By Susan Bassi and Fred Johnson
A judge has thrown out a civil harassment lawsuit and temporary restraining order that San Jose City Councilmember Peter Ortiz obtained against a local social media journalist. Ortiz sought to use the courts to punish and silence political speech critical of him made by Robert Saenz who publishes local news and information on his popular Instagram page, East Side San Jose Times (@ESSJTimes).
The court verdict means Ortiz will have to pay the legal expenses of Saenz for violating the journalist’s First Amendment rights.
Santa Clara County Superior Court Judge Eric Geffon delivered the loss to Ortiz, ruling against him and throwing the temporary restraining order out of court after an anti-SLAPP motion was filed on Saenz’s behalf by Orange County attorney Patrick Evans. The motion asserted that the 
online speech Councilmember Ortiz claimed in court filings was harassment was instead of political speech protected by the First Amendment. The judge agreed.
“[I]t is [Saenz’s] speech that forms the basis of [Ortiz’s] claims. [Ortiz] exclusively cites [Saenz’s] social media posts as the basis for the requested order,” Judge Geffon wrote in his court order dismissing Ortiz’s restraining order request. “Those posts are related to issues of public interest.”
The judge emphasized that Saenz’s posts, whether offensive or not, were political speech. The United States Supreme Court has long considered political speech to be at the core of the First Amendment. “The comments made are related to who [Saenz] believes should be serving on the City Council and what policies he believes they are, or should be pursuing,” Geffon wrote.
City Councilmember Oath Applies to the First Amendment
Elected officials, including San Jose City Councilmember Peter Ortiz, take an oath of office that begins:
“I [Peter Ortiz] do solemnly swear that I will support and defend the Constitution of the United States and the Constitution of the State of California against all enemies, foreign and domestic; that I will bear true faith and allegiance to the Constitution of the United States and the Constitution of the state of California…”
Saenz’s attorney, Pat Evans, argued that speech Saenz engaged as @ESSJTimes, including Saenz calling Ortiz a “groomer” and “brown puppet,” may not have been nice, but given Ortiz’s standing as a public official, the speech was protected under the First Amendment.
David Loy, Legal Director for the First Amendment Coalition, told the Vanguard that political speech and opinion are protected by the First Amendment and California’s Constitution. “Political speech is a rough and tumble game. If politicians can’t stand the heat, they need to get out of the kitchen,” Loy said.
“Political speech is a rough and tumble game. If politicians can’t stand the heat, they need to get out of the kitchen.” -David Loy, First Amendment Coalition.
The original, temporary restraining order (TRO) against Saenz was issued by Court Commissioner Thai Van Dat. As previously reported by the Vanguard, the order prohibited Saenz from owning guns, or going near Ortiz, his girlfriend, and campaign manager Brenda Zendejas. The order also restrained Saenz from publishing “defamatory statements” about Ortiz and Zendejas, or using the elected official’s name, image, likeness, or other references in posts “in connection w/crimes against children.”
First Amendment expert Loy pointed out that the order issued by Van Dat constituted prior restraint on speech, a prohibited form of government censorship.
Politicians and Press on Social Media
Peter Ortiz took his oath of office on January 10, 2023. Six months later he published a post on X (formerly known as Twitter) commenting on other “attacks” he claimed he had been subjected to while stating he remained committed to submitting legislation to “strengthen freedom of speech protections to represent our communities.”
Five months after Ortiz obtained a TRO against Saenz, a judge ruled it violated the First Amendment.
Peter Ortiz’s political campaign for San Jose City Council, Seat 5, was endorsed by the San Jose Mercury News. The newspaper reported on the temporary restraining order but has not reported Ortiz’s loss or the termination of the TRO.
At the time the TRO was granted, the Mercury had 30,400 followers on Instagram. @ESSJTimes had 66,800. However, while the TRO was pending, @ESSJTimes grew to 85,800 followers on Instagram as the Mercury’s account was essentially stagnant, growing by just 300 followers.
The migration of local news consumers from mainstream to social media mirrors national trends observed in how residents, workers, voters, and jurors obtain their local news and information as the 2024 election cycle gains momentum.
David vs. Goliath Free Speech Legal Battle
As the nation emerged from the global pandemic, local politicians faced public scrutiny regarding their management of homelessness, evictions, school closures, policing, and mental health challenges. In his inaugural year as a Councilmember, Peter Ortiz opted to pursue legal action in response to his critics and circulation of images portraying him adorned with a poop emoji on social media.
Days after Ortiz’s harassment order was terminated, San Jose Mayor Matt Mahan’s security detail was attacked during an interview Mahan had with KRON News on a public sidewalk. The attack led to an arrest and the alleged attacker facing criminal charges.
Ortiz’s request for a restraining order took valuable court resources that meant others were moved to the back of the judicial line.
Saenz, a long time East Side San Jose resident, has openly discussed his Mexican heritage and upbringing in San Jose’s Evergreen Vietnamese community on his social media platform. However, it was his criticism of Ortiz on @ESSJTimes that opened the door for a local David vs. Goliath free speech legal battle.
“The legal system can be an emotionally and financially crushing place when misused by people in power like Peter Ortiz.” – Robert Saenz, @ESSJTimes.
Saenz expressed gratitude for Judge Geffon’s order upholding the First Amendment and for his attorney, Patrick Evans. He recognizes the challenges faced by those navigating the courts without legal representation, describing it as potentially “soul crushing.”
“Peter Ortiz misused his power and disrespected those who put him in office.” Robert Saenz told the Vanguard. “He tried to silence criticism that came from San Jose’s East Side community.”
Now that the restraining order has been lifted, Saenz intends to get back to work covering local politics and giving a voice to people marginalized by the San Jose legal- political community.
Councilman’s Loss Could be Costly
After Saenz filed the anti-SLAPP motion, Ortiz hired Trinity Taylor of the prominent San Jose McManis Faulkner law firm to oppose the motion.
James McManis, founding partner of the McManis Faulkner law firm, represented Judge Aaron Perksy during the 2017 – 2018 recall campaign run by Standford law professor Michele Dauber.
Judge Persky lost his political campaign to keep his judge job and was ordered to pay $161,825 in attorneys’ fees to recall attorneys who defended the legal actions McManis took on Persky’s behalf.
In a case similar to the one filed by Ortiz, Carlsbad Councilwoman Cori Schumacher filed a civil harassment order against bloggers who had been critical of how she did her job. The bloggers filed an anti-SLAPP motion and, like Saenz, prevailed.
Since anti-SLAPP motions make payment for attorney fees to the winning party mandatory, Schumacher was ordered to pay $32,193.50 for violating the First Amendment rights of the bloggers who were critical of her political activities just as Saenz was critical of Ortiz.
The attorney fees and costs San Jose City Councilman Ortiz’s will be required to pay Saenz, has not yet been determined by the court.
Harassment Order Terminated
Ortiz used the courts to chill the speech of his biggest local critic. The TRO violated Saenz’s First and Second Amendment rights, prohibiting him from owning guns or freely expressing his opinion of the job Ortiz and other politicians were doing.
As the winning party, Saenz will be able to collect his attorney fees from Ortiz. Ironically, if Ortiz does not pay the judgment for an attorney fee award, Saenz’s agents could seek to garnish Ortiz’s paycheck as a city councilmember.
San Jose Mayor Matt Mahan and Councilmembers Rosemary Kamei, Sergio Jimenez, David Cohen, Dev Davis, Omar Torres, Bien Doan, Domingo Candelas and Peter Ortiz did not respond to the Vanguard’s request for comment about Ortiz’s civil harassment case filing, the use of his official office for personal legal matters, or his costly loss.
Former California State Assemblymember, Nora Campos, told the Vanguard that a public official filing a harassment lawsuit is extremely rare as criticism from the public and press is just “part of the job.” Campos also served as San Jose City Councilmember from 2001 to 2010 in the seat now occupied by Peter Ortiz.
“Judge Geffon made the right decision,” Campos told the Vanguard. “East Side San Jose Times is a popular platform that provides much needed information to San Jose’s east side community which is among the most socioeconomically disadvantaged in the county.”
@ESSJTimes on Instagram
