Mitchell and Mayes ask judge to toss out law against prosecutions targeting First Amendment rights

Republican Maricopa County Attorney Rachel Mitchell and Democratic Arizona Attorney General Kris Mayes are asking a judge to overturn a state law designed to prevent criminal prosecutions that infringe on First Amendment protections.

Thirty-eight states currently have some form of anti-SLAPP, or strategic actions against public participation, law, which allow defendants to seek the dismissal of lawsuits filed to stifle free speech and other Constitutional rights. In 2022, the Arizona Legislature amended the law, making it the first state to expand anti-SLAPP protections to criminal cases.

In a filing in a Maricopa County Justice Court, the Maricopa County Attorney’s Office argued Arizona’s law violates the state Constitution and is overly broad. Deputy County Attorney Philip Garrow filed the challenge in the ongoing trespassing case against 68 pro-Palestinian demonstrators arrested at Arizona State University last year.

Attorneys are trying to have the charges dismissed under the anti-SLAPP law, and a hearing on that motion is scheduled for Nov. 17.

The County Attorney argues the law violates the separation of powers laid out by the Arizona Constitution by allowing lawmakers to co-opt rulemaking powers reserved for the state Supreme Court and by allowing judges to override top law enforcement officials’ discretion to bring charges in criminal cases.

“Fourth, the statute’s ‘substantially motivated’ term is vague and overbroad,” Garrow wrote, referring to the law’s requirement that defendants prove “the legal action was substantially motivated by a desire to deter, retaliate against or prevent the lawful exercise of a constitutional right.”

Garrow also claimed the law violates the Victims Bill of Rights, state constitutional rights for victims of crime approved by voters in 1990.

Mayes joins in

The Attorney General filed a brief in support of Mitchell’s request and specifically targeted the 2022 law that expanded anti-SLAPP protections to criminal cases.

Mayes’ office argued the law is too broad and open to interpretation — mirroring arguments her prosecutors made before a Maricopa County Superior Court Judge in the so-called fake electors case.

“These novel provisions have created substantial confusion over their application, and courts have employed varying standards to decide cases,” Assistant Attorney General Nick Klingerman wrote in a brief.

A spokesman for the Attorney General said Mayes is not taking a position on the case itself against the ASU protestors and is only opposing the anti-SLAPP law.

Mayes’ opposition to the law is well known.

“Obviously we're up against an anti-SLAPP law that was designed to try to protect these fake electors from ever being held accountable,” Mayes said earlier this month, accusing Republican lawmakers of passing the expansion in 2022 to protect the so-called fake electors, who are accused of forging documents to fraudulently claim President Trump defeated former President Joe Biden in Arizona’s 2020 presidential election.

Maricopa County Judge Sam Myers allowed defendants in that case to pursue an anti-SLAPP defense, though the entire case is currently on hold as Mayes’ challenges a ruling sending it back to a grand jury.

“Attorney General Mayes filed an amicus brief in this case because she believes the criminal anti-SLAPP law is a seriously flawed statute,” Mayes’ spokesman Richie Taylor said in an email. “She is deeply concerned that this law – passed by soft-on-crime Republicans in the Legislature — will have sweeping consequences for criminal prosecutions in Arizona beyond this specific case.”

But it's not just Republican lawmakers who favor the law.

Earlier this year, GOP lawmaker Alexander Kolodin’s failed attempt to expand the law even further won some bipartisan support. That included backing from a legal advocacy group that argued — months before the ASU arrests — that anti-SLAPP protections could be used to defend protestors unjustly targeted by police.