that effect. Like in Contreras, Campo had to follow AO 2019-027 regardless of any probation condition. No additional burden was imposed, so APD did not need to allege a violation.

6

¶19 The same is true of the Filming in Therapy Condition. By rule, psychiatric and psychological reports and other records maintained as the work product of probation officers and other staff for use by the court “shall be withheld from public inspection.” Ariz. R. Sup. Ct. 123(d)(2)(A). As part of Campo’s polygraph testing, he signed an agreement not to record the testing. Under his signed agreement and Rule 123, recording and dissemination of the therapy records, including the polygraph testing, are already restricted. Campo must comply with this requirement, even if it is not a probation condition. For that reason, there is no additional burden here.

¶20 We need not reach whether an additional burden is imposed on Campo through the other conditions because, on the record presented, they cannot stand, as described below.

II. Campo Did Not Abandon His Article 2, Section 6 Argument.

¶21 APD argues that Campo abandoned his Article 2, Section 6 argument by not sufficiently developing it in his opening brief. When a party fails to bring an argument in their opening brief, it may be waived. Dawson v. Withycombe, 216 Ariz. 84, 111, ¶ 91 (App. 2007). Whether to apply waiver is discretionary. City of Tempe v. Fleming, 168 Ariz. 454, 456 (App. 1991).

¶22 APD cites State v. Jean, which states that “[m]erely referring to the Arizona Constitution without developing an argument is insufficient to preserve a claim that it offers greater protection than the Fourth Amendment.” 243 Ariz. 331, 342, ¶ 39 (2018). But Campo did more than that. Both before the superior court and in his briefs to us, Campo cited State v. Stummer’s holding that Article 2, Section 6 provides greater protection for free speech than does the First Amendment. 219 Ariz. 137, 143, ¶ 17 (2008). Campo also developed an argument, by citing federal and Arizona case law, that the conditions violated his right to free speech.

¶23 When free speech rights are asserted under both the Arizona and United States Constitutions, the Arizona Supreme Court has directed courts to first analyze the issue under Arizona’s Constitution. Nearly 40 years ago, the Arizona Supreme Court noted that “Arizona enacted its declaration of rights [in the Arizona Constitution] before the United States Supreme Court adopted the doctrine of incorporation, applying the federal Bill of Rights [including the First Amendment] to the states,” starting as relevant here in 1927. Mountain States Tel. & Tel. Co. v. Ariz. Corp. Comm’n, 160 Ariz. 350, 356 & n.12 (1989) (citing Fiske v. Kansas, 274 U.S. 380 (1927)).

7

This, our supreme court directed, shows the framers of the Arizona Constitution meant it to be “the main formulation of rights and privileges conferred on Arizonans.” Id. at 356 (citing John D. Leshy, The Making of the Arizona Constitution, 20 Ariz. St. L.J. 1, 81 (1988)); see also Ctr. for Ariz. Pol’y Inc. v. Ariz. Sec’y of State, ___ Ariz. ___, ___, ¶ 28, 592 P.3d 75, 88 (2026) (“When Arizonans at the 1911 election adopted our constitution, including its declaration of individual rights, they intended [Article 2, Section 6] to provide the primary protection for free-speech and free-press rights.”).

¶24 Because Campo adequately raised that his rights to free speech guaranteed by the Arizona and United States Constitutions were violated, “we first consult our [Arizona] constitution.” Mountain States, 160 Ariz. at 356.

III. Campo’s Equal Protection Rights Were Not Violated.

¶25 Campo argues that his right to equal protection was violated because others with prior convictions are able to exercise their First Amendment rights by using social media. Equal protection under the federal and Arizona constitutions is “essentially the same.” State v. Coleman, 241 Ariz. 190, 192, ¶ 7 (App. 2016) (quoting State v. Lowery, 230 Ariz. 536, 541, ¶ 13 (App. 2012)). Equal protection requires that those in similar circumstances be treated equally. State v. Navarro, 201 Ariz. 292, 298, ¶ 25 (App. 2001).

¶26 Campo has not shown that his probation conditions were imposed in a discriminatory manner. See State v. Scott, 17 Ariz. App. 183, 185 (1972) (rejecting argument that equal protection was violated when discrimination was not shown). Campo contends that others with prior convictions are able to document their lives on social media and he should be able to as well. But he does not show how these people are situated similarly to him. See Navarro, 201 Ariz. at 298, ¶ 25. The individual circumstances of each probationer may be different based on their offenses and treatment needs. On this record, Campo has not shown a violation of his equal protection rights.

IV. Campo’s Procedural Due Process Rights Were Not Violated.

¶27 Campo argues that his right to procedural due process was violated because the grounds APD asserted in requesting the modification had “no bearing” on probation objectives. Due process requires notice and a hearing when probation conditions are modified. Korzuch, 186 Ariz. at 193. Campo does not argue a lack of notice, a hearing, or an opportunity

8

to be heard. As to his argument that there was no reasonable connection between the conditions and the goals of probation, we address that below.

V. In Some Circumstances, the Arizona Constitution Provides Greater Free Speech Protection than the First Amendment.

¶28 Article 2, Section 6 of the Arizona Constitution states: “Every person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right.” The language of this provision is broader than the First Amendment to the United States Constitution, which states that “Congress shall make no law . . . abridging the freedom of speech, or of the press.” U.S. Const. amend. I. While the First Amendment “is phrased as a constraint on government,” Article 2, Section 6 “is a guarantee of the individual right to ‘freely speak, write, and publish,’ subject only to constraint for the abuse of that right.” Brush & Nib Studio, LC v. City of Phoenix, 247 Ariz. 269, 281, ¶ 45 (2019) (quoting Stummer, 219 Ariz. at 142, ¶ 14) (clarified by Ctr. for Ariz. Pol’y Inc., ___ Ariz. at ___, ¶ 30, 592 P.3d at 89). Arizona’s appellate courts are seldom asked to interpret this guarantee in the Arizona Constitution, Stummer, 219 Ariz. at 142, ¶ 16, and this appears to be the first request to do so in the context of probation conditions.

¶29 “[B]y its terms, the Arizona Constitution provides broader protections for free speech than the First Amendment.” Brush & Nib, 247 Ariz. at 281, ¶ 45. But our supreme court has recently held that “our Constitution stands on its own terms and may be equally, more, or less protective than the U.S. Supreme Court’s interpretation of analogous federal provisions.” Ctr. for Ariz. Pol’y Inc., ___ Ariz. at ___, ¶ 30, 592 P.3d at 89. Article 2, Section 6 “and the First Amendment generally, but not invariably, offer the same protection for speech and the press.” Id. at ___, ¶ 24, 592 P.3d at 87. When, as here, a party raises challenges under both Article 2, Section 6 and the First Amendment, our courts apply “the same principles under both challenges, when warranted.” Id. at ___, ¶ 25, 592 P.3d at 88. But when “our state provision justifies a departure,” we use an “Arizona-specific standard of review, anchored on the meaning of” Article 2, Section 6. Id. at ___, ¶¶ 25, 26, 592 P.3d at 88.

¶30 Challenges under Article 2, Section 6 “are evaluated through an Arizona-specific framework rooted in the Clause’s text, context, and public meaning at statehood.” Id. at ___, ¶ 59, 592 P.3d at 96. The test has two steps.

9

¶31 In the first step, we “determine whether the expression at issue is protected.” Id. Arizona courts generally follow “federal interpretations of the United States Constitution” in determining whether speech is unprotected. Stummer, 219 Ariz. at 142, ¶ 16. If the speech is unprotected, the inquiry ends. Ctr. for Ariz. Pol’y Inc., ___ Ariz. at ___, ¶ 32, 592 P.3d at 90.

¶32 In the second step, we “evaluate whether the challenged law prevents people from ‘freely’ engaging in that expression.” Id. at ___, ¶ 59, 592 P.3d at 96. Article 2, Section 6 “generally forbids prior restraints and compelled speech laws, but it accommodates reasonable regulations enacted pursuant to the state’s regulatory authority or constitutional directives.” Id.

¶33 Our supreme court has also adopted Arizona-specific tests for evaluating time, place, and manner restrictions under Article 2, Section 6. See id. Content-neutral time, place, and manner restrictions are evaluated under the Mountain States test. See id. at ___, ¶ 50, 592 P.3d at 94. Content- based time, place, and manner restrictions are governed by the Stummer test. See id. at ___, ¶ 51, 592 P.3d at 94.

¶34 Under the First Amendment, time, place, and manner restrictions are permissible when the restrictions (1) are content neutral; (2) “are narrowly tailored to serve a significant governmental interest”; and (3) “leave open ample alternative channels for communication of the information.” Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (quoting Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984)).

¶35 Arizona’s Mountain States test incorporates the first two elements of the First Amendment test, but replaces the third element— ”ample alternative channels”—with a different question: whether the restriction “regulate[s] with narrow specificity so as to affect as little as possible the ability of the sender and receiver to communicate.” Mountain States, 160 Ariz. at 358; see Ctr. for Ariz. Pol’y Inc., ___ Ariz. at ___, ¶ 50, 592 P.3d at 94. Narrow specificity does not require the “least restrictive means.” See Stummer, 219 Ariz. at 143–44, ¶¶ 21–22.

¶36 Arizona’s Stummer test applies to content-based time, place, and manner restrictions. Ctr. for Ariz. Pol’y Inc., ___ Ariz. at ___, ¶ 51, 592 P.3d at 94. “First, once the challenger shows interference with expression, the state must demonstrate that the regulation targets secondary effects of the speech rather than suppressing protected expression.” Id. (citing Stummer, 219 Ariz. at 144, ¶ 25). “Second, if the state satisfies that showing,

10

courts then assess whether the regulation (1) protects a substantial governmental interest; (2) significantly furthers that interest; and (3) does not unduly burden protected expression.” Id. (citing Stummer, 219 Ariz. at 144–45, ¶ 27).

¶37 The cases interpreting Article 2, Section 6 establish another important principle under the Arizona Constitution: something more than governmental inconvenience is necessary to support a restriction on speech. Id. at ___, ¶ 47, 592 P.3d at 94 (“Although courts may sometimes accommodate competing constitutional interests, such as the right to a fair trial, they may not dilute speech protections merely for reasons of administrative ease, policy preference, or other regulatory convenience.”); Stummer, 219 Ariz. at 145, ¶ 28 (“[G]overnmental convenience[] will not justify suppression of speech.”); Mountain States, 160 Ariz. at 358 (“[G]overnmental convenience and certainty cannot prevail over constitutionally guaranteed rights.”); see also New Times, Inc. v. Ariz. Bd. of Regents, 110 Ariz. 367, 372 (1974) (“It is well settled that minor matters of public inconvenience or annoyance cannot be transformed into substantive evils of sufficient weight to warrant the curtailment of liberty of expression by legislative preferences or beliefs.”).

¶38 We next apply these standards to Campo’s arguments.

VI. Campo’s Creation of Video Recordings and His Posting of Those Recordings on the Internet Are Speech Subject to Protection.

¶39 APD argues that the “being responsible for the abuse of that right” clause in Article 2, Section 6 permits the restrictions on Campo because he has “abused” his free speech rights. We reject this argument. Since statehood, that clause has applied only to unprotected speech. See Stummer, 219 Ariz. at 142, ¶ 16 (“For example, in being ‘responsible for the abuse’ of the right to speak, write, and publish on ‘all subjects,’ one may be held liable for defamation, notwithstanding the right to ‘freely speak.’”); Yetman v. English, 168 Ariz. 71, 73, 82 (1991) (holding in a defamation action that Article 2, Section 6 “undeniably imposes responsibility on those exercising their rights to free speech for any abuse thereof”); Truax v. Bisbee Loc., No. 380, Cooks’ & Waiters’ Union, 19 Ariz. 379, 394 (1918) (holding that Article 2, Section 6 does not bar an action for defamation); see also Ctr. for Ariz. Pol’y Inc., ___ Ariz. at ___, ¶ 56, 592 P.3d at 95–96 (describing “abuses” of the free speech right as “defamation, fraud, or other harmful acts”). APD made no argument to the superior court that Campo’s filming, or his later posting of the videos on the internet, constituted unprotected speech. See United States v. Stevens, 559 U.S. 460, 468–69 (2010) (noting unprotected

11

speech is limited to obscenity, defamation, fraud, incitement, and speech integral to criminal conduct); Stummer, 219 Ariz. at 142, ¶ 16 (holding that the analysis of unprotected speech is the same under the First Amendment and Article 2, Section 6).

¶40 Video recording is a form of protected speech under the First Amendment. Project Veritas v. Schmidt, 125 F.4th 929, 942 (9th Cir. 2025) (“It is well established that audio recordings and audiovisual recordings are generally entitled to First Amendment protection.”). The First Amendment “applies to creating, distributing, [and] consuming speech.” Brown v. Ent. Merchs. Ass’n, 564 U.S. 786, 792 n.1 (2011).

¶41 The ability to publish material on the internet is likewise speech subject to protection under the First Amendment. “A fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more.” Packingham v. North Carolina, 582 U.S. 98, 104 (2017). Social media websites “can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard.” Id. at 107. For that reason, “to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights.” Id. at 108.

¶42 The same is true under the Arizona Constitution. Because Arizona courts generally follow “federal interpretations of the United States Constitution” in evaluating unprotected speech under the Arizona Constitution, Stummer, 219 Ariz. at 142, ¶ 16, the First Amendment protection of video recording and posting material on the internet suggests those activities are also protected under Article 2, Section 6.

¶43 Furthermore, because Article 2, Section 6 “guaranteed the continued exercise of free-speech rights Arizonans already enjoyed before statehood,” we can look to the rights Arizonans exercised at statehood to illuminate the scope of Article 2, Section 6. Ctr. for Ariz. Pol’y Inc., ___ Ariz. at ___, ¶ 28, 592 P.3d at 89; see also id. at ___, ¶¶ 37–41, 592 P.3d at 91–92 (using statehood-era statutes and ordinances to describe the contemporary understanding of Article 2, Section 6’s scope).

¶44 The right of newspapers to freely publish factual accounts of governmental activities was well established before the adoption of the Arizona Constitution. Indeed, the Arizona Penal Code of 1887 specifically protected newspaper reporters from libel prosecution “for a fair and true report of any judicial, legislative or other public official proceeding[.]” Ariz.

12

Penal Code, Title VIII, ch. 10, § 410 (1887); see also Ariz. Penal Code, Title VIII, ch. 10, § 226 (1901) (same). Following statehood, the First Arizona Legislature reaffirmed this principle by passing an identical statute. Ariz. Penal Code, Title VIII, ch. 10, § 227 (1913).

¶45 Although Campo is not a newspaper reporter, his video recordings of his interactions with APD and his publication of those recordings on the internet are akin to the protected activities of a statehood- era newspaper reporter in reporting on the proceedings of judicial employees. Cf. Chatrie v. United States, 609 U.S. ___, ___, 146 S. Ct. 2193, 2222 (2026) (Gorsuch, J., concurring) (“[T]he First Amendment protects speech over the internet today no less than it did speech delivered in the town square in 1791.”). Given the Arizona Constitution’s robust protection of “free-speech and free-press rights,” Ctr. for Ariz. Pol’y Inc., ___ Ariz. at ___, ¶ 28, 592 P.3d at 88, Campo’s recording and posting of videos commenting on his treatment as a probationer are speech subject to protection under Article 2, Section 6.

VII. Probationers Have Constitutionally Protected Free Speech Rights.

¶46 The fact that Campo’s recording and posting of videos are speech subject to protection does not end our inquiry. Probationers are subject to reduced free speech rights. Wilson v. Higgins, 251 Ariz. 282, 287,

¶ 24 (2021) (“[P]robationers possess ‘reduced liberty interests.’” (quoting Korzuch, 186 Ariz. at 193)). Probationers possess “conditional liberty properly dependent on the observance of special (probation) restrictions.” State v. Alfaro, 127 Ariz. 578, 579 (1980) (quoting Morrissey v. Brewer, 408 U.S. 471, 480 (1972)). Much like convicted felons can have their rights to vote or possess guns suspended, those on probation can have their free speech rights curtailed.

¶47 As we noted nearly 50 years ago, probation “[c]onditions that unquestionably restrict otherwise inviolable constitutional rights may properly be subject to special scrutiny to determine whether the limitation does in fact serve the dual objectives of rehabilitation and public safety.” State v. Davis, 119 Ariz. 140, 141–42 (App. 1978) (quoting United States v. Consuelo-Gonzalez, 521 F.2d 259, 265 (9th Cir. 1975)). In determining whether a condition is valid, “[t]he question is whether there is a reasonable nexus between the conditions imposed and the goals to be achieved by the probation.” Id. at 142. “Thus, where a condition impinges on but does not violate the defendant’s fundamental rights, the condition may still be constitutional.” State v. Nickerson, 164 Ariz. 121, 123 (App. 1990); see also State v. Kessler, 199 Ariz. 83, 88, ¶ 21 (App. 2000) (“Courts have consistently

13

upheld imposition of conditions of probation that restrict a defendant’s freedom of speech and association when those conditions bear a reasonable relationship to the goals of probation.” (quoting United States v. Turner, 44 F.3d 900, 903 (10th Cir. 1995))).

¶48 Campo and APD agree that Davis sets forth the applicable standard. Accordingly, we apply Davis in addressing Campo’s arguments 2

under Article 2, Section 6 of the Arizona Constitution.

VIII. On the Record Presented, Some of Campo’s Probation Conditions Cannot Withstand Constitutional Scrutiny.

¶49 In addressing Campo’s argument that his modified probation conditions violate Article 2, Section 6 and the First Amendment, we review the conditions de novo. State v. McGill, 213 Ariz. 147, 159, ¶ 53 (2006).

A. “[P]robationer is prohibited from the ‘use of cameras of any type to photograph or take a video or audio recording of the inside areas of a court facility’” – the Filming in Court Facilities Condition.

¶50 AO 2019-027 prohibits filming in court facilities without the prior approval of the Presiding Judge. APD contends that Campo does not have standing to contest the constitutionality of AO 2019-027 because he only complains of a generalized harm. To have standing, Campo must “allege a distinct and palpable injury.” Sears v. Hull, 192 Ariz. 65, 69, ¶ 16 (1998). Alleging a generalized harm that is shared by “all or a large class of citizens generally is not sufficient to confer standing.” Id.

¶51 Here, Campo is exposed to probation violation consequences if he violates AO 2019-027, while the general public only faces having to delete the recording, removal from the building, or other sanctions by the court. See AO 2019-027. Thus, Campo has alleged a distinct and palpable injury, Hull, 192 Ariz. at 69, ¶ 16, meaning he has standing to challenge the constitutionality of AO 2019-027.

¶52 Campo argues that because Arizona is a one-party consent state, he may film any conversation he wishes if he (as one party to the conversation) consents to the recording. See A.R.S. § 13-3005 (criminalizing the interception of oral or electronic communications without the consent of either party to the communication). But the fact that it is not illegal to

2 In light of this agreement by the parties, we assume, but expressly do not

decide, that the Davis standard is consistent with Article 2, Section 6 of the Arizona Constitution.

14

record if one party consents to the recording does not mean that no restrictions on recording are permissible. Campo has failed to show that the prohibition of filming in court facilities is inconsistent with A.R.S. § 13-3005.

¶53 Campo also argues that a probation office is not a court building and thus not subject to AO 2019-027. We review the superior court’s interpretation of the administrative order de novo. See State v. Soria, 217 Ariz. 101, 102, ¶ 5 (App. 2007). We first look to the plain language of the administrative order to interpret it, and we give words their plain meanings. See id. at 102–03, ¶ 6; Hornbeck v. Lusk, 217 Ariz. 581, 583, ¶ 6 (App. 2008). AO 2019-027 prohibits filming in a “court facility.” Probation offices are court property, and probation officers are employed by the court. Probation offices therefore plainly fall within the common understanding of “court facilities.” The court did not err in finding that probation offices are covered by AO 2019-027.

¶54 Under the First Amendment, free speech activity on government property is subject to “forum analysis.”3 Korwin v. Cotton, 234 Ariz. 549, 554, ¶ 9 (App. 2014). “Under this analysis, the extent to which the government can control access to a particular forum depends upon the nature of the forum.” Id. Speech in “traditional public fora,” like parks and streets, receives the highest level of protection from government interference. Id. at 555, ¶ 14. In contrast, regulation of speech in “nonpublic fora”—property owned and controlled by the government that “is not by tradition or designation a forum for public communication”—is permissible so long as the restrictions are viewpoint neutral and reasonable. Id. at 555, ¶ 15 (citing Perry Educ. Ass’n v. Perry Loc. Educators’ Ass’n, 460 U.S. 37, 46 (1983)).

¶55 “Judicial and municipal complexes are not public fora.” United States v. Gileno, 350 F. Supp. 3d 910, 917 (C.D. Cal. 2018). Because courthouses are not public fora, restrictions on filming are permissible if they are: (1) viewpoint neutral and (2) reasonable in light of the purpose served by the forum. Hopper v. City of Pasco, 241 F.3d 1067, 1074–75 (9th Cir.

3 Because Campo has not argued that the analysis should be any different

under the Arizona Constitution, we assume without deciding that forum analysis is consistent with Article 2, Section 6. See Ino Ino, Inc. v. City of Bellevue, 937 P.2d 154, 163 (Wash. 1997) (finding that Washington’s identical free speech provision affords no “greater protection under the state constitution for speech in nonpublic fora” than the federal constitution), cited with approval in Ctr. for Ariz. Pol’y Inc., ___ Ariz. at ___, ¶ 24, 592 P.3d at 87–88.

15

2001). Thus, the lobby of a courthouse “may forbid all political rallies, but it may not forbid one party’s rallies while allowing another’s.” Sefick v. Gardner, 164 F.3d 370, 372 (7th Cir. 1998).

¶56 Both Campo and APD agree that this condition is viewpoint neutral. And Campo—just like every other member of the public—is prohibited from recording in any court facility regardless of his viewpoint.

¶57 The Filming in Court Facilities Condition is also reasonable. As AO 2019-027 sets forth, restricting recording on court property furthers the significant governmental interests in the security of court facilities, limiting disruptions to court operations, and providing a safe work environment to court staff and users of the court. Because the restriction here is viewpoint neutral and reasonable, it is permissible under both the Arizona Constitution and the First Amendment.

B. “[P]recluding the probationer from filming, recording and/or broadcasting any portion of any therapy, testing (including polygraphs) and/or any other probationer in any sort of therapeutic or counseling setting” – the Filming in Therapy Condition.

¶58 APD argues that Campo abandoned any argument on the Filming in Therapy Condition by not adequately addressing it in the opening brief. See Dawson, 216 Ariz. at 111, ¶ 91 (failing to bring argument in opening brief constitutes waiver). However, Campo broadly argues in his opening brief that the conditions restricting his use of social media violate his free speech rights. This condition prohibits Campo from broadcasting any portion of his therapy and thus impacts whether he may post his recordings on social media. Therefore, we do not treat this argument as waived.

¶59 The Filming in Therapy Condition is not subject to forum analysis because the condition prohibits Campo from filming therapy and testing regardless of where those activities take place. The parties agree, however, that this is a content-neutral time, place, and manner restriction. Because the Arizona test for these restrictions differs from the federal test, we analyze the restriction under both tests. See Ctr. for Ariz. Pol’y Inc., ___ Ariz. at ___, ¶¶ 25–26, 30–31, 592 P.3d at 88–90.

1. Article 2, Section 6 analysis

¶60 Under the Mountain States test, a time, place, and manner restriction is permissible when it: (1) is content neutral; (2) is narrowly tailored to advance a significant government interest; and (3) “regulate[s]

16

with narrow specificity so as to affect as little as possible the ability of the sender and receiver to communicate.” 160 Ariz. at 357–58. The parties agree the restriction is content neutral, so the first step is satisfied.

¶61 APD showed that it has a significant government interest in protecting the propriety of the polygraph testing so that other probationers may not view the recording and know which questions are asked prior to their polygraph test. APD also showed a significant interest in protecting the privacy of other therapy participants, so that their personal information is not shared with others and so they feel empowered to speak openly and honestly in therapy. The condition is narrowly tailored to meet those significant interests because “the state would have achieved its asserted interest ‘less effectively absent the regulation.’” Blankenship v. Louisville- Jefferson Cnty., Ky. Metro Gov’t, 162 F.4th 644, 658 (6th Cir. 2025) (quoting Reform Am. v. City of Detroit, 37 F.4th 1138, 1151 (6th Cir. 2022)).

¶62 The condition is also narrowly specific. Campo remains free to communicate with his intended audience about his therapy and testing, he simply cannot record those activities. There is no practical way to protect the privacy of probation materials and the privacy of other probationers other than restricting Campo from recording and broadcasting that information. The Filming in Therapy Condition is therefore narrowly specific, passes the Mountain States intermediate scrutiny test, and does not violate the Arizona Constitution. Ctr. for Ariz. Pol’y Inc., ___ Ariz. at ___, ¶ 49, 592 P.3d at 94 (“A law that survives scrutiny as a valid time, place, and manner regulation does not interfere with Arizonans’ right to ‘freely’ speak, write, and publish under the Speak Freely Clause and must be upheld.”).

2. First Amendment analysis

¶63 As noted supra ¶ 35, the first two steps of the federal analysis of time, place, and manner restrictions are the same as the Mountain States test. The Filming in Therapy Condition clears those two hurdles.

¶64 The Condition also meets the federal test’s third requirement. Campo has ample alternative channels for communication. Campo remains free to speak and record himself, outside of therapy, testing, and counseling settings, about his own experience in therapy, and post that on social media. See Weinberg v. City of Chicago, 310 F.3d 1029, 1041 (7th Cir. 2002) (“An adequate alternative does not have to be the speaker’s first choice.”).

3. The Condition is valid under both the State and Federal Constitutions.

17

¶65 Because the Filming in Therapy Condition is a valid, content- neutral time, place, and manner restriction under both the state and federal tests, it is permissible under both the Arizona Constitution and the First Amendment.

C. “Defendant may continue to audio record only any interaction with probation personnel or others in open public places and his home. Due to safety reasons of the probation personnel he is specifically prohibited from video recording and/or disseminating any video recording in any way” – the Filming Probation Officers Condition.

¶66 As discussed above, the Filming in Court Facilities Condition and the Filming in Therapy Condition are grounded in generally applicable rules and would pass constitutional muster even if they were applied to the public in general. The same cannot be said for the Filming Probation Officers Condition.

¶67 Article 2, Section 6 “tolerates no censorship or restraint— major or minor—on the right to speak, write, or publish on any subject except through the state’s proper exercise of its regulatory authority and in accordance with the Constitution’s directives.” Ctr. for Ariz. Pol’y Inc., ___ Ariz. at ___, ¶ 47, 592 P.3d at 93. This Condition prospectively prohibits Campo from video recording and posting those videos on the internet. Article 2, Section 6 “generally forbids prior restraints.” Id. at ___, ¶ 59, 592 P.3d at 96.

¶68 The filming of government officials in public is also protected by the First Amendment. Glik v. Cunniffe, 655 F.3d 78, 83 (1st Cir. 2011) (collecting cases). Public employees going about the public’s business in public should generally expect to do so under the public’s eye. Law enforcement officers routinely record their interactions with the public on body-worn cameras and those recordings are public records “presumed open to the public for inspection.” Smith v. Town of Marana, 254 Ariz. 393, 397, ¶ 11 (App. 2022) (quoting KPNX-TV v. Superior Court, 183 Ariz. 589, 592 (App. 1995)). “This approach serves ‘to open government activity to public scrutiny.’” Id. (quoting Lake v. City of Phoenix, 222 Ariz. 547, 549, ¶ 7 (2009)).

¶69 A general prohibition on recording APD personnel in public fora would likely not survive a challenge by a non-probationer under either the Arizona Constitution or the First Amendment. But Campo is on probation. Because of that fact, his rights are subject to restriction in ways that would not be permissible as applied to others. For the court to impose

18

those restrictions, however, there must be “a reasonable nexus between the conditions imposed and the goals to be achieved by the probation.” Davis, 119 Ariz. at 142.

¶70 APD attempts to justify the condition by asserting that the Probation Officer Video was a surreptitious recording that violated A.R.S. § 13-3019(A)(2), which criminalizes non-consensual video recordings that “directly or indirectly capture[] or allow[] the viewing of the person’s genitalia, buttock or female breast, whether clothed or unclothed, that is not otherwise visible to the public.” But APD made no such argument to the superior court.4 And even if this court was to consider the argument for the first time here, the superior court made no findings about the video and did not articulate any link between the Probation Officer Video and the Filming Probation Officers Condition.

¶71 The only justification offered to the superior court by APD in support of the Recording Probation Officers Condition was “officer safety.” APD’s argument focused on the fact that people other than Campo had posted “sexual and lewd comments” in response to the Probation Officer Video. But those who produce online content are generally not responsible for the comments of others in reaction to that content. See Shiamili v. Real Est. Grp. of N.Y., Inc., 952 N.E.2d 1011, 1018–19 (N.Y. 2011) (discussing § 230 of the Communications Decency Act, 47 U.S.C. § 230). Although APD argues that Campo “liked” some of the sexual and lewd comments, it failed to articulate how these “likes” adopted the speech of the commenters, imperiled officer safety, or justified a blanket prohibition on video recording APD personnel.

¶72 Moreover, the condition permits Campo to “audio record only any interaction with probation personnel or others in open public places and his home,” a condition that arguably prohibits Campo from video recording people other than APD personnel in public places or in Campo’s home. APD conceded at oral argument that this “or others” aspect of the condition is not justified.

¶73 Although probation officer safety is unquestionably an important interest related to the goals of probation, APD has not shown how prohibiting Campo from video recording (while allowing him to audio record) his interactions with probation personnel in public and in his own

4 Because § 13-3019(A)(2) was not before the superior court, we express no

opinion on whether that statute is consistent with Article 2, Section 6 of the Arizona Constitution or the First Amendment.

19

home furthers any such safety interest. As such, based on the record presented, the imposition of the Filming Probation Officers Condition violates both Article 2, Section 6 of the Arizona Constitution and the First Amendment to the United States Constitution. That condition is vacated.5

D. “[D]irecting the probationer to immediately remove any video recording that is posted online that was recorded within any probation office, treatment and/or testing facility as well as the video recording of the probation[] [officer’s] private area” – the Video Depublication Condition.

¶74 Campo may be restricted from recording in court facilities and in therapy, treatment, or testing. Accordingly, requiring Campo to remove videos recording such interactions is not a violation of his Article 2, Section 6 or First Amendment rights.

¶75 However, because the Filming Probation Officers in Public Condition cannot be sustained on this record, the Video Depublication Condition may also run afoul of Article 2, Section 6 and the First Amendment. Because the record does not contain a copy of the Probation Officer Video, we are unable to make an independent evaluation of whether that video is protected speech. From the record, all we can discern is that the camera was focused on the probation officer’s clothed crotch area and the video was recorded in Campo’s home. The superior court made no factual findings about the video and conducted no legal analysis regarding whether the video was protected or unprotected speech.

¶76 Filming government officials in public fora is protected speech. Supra ¶¶ 67–68. The fact that the government finds the particular speech offensive or disagreeable does not strip it of that protection. See Snyder v. Phelps, 562 U.S. 443, 458 (2011).

¶77 Because Article 2, Section 6 states that “[e]very person may freely speak, write, and publish on all subjects,” we begin with the presumption that the video is protected speech. (Emphasis added). Given Campo’s probation status, the court can restrict that speech, but only to “serve the dual objectives of rehabilitation and public safety” and when there is “a reasonable nexus between the conditions imposed and the goals to be achieved by the probation.” Davis, 119 Ariz. at 141–42. To overcome

5 On remand, the court retains jurisdiction to modify Campo’s probation

conditions consistent with this opinion, without the need for a petition alleging a violation of probation conditions.

20

the presumption that Campo’s creation and publishing of video recordings is protected speech, the superior court must make specific findings on how this video meets the Davis test or is otherwise unprotected. Because the record contains no such findings, we vacate the Video Depublication Condition, at least with respect to the Probation Officer Video.

¶78 On remand, the superior court is free to reconsider its order with the necessary factual findings or receive other evidence regarding the Probation Officer Video.

CONCLUSION

¶79 In the exercise of our discretion, we accept special action jurisdiction and grant relief in part. We affirm the superior court’s order imposing the Filming in Court Facilities Condition and the Filming in Therapy Condition. We affirm the portion of the Video Depublication Condition pertaining to videos taken in court facilities and in therapy, treatment, or testing. We vacate the portion of the Video Depublication Condition pertaining to the Probation Officer Video and the superior court’s order imposing the Filming Probation Officers Condition.

MATTHEW J. MARTIN • Clerk of the Court FILED: JR

21