By Susan Bassi and Fred Johnson
As social media videos of protests and federal clashes out of Minnesota surged across newsfeeds, and the arrest of independent journalist Don Lemon by federal agents rekindled fears about press freedom, an appellate panel in California dropped a ruling that almost no one noticed.
In an age when public officials can tweet threats, mobilize attorneys and leverage courts against critics, the justices in San Jose’s Sixth District Court of Appeal confronted a stark, urgent question:
Can an elected official weaponize the judiciary to muzzle a journalist who won’t stop criticizing him online?
Their answer was sharp, unequivocal and resounding – No!
A Digital Newsroom Takes on City Hall
San Jose resident Robert Saenz operates East Side San Jose Times (@ESSJTimes). A social-media channel that publishes hyper local political commentary, promotes small businesses, is supportive of San Jose police, and provides community information with an entertaining activism edge on platforms such as Instagram and Facebook.
In 2022, Peter Ortiz was elected to the San Jose City Council to represent District 5, where @ESSJTimes operates. Despite his 2012 arrest and former gang associations, Ortiz ran his campaign on a social-justice platform. The San Jose Mercury Newspaper endorsed Ortiz, as did high-ranking public officials and labor groups in the region.
Ortiz narrowly defeated Nora Campos in a highly contested local election.
Peter Ortiz, Domingo Candelas and Omar Torres 2022 San Jose City Council candidates supported by local labor.
In that same local election, Omar Torres, a former trustee for San Jose’s Evergreen Community College District and the Franklin-McKinney School District, was elected to represent District 3.
By late 2023, the @ESSJTimes Instagram account had grown to nearly 80,000 followers, rivaling the reach of traditional local newsrooms. Ultimately the social media platform became sharply critical of Torres and Ortiz.
Saenz’s social media posts are blunt, crude and activist driven. His posts frequently challenge San Jose’s elected officials, particularly on school policy, LGBTQ+ programs, and City Hall governance.
By the fall of 2023, @ESSJTimes began to focus political commentary on councilmembers Ortiz and Torres. Saenz criticized their votes, political alliances, and what he described as troubling behavior inside City Hall. His posts urged voters to consider removing both men from office.
Ortiz did not respond publicly.
He went to court.
Peter Ortiz was granted a temporary restraining order by Commissioner Van Dat.
A Judge Orders a Journalist to Stop Speaking
Days before Christmas in 2023, Ortiz, acting without a lawyer and using his city hall address and phone number on court documents, filed a request for an emergency civil harassment protective order accusing Saenz and his followers of harassment and threats. Ortiz did not sue for defamation, libel or slander.
In a sworn declaration, Ortiz included not only himself but also Omar Torres, claiming Saenz’s reporting about Torres and allegations involving minors were part of the harassment.
On Dec. 21, 2023, Santa Clara County Superior Court Commissioner Johanna Van Dat granted a temporary restraining order (TRO), barring Saenz from publishing about Ortiz and his partner and campaign manager, Brenda Zendejas. The TRO required Saenz to surrender firearms, a standard legal consequence when such orders are issued.
For weeks, a sitting city councilmember had succeeded in silencing a journalist through the court system.
Ortiz then appeared in local mainstream media, effectively trying his case in the court of public opinion while Saenz was barred from responding, even on his own social media platforms.
Then, Saenz did something Ortiz did not expect.
San Jose City Councilman Peter Ortiz on KTVU News speaking on the TRO in December 2023.
The Underdog Fights Back
Saenz hired Orange County attorney Patrick Evans and filed a motion under California’s anti-SLAPP statute. A law designed to stop lawsuits meant to suppress public participation and speech. Specifically, the statute protects any written or oral statement made in a place open to the public in connection with an issue of public interest. Unless the statements are deemed unlawful threats of violence or harassment, they are protected under the First Amendment and California’s Constitution.
Ortiz responded by retaining McManis Faulkner, one of Silicon Valley’s most prominent law firms. Ortiz’s legal team included James McManis, Richard Atkinson, Trinity Taylor, Tianqi Sun and Matthew Schechter.
The case was assigned to Santa Clara County Superior Court Judge Eric Geffon.
Attorneys for Ortiz argued Saenz’s posts were harassing and incited violence as seen by comments made by @ESSJTimes followers.
The attorney for Saenz argued Saenz’s posts constituted political speech that fell squarely under First Amendment protection.
Santa Clara County Superior Court Judge Geffon ultimately ruled that Saenz’s posts, however caustic, were political speech about public officials and therefore protected by the First Amendment.
The restraining order was dissolved.
Unhappy with Judge Geffon’s ruling, Ortiz and his attorneys appealed.
San Jose Spotlight’s Brandon Pho reported on former San Jose City Councilmember Omar Torres felony conviction and sentencing in August 2025.
Canary in the Coal Mine
While the appeal was pending, the political landscape shifted in a way that gave Saenz’s social media platform new weight.
Omar Torres, the same councilmember Ortiz had listed in his restraining-order papers, was arrested and prosecuted for crimes involving child victims.
Torres, once a powerful local Democrat, was charged with multiple felonies, including lewd and lascivious acts involving a minor, sodomy by force, and oral copulation by force, violence, duress, menace and fear.
The case stunned City Hall and sent shock waves through the local Democratic Party.
In 2025, Torres pleaded no contest and was sentenced to 18 years in state prison.
The crimes were the very type of conduct Saenz had been warning about, and that Ortiz had sought to silence through the restraining order.
To Saenz’s supporters, the sequence was chilling.
A social-media journalist had sounded the alarm.
A politician tried to shut him up.
The allegations later proved real.
Journalism by Pen or Pixel
On Jan. 30, the Sixth District Court of Appeal Justices Greenwood, Lie, and Rodriguez — unanimously affirmed Judge Geffon’s ruling.
The justices held that Saenz’s posts were political commentary, not unlawful harassment, and that even aggressive language aimed at removing an elected official from office remains protected speech.
They rejected Ortiz’s claim that Saenz incited violence, including a video showing Saenz swinging a baseball bat. Viewed in context, the court wrote, the video was political theater — not a true threat.
Further, the court noted that online websites and social media platforms are public forums and that Saenz’s posts were matters of public interest and part of a local public conversation.
Recognizing prior court rulings, the court noted social media can be messy but is still part of the modern free press.
The decision made clear that journalism, can be by pen, pixel or social media post.
A Win for Speech Turns Costly
Judge Geffon’s ruling was a sweeping First Amendment victory. But it also came with financial consequences.
Saenz, an East Side San Jose resident in Ortiz’s district, not only felt underrepresented by Ortiz, he also experienced significant economic loss after Ortiz reported his social media accounts in a manner that resulted in one account being shuttered. Saenz had to rebuild his income and platforms during the litigation while facing tremendous legal expenses to defend against what he described as “harassing and unrelenting litigation”.
However, California’s anti-SLAPP law requires losing plaintiffs to pay the legal fees of the party they tried to silence. In this case, Judge Geffon ordered Ortiz to pay $22,312 to cover Saenz’s attorney fees and costs.
The appellate victory means Ortiz is now likely responsible for even more.
That has raised a second unresolved question: How is a city councilmember paying for this litigation and are taxpayers involved?
San Jose councilmember Peter Ortiz 2025 Economic Interests Form 700.
The Gold-Plated Defense
After Saenz filed the anti-Slapp, Ortiz became represented by McManis Faulkner, a firm known for premium-rate civil litigation. Court records show itemized billing by partners and senior associates in the firm often charge over $1,200 per hour to provide the kind of legal firepower typically reserved for corporate or high-net-worth clients.
Attorneys associated with McManis Faulker are known to charge hundreds of thousands of dollars in child custody and divorce cases. The firm is also known to sue clients who fail to pay their outstanding legal fees.
Public records show Ortiz earns about $136,000 to $160,000 per year as a San Jose City Councilmember, including benefits. Campaign and financial disclosures list no substantial assets or outside income that would explain how Ortiz could finance prolonged litigation with one of Silicon Valley’s most expensive firms.
That gap has drawn increasing attention from residents and business owners in Ortiz’s district.
A local business owner, who did not want to be identified for fear of retaliation, wondered, “If a public salary cannot reasonably fund gold-plated litigation, who is paying for it?”
No public answer has been given.
Ortiz and his attorneys have declined repeated requests for interviews and comment.
Ortiz’s lawsuit also came at great public expense, clogging San Jose’s trial courts and court of appeal on a matter most politicians and local residents viewed as frivolous and without merit.
The Vanguard reached out to San Jose Mayor Matt Mahan, who was elected in 2022 and recently threw his hat into California’s governor race. Mahan did not respond.
Santa Clara County Supervisor Betty Duong who nominated, and endorsed, Ortiz in his 2022 political campaign, also did not respond to the Vanguard’s inquiries.
Nora Campos previously served on the San Jose City Council and in California’s state assembly. She narrowly lost to Ortiz in 2022. Campos told the Vanguard;
“Peter Ortiz tried to use the courts to silence a reporter and punish speech he didn’t like — that’s an abuse of power, plain and simple.” Campos added, “At a time when we are watching national leaders attack the free press and undermine the First Amendment, the last thing we need is local politicians adopting the same playbook. Public officials are accountable to the people, and that includes scrutiny from journalists, even when it’s uncomfortable.”
Campos is considering entering the political race to replace Ortiz on the San Jose City Council in 2026.
San Jose City Councilmember Peter Ortiz (left) and Santa Clara County Supervisor Betty Doung (right). Photo taken from Peter Ortiz’s Instagram page @peterortizd5
Why This Case Matters
This case was never just about one councilmember and one social-media journalist.
It was about whether elected officials can use the courts to make critics disappear — even when those critics are the ones sounding the alarm.
For now, at least, the courts have spoken. They chose speech.
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