Controversial City Councilmember’s Temporary Restraining Order Chills Political Speech on Social Media

 

By Susan Bassi and Fred Johnson

Just before the new year, San Jose City Councilmember Peter Ortiz filed an emergency request against local social media journalist Robert Saenz. Ortiz, representing himself, told the court that Saenz published a social media post comprised of a “Brown Puppet” meme, and social commentary about “grooming children”. Ortiz claimed that the post made him and his girlfriend, Brenda Zendejas, so concerned for their safety that he needed an emergency protective order issued by the court. As a result of Ortiz’s request, a temporary restraining order (TRO) was issued by Santa Clara County Court Commissioner Johanna Thai Van Dat. The order requires Saenz to stay 300 yards away from Ortiz and Zendejas. Additionally, Saenz is prohibited from publishing “defamatory statements” about Ortiz and Zendejas or using the elected official’s name, image, likeness, or other reference in “posts in connection w/crimes against children.”

Santa Clara County Superior Court Commissioner Johanna Van Dat signed the Temporary Restraining order on December 21, 2023.

Hyper Local Social Media Journalism

Saenz operates @ESSJTimes, an Instagram page covering community news in East San Jose, Ortiz’s political district. @ESSJTimes posts typically contain information of interest to local residents, including updates on police and firefighter activity, local food spots, family fundraisers, and even lost dogs.

Posts on @ESSJTimes Instagram page provide information about the East Side of San Jose, Ortiz’s district.

@ESSJTimes provides local residents with information not typically available in the San Jose Mercury Newspaper or other area news sources. Saenz’s signature, raspy radio voice provides social commentary, community information and an authentic perspective of Silicon Valley’s working-class East Side San Jose neighborhood where Saenz has lived his entire life.

On occasion @ESSJTimes posted social commentary critical of San Jose City Councilmembers Peter Ortiz and Omar Torres who represent the majority of the community Saenz seeks to inform through his social media platform.

Ortiz, a convicted felon, campaigned for political office as a personal redemption story. Backed by the region’s powerful labor unions and endorsed by the San Jose Mercury News, Ortiz narrowly won a seat on the San Jose City Council in 2022.

San Jose Mercury reporter Gabriel Greschler reported on the Ortiz TRO, on January 2, 2023, failing to inform readers that the San Jose Mercury had endorsed Ortiz during the 2022 political campaign and reaching out to Saenz only hours before his self-proclaimed deadline.

San Jose Mercury News Reporting on San Jose Councilmember Peter Ortiz

When The Mercury broke the news of Ortiz’s TRO, their reporting failed to note the newspaper’s endorsement and support of Ortiz, arguably compromising journalism ethics as the country heads into an important election year.

Saenz launched the @ESSJTimes Instagram page in 2020 and grew it entirely through his community connections and authenticity, not algorithms.  By 2022, the social media account had over 40,000 followers, which allowed Saenz to monetize the account. By the time Ortiz filed the restraining order request in late 2023, @ESSJTimes had grown to over 66,000 followers, including 3000 paid subscribers.

By comparison, the San Jose Mercury’s Instagram account for all of Santa Clara County has only 30,000 followers. The contrast suggests the social media posts by @ESSTimes may be more likely to sway local voters than the Mercury when it comes to East San Jose’s elections.

@ESSJTimes Community Instagram Page with 66,800 followers (top), The Mercury Newspaper Instagram Page with 30,400 followers (bottom) as of January 5, 2024.

Speech Controversy

Saenz’s post at the center of the TRO controversy consists of a meme which brands Councilmember Peter Ortiz as a “Brown Puppet” and adds social commentary which includes the phrase “grooming children.”

Daniel Watts, a prominent First Amendment attorney who has worked on free speech cases with the First Amendment Coalition, told the Davis Vanguard that for over a hundred years, California’s Supreme Court has held the government censoring speech before it occurs is unconstitutional.

“Courts cannot restrain people’s speech – no matter how cruel that speech is – without giving that person an opportunity to be heard. It violates not only the 14th Amendment’s Due Process Clause but also the First Amendment, according to cases like Leonardini v. Shell Oil Co. and Dailey v. Superior Court,” Watts said.

First Amendment Attorney Daniel Watts discusses Ortiz restraining order on his personal Facebook page.

While the TRO was initially granted by court commissioner Johanna Thai Van Dat, Watts expects the order to be overturned, noting similarities between the restraining order Ortiz filed against Sanez, and the restraining order Carlsbad city councilwoman Cori Schumacher filed against members of the Carlsbad community who voiced their criticism of Schumacher on Facebook, YouTube and other social media platforms.

San Diego – Union Tribune reported Carlsbad City Councilmember Cori Schumacher had to pay attorneys fees to her social media critics after a restraining order she brought against them was dismissed.

Public Officials Behaving Badly in Court

Ultimately, Councilwoman Cori Schumacher was ordered to pay $47,191 in attorney fees and court costs to her social media critics after Judge Cynthia Freeland dismissed the restraining order Schumacher brought claiming she had been harassed on social media.

Judge Cynthia A. Freeland dismissed Schumacher’s restraining order and granted Schumacher’s critics the full amount of their requested attorneys fees, holding Schumacher and her political campaign liable for the costs. Judge Freeland’s order sent a clear message that politicians should respect the First Amendment, according to local news reports.

San Jose City Councilmember Peter Ortiz used his government assigned phone number and the city attorney mailing address in his civil harassment lawsuit where he did not have legal representation.

San Jose Councilmember Ortiz, who filed the lawsuit without an attorney, used his official public office and the San Jose City Attorney’s Office address in the civil harassment lawsuit. The Vanguard made multiple attempts to contact Ortiz, San Jose Mayor Matt Mahan and city councilmembers about any policy that would permit Ortiz to use his official office in the personal TRO lawsuit but received no response.

San Jose Mayor Matt Mahan was elected in the same 2022 election cycle as Ortiz.

“Ortiz is exposing himself not only to the business end of an anti-SLAPP motion, but also to a potential suit for malicious prosecution. He’s also exposing the City to liability by using the City Attorney’s mailing address on his pleading forms.” Attorney Daniel Watts told the Vanguard.

“It’s depressing that a City official is so ignorant about the Constitution that he’d even try something like this – and it says a lot about the strength of his ‘case’ that he was unable to find a lawyer to represent him.” – First Amendment Attorney Daniel Watts.

Local criminal defense attorney Holden Green expressed concerns as well. “A public official wanting wide-reaching protection in both his professional and personal space while performing his duties for which he was elected and where Sanez lives is not the usual route to issue a civil harassment order in the first place. Councilman Ortiz cannot have it both ways.”, Green said.

Green, who often represents clients in civil harassment and domestic violence restraining order matters in Santa Clara County added, “the restraining order was the easiest and shortest route to the relief Ortiz feels is deserved. That is a path a public official of a city district that both parties live in is very problematic and ripe for conflict. Not in a good way.”

Green pointed out that the order significantly alters Saenz’s personal and business freedoms, barring Sanez from accessing city services a tax-paying party has a right to access. “That is why an ordinary civil harassment lawsuit is not appropriate in this case as there is no space for a carve out order. As a taxpayer Saenz needs to access city services. Green added, “Clearly without specificity, the TRO interferes with his right to speech and association.”  Green added.

Calling the order “problematic,” Green noted Saenz running into Ortiz by chance in the district where Mr. Saenz lives and is serviced by Councilman Ortiz, who also lives in the same district, would technically violate the restraining order and could result in Saenz’s arrest.

Green pointed out the conditions of the restraining order provide a way for Ortiz to stifle free speech and silence his critics. As written, the TRO permits Ortiz to “enjoy all the perks and privileges of a public official without the obligations that come with duties of a councilmember and public servant.” Green said.

San Jose City Councilmember Peter Ortiz’s Dating Partner

Ortiz’s girlfriend Brenda Zendejas is included in the TRO, though she did not provide her own declaration or evidence to justify needing court protection from Saenz. Further, it is unclear if Ortiz and Zendejas live together as the TRO does not note a home address for either Zendejas or Oritz but requires Saenz to stay 300 yards from their residence.

Additionally, the TRO prohibits Saenz from going near the workplaces of Ortiz and Zendejas, though the workplace of Zendejas is not defined in the TRO. According to the San Jose Downtown Association (SJDA) website, Zendejas is a staff member. The association and its board members work to attract business to the downtown San Jose area in a manner similar to how Saenz operates his social media platform to attract business to East San Jose.

San Jose City Councilmembers Peter Ortiz and Omar Torres held a press conference on July 25, 2023 claiming they were victims of racism and harassment incited in the local business community.

Councilmember Cries Wolf: Ortiz’s Social Media Harassment History

In the months leading up to Ortiz’s request for a protective order, he and San Jose City Councilmember Omar Torres held a press conference claiming they had been targets of racism and harassment. Days after the press conference, covered by NBC Bay Area, Brenda Zendejas, San Jose Councilmember Omar Torres and Peter Ortiz began to follow ESSJ Times on Instagram.

At that time ESSJ Times had over 40,000 followers and approximately 3000 subscribers who paid monthly to support the account and the local information it provided. However, after the political trio began to follow Saenz’s account, an escalation of threatening messages caused Saenz to be concerned for his personal safety and that of his family.

Instagram account identified only as @Marisoldiazrealtor called for ESSJTimes followers to report the Instagram account for hate speech in connection with the San Jose Latin and LGBTQIA+ Communities.

Social media accounts linked to Ortiz, Torres and Zendejas show incitement of their supporters and effort to move @ESSJTimes’ own followers to file false claims of hate speech and racism against Saenz’s Instagram account.

False claims directly linked to Ortiz’s supporters resulted in Meta, Instagram’s parent company, reportedly throttling the @ESSJTimes account, significantly impacting the income Saenz makes as a social media journalist.

The Vanguard reached out to Meta’s public and investor relations team for comment but did not get a response by the time of publication.

Court Commissioner Johanna Thai Van Dat’s issuing a TRO against an elected official’s social media critics is newsworthy.

Legal Implications of Temporary Restraining Orders and Social Media Journalists

In an interview with KTVU news, Saenz said he was evaluating his legal options against Ortiz. Watts noted he expects the court will terminate the TRO.

In his legal analysis of Ortiz’s TRO against Saenz, Watts notes statements Ortiz characterizes as harassing, are nothing more than “juvenile name-calling.” Further, Ortiz, “decided to use the city attorney’s mailing address on his court papers, which ropes the City of San Jose into this and potentially exposes it to liability when Mr. Saenz inevitably files an anti-SLAPP motion and wins attorney fees against Ortiz. It’s the epitome of foolishness. It’s something Donald Trump would do.”

Court Commissioner Struggles with First Amendment and Public Access Laws

When it comes to court rulings that potentially violate the First Amendment, Commissioner Johanna Thai Van Dat has priors.

Department 4, where Thai Van Dat is assigned, is one of the few courtrooms in the Santa Clara County Superior Court system that does not provide remote public access to court hearings.  Additionally, in Van Dat’s courtroom most of the litigants can’t afford an attorney, or a court reporter to prepare a transcript, the historical record of courtroom hearings when cameras do not record the proceedings.  Without a transcript, or recording, there is no record of what occurred in a court hearing. Should Thai Van Dat violate the law, it is virtually impossible  to appeal her court orders related to a hearing without a transcript.

In November of 2023, a group of freelance journalists and court watchers reporting for the Vanguard made a formal written request (“media request”) to remotely access and record a hearing assigned to Thai Van Dat.

The hearing was newsworthy because it involved another civil harassment lawsuit and TRO requested by controversial minors counsel BJ Fadem whose social media critics had accused him of being a child abuser based on his mishandling of child clients whose parents were involved in a divorce. Like Ortiz, Fadem sought to use a civil harassment case to silence his critics. After a  TRO was issued in the case,  the matter was assigned to Thai Van Dat and a written media request was submitted to the court to remotely access and record the proceedings.

Minors Counsel BJ Fadem filed a civil harassment lawsuit against the aunt of his child clients to silence his critics on social media.

A media request requires the judge, or commissioner, to carefully consider several factors including public interest, government transparency and the right of the parties to be assured a fair hearing. Before ruling on the request, the judge, or court commissioner, is required to allow the parties and attorneys in a case an ability to support or oppose the request. Commissioner Thai Van Dat did not follow the legal procedure with respect to the media request before she quickly denied the request, locking the local press, and public out of the hearing.

The civil harassment case Fadem brought against one of his harshest social media critics was similar to the case brought by Ortiz. These cases involve public figures subject to public criticism, using the courts to chill speech. Both cases involve social commentary on how the public viewed Ortiz and Fadem’s treatment of children, an issue always a matter of public interest.

Johanna Thai Van Dat has been an appointed member of the Santa Clara Child Abuse Prevention Council since 2015. A role relevant in both the Ortiz and Fadem TRO cases where allegations of child abuse and crimes against children are the subject of the TRO orders Thai Van Dat has signed.

About The Author

Disclaimer: the views expressed by guest writers are strictly those of the author and may not reflect the views of the Vanguard, its editor, or its editorial board.

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3 Comments

  1. jasminemedina

    People have been talking on Reddit. Several posts were deleted. One said he lived in evergreen. This was fact checked. Another said he was a convicted felon where they listed all his counts. One including animal abuse. This was fact checked. He has multiple restraining orders against him. History of violence against women. He uses platform to harass individuals he doesn’t like. This article doesn’t really do investigation into who this individual is and why the council member should be fearful of him. You should really do a thorough investigation.

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