San Jose City Council Member’s Request for Restraining Order Against Critic Denied on Appeal

From Ortiz v. Saenz, decided Friday by the California Court of Appeal (San Diego County Superior Court Judge Victor Rodriguez sitting by designation, joined by Judges Mary Greenwood and Cynthia Lie):

Saenz operated a social media account under the username “@ESSJTIMES” which, at the relevant time, was accessible to the public and had almost 80,000 followers. Saenz used the account to disseminate news pertaining to the Eastside San Jose community….

During the time period at issue in this case, Ortiz was a member of the San Jose City Council. In the fall of 2023, Saenz posted a video on his account criticizing another elected member of the San Jose City for promoting a children’s event known as “Drag Queen story time.” In the video, Saenz claimed the event was “inherently sexual” and posed a threat to children. He included the council member’s social media account in his post (a practice commonly referred to as “tag” or “tagging”), after which Saenz’s followers began posting negative messages on that council member’s account.

Ortiz, in defense of his colleague, used his social media account to report Saenz to the platform for hate speech and misinformation, and posted a statement on his account suggesting that Saenz and his followers were targeting and threatening his fellow council member. Ortiz and his girlfriend, Brenda Zendejas {Saenz alleged Zendejas was also Ortiz’s campaign manager}, also posted messages on their accounts asking the public to report Saenz to the social media platform for hateful speech.

In response, Saenz shared their messages on his account, with his added comment stating, in part, “You are throwing a ralley [sic] to label this page a hate page? Are you kidding me. I am only saying this once this last time.” Saenz’s followers responded by posting negative remarks about Ortiz and Zendejas, including accusing Ortiz of being a pedophile for defending his fellow council member.

A few months later, in December 2023, Saenz posted a video and message on his account referring to Ortiz and the same colleague as “brown puppets” and tagged Ortiz’s social media account. Saenz stated that they did “not represent the Latino and Mexican community at all. Especially the majority of the community that is against grooming our children. We need those brown puppets pushing that crap on our children out of City Hall ASAP!” In the video, Saenz called Ortiz a “showered cholo” and alluded to Ortiz being a “sick fuck.” Other account users responding to Saenz’s post referred to Ortiz as a pedophile.

Saenz posted a second video to his account making reference to Ortiz. This video appeared to be altered by Saenz and opposed what another user called the “trans kids” movement. Saenz alleged that “Big Pharma” profited from transgender children due to increased healthcare costs and suggested through imagery that Ortiz and his colleague were puppets of “Big Pharma.” In a voiceover, Saenz demanded the council members “[l]eave the babies alone” and declared “We gotta get [Ortiz’s colleague] out… and [Ortiz] comes in backing him. So does his little girlfriend.”

In another section of the post, text appeared on the screen “Please watch the whole video. We need to get these people out of City Hall ASAP. Protect our children!” The video showed images of Ortiz and two other council members with a voiceover by Saenz stating “We gotta clean them out and put in new brown people who actually care about the community.” Saenz’s video ends with an image proclaiming his account was a “hate free” page for “those who do not groom/sexualize children.” Responses from other account users to the video contained insinuations that supporters of the “trans kids” movement were child predators.

Thereafter, based solely on those social media posts by Saenz and the responses by Saenz’s followers, Ortiz sought a civil harassment restraining order against Saenz. In his petition for the restraining order, Ortiz alleged Saenz had harassed him and Zendejas “on [Saenz’s] social media posts, claiming that we are attacking his social media page. As a result, [Saenz’s] social media followers have made hateful comments and threats towards [them].”

Specifically, Ortiz claimed Saenz and his followers falsely accused him of “grooming” or sexualizing children and labeled him a pedophile. Ortiz alleged that the social media posts portrayed him as “a danger to children” and he was “afraid that [Saenz] or one of his followers will act on [Saenz’s] calls to ‘protect our children’ by physically attacking [him or Zendejas].” Ortiz further stated that these statements damaged his “ability to work with members of [the] community,” harmed his reputation, and caused him emotional distress…. To support his allegation that Saenz’s posts portraying him as a child groomer or pedophile could incite harassment, threats, or violence, Ortiz attached an article reporting an increase in harassment, threats, and violence toward the LGBTQ community resulting from groups that demonize and label its members as pedophiles or groomers.

On December 21, 2023, the trial court issued a temporary restraining order (TRO) pending the hearing, which included orders that Saenz not “[h]arass, … stalk, threaten … or disturb the peace [of the protected persons],” and that he not “publish defamatory statements about [Ortiz and Zendejas] … use the name, image, likeness or otherwise reference the protected parties in social media posts in connection [with] crimes against children; or encourage others to do the same.” …

In follow-up proceedings,

Ortiz alleged that shortly after issuance of the TRO, Saenz posted videos commenting on the litigation and TRO, asserting the TRO was obtained based on false information and violated the first amendment rights of reporters and freedom of the press. In his posts, Saenz stated, “I firmly believe they’re covering [sic] the fact that they had people threaten me because they labeled my page a hate page.” In total, Ortiz alleged that Saenz posted and then deleted more than 11 videos concerning him, Zendejas, and the underlying proceedings in violation of the TRO.

In support of his claims, Ortiz submitted screenshots of videos Saenz posted on his social media account. One video, posted after Saenz was served with the TRO, displayed Saenz’s own press release regarding the order and his voice stating: “So I have Councilman Peter Ortiz putting a restraining order on me, yes, Peter Ortiz, active homeboy was tatted, gangs, now he’s [unintelligible] scared for himself, he says that he gets nervous in public because of me.” The video displayed an image of Ortiz’s prior mugshot and referenced his criminal history, which Ortiz acknowledged was public information, accompanied by additional commentary from Saenz calling Ortiz a “weirdo,” stating that he was the “same weirdo that stuck up for [Ortiz’s colleague] after I called him out saying why are you bringing our kids around this tranny story hour….” Saenz also posted a video solicitating information from Ortiz’s former classmates because Saenz was “investigating a tip [he] received” regarding Ortiz.

In another video, Saenz stated the Mercury News’s coverage of the litigation was biased, stating “[t]his article is not a news report; it’s an attack on you guys and the ESSJ times, that’s all it is.” Saenz also shared on his account an online news article about the litigation entitled “Controversial City Councilmember’s Temporary Restraining Order Chills Political Speech on Social Media.”

In his third supplemental declaration filed a week before the hearing, Ortiz stated that Saenz “continue[d] to claim that I’m a pedophile, I groom children, and that I’m crooked. In some of these posts, [Saenz] infer[red] that I am a child molester or pedophile by saying that I’m only in a relationship with Ms. Zendejas so that I can get to her children or touch her children.”

He claimed that Saenz threatened to “‘silence me’ or ‘end me’—indicating to his followers that he is going to take my life,” and encouraged his followers to take unspecified action. Ortiz noted in one video posted in March 2024, “[Saenz] called on his followers to show up at Ms. Zendejas’ children’s baseball event, causing Ms. Zendejas and I to fear for the safety of the children.” Ortiz also asserted that “[i]n another recent video, [Saenz] is swinging a baseball bat pretending to hit other people—specifically what he describes as small business owners in San Jose—stating that he is going to come after any small business owner that supports me.”

About a week before the hearing, Saenz posted a video encouraging his followers to attend the court proceedings, promising a free tamale for any person that takes “a selfie with [Ortiz’s] crooked ass lawyer.” Saenz referred to Ortiz as a “crooked councilmember,” suggesting that Ortiz’s restraining order request was filed because Saenz “called them out” on their support of “Drag Queen story time.” In another video, Saenz stated, “we see what’s going on, what they’re trying to pull with the kids. You see the corruption he is pulling at City Hall.” …

On April 18, 2024—after the temporary restraining order had been in effect for nearly four months—the trial court declined to issue the permanent restraining order, so the temporary restraining order was therefore terminated. The court also granted Saenz’s anti-SLAPP motion, which would allow Saenz to recover his attorney fees.

Friday’s appellate decision affirmed the denial of the permanent restraining order, and affirmed the grant of Saenz’s anti-SLAPP motion. An excerpt from the long analysis:

Viewing Saenz’s conduct in the full context of his social media activity, his statements and the videos he posted, though provocative, inflammatory and challenging, are more reasonably understood as criticism of Ortiz’s character and qualifications as council member, his conduct in office, and a call for the public to vote him out of office….

[E]ach challenged statement and act was made in a public forum, addressed matters of public interest, and was directed to the public to promote political discourse or action: to remove Ortiz from office. Saenz directed those statements to his 80,000 followers and urged them to remove the council members from office.

In the first two videos that formed the basis for Oritz’s request for the restraining order, Saenz specifically calls to get Ortiz and his colleague “out of City Hall ASAP.” Similarly, after the trial court issued the TRO, Saenz continued to criticize Ortiz’s character, qualifications, and fitness for office, cloaked in the same hyperbole and conspiratorial rhetoric, and again urged his followers to both vote Ortiz out of office and to share their positions with Ortiz regarding his qualifications. Thus, the purpose of the speech was to further public discussion regarding the suitability of Ortiz for his office and suggested political recourse for those who agreed with Saenz….

Saenz’s conduct [does not] constitute a “true threat.” Ortiz claimed that Saenz threatened to “silence” and “end” him, urged his followers to “take action,” and incited violence by posting a video of Saenz swinging a baseball bat. However, when considered in context, these statements and actions were made in connection with Saenz’s broader political commentary and efforts to encourage Ortiz’s removal from office.

The further allegation that Saenz “called on his followers to show up at Ms. Zendejas’ children’s baseball event” lacks any accompanying claim that Saenz directed his followers to engage in violence, unlawful behavior, or physical harm. Viewed from the standpoint of a reasonable person, Saenz’s statements and conduct do not evidence an intent to inflict bodily harm or to incite others to do so.

[A]lthough Ortiz’s arguments on appeal present a distressing scenario for civil harassment, legal arguments are not facts. Here, the record lacks specific facts to substantiate his arguments. Ortiz relies heavily on Saenz’s post concerning the children’s baseball event and a separate post in which Saenz pretends to swing a baseball bat as proof of harassment. Saenz’s statements in urging the public to show up at Zendejas’ children’s baseball event, though highly inappropriate and irresponsible, contain no suggestion for his followers to engage in violence or unlawful activity there. Nor is there any specificity or context: it is not clear when this was posted, exactly what was said or if the post included information about what the “baseball event” entailed, the actual location or time said event was occurring.

As to the video depicting Saenz swinging a baseball bat, there is no evidence that the video was posted in relation to or simultaneously with the post asking his followers to show up at the children’s baseball event. For example, had the video of Saenz swinging the baseball bat been posted a week after the children’s baseball event, it would be hard to draw the connection that his swinging the bat had any relation to inciting violence at the children’s event.

Additionally, Ortiz’s own declaration stated that the video was posted with commentary suggesting Saenz was going to “come after any small business owner” that supported Ortiz, not Ortiz or his girlfriend or her children. Viewed in the context of Saenz’s other posts, … the evidence demonstrated that Saenz’s speech was focused on urging followers to take action in the political process to vote Ortiz out of office or express their opposition to the council member’s positions.

Even assuming Saenz irresponsibly likened Ortiz to child groomers and pedophiles, his statements—however extreme and hyperbolic—were directed at whether Ortiz, as an elected government official, was qualified to sit on the San Jose City Council. Because the record reflects a legitimate purpose, Ortiz fails to show a prima facie case of harassment….

The circumstances here fall far short of the threatening conduct present in the other cases Ortiz cites, where courts concluded that such conduct was unprotected by the First Amendment. (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (Cal. App. 2005) [activist group, known to support illegal activities including assault, trespass and vandalism, targeted a laboratory employee on its website and threatened physical violence]; City of San Jose v. Garbett (Cal. App. 2010) [defendant with a history of threatening city employees alluded to mass shootings to effectuate change].) …

Even assuming Saenz violated the TRO, Ortiz has not shown that the alleged violations establish a probability of prevailing on his civil harassment claim. Ortiz’s initial petition relied solely on two videos posted by Saenz, each of which served a legitimate purpose: to encourage the public to seek Ortiz’s removal from office. Ortiz’s subsequently filed supplemental declarations, though asserting harassment in conclusory terms, failed to set forth concrete, specific facts that demonstrated that those posts or any subsequent posts constituted harassment….

Patrick J. Evans represents Saenz.