NUMBER 13-23-00176-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

MICHAEL NEUMAN, INDIVIDUALLY

AND DERIVATIVELY ON BEHALF OF

ROCKPORT AREA ASSOCIATION OF

REALTORS, INC., Appellant,

v.

KEITH HAMILTON, GEMMA ANTHONY,

AND JENNIFER BRADSHAW, AS

EXECUTIVE OFFICERS AND MEMBERS

OF THE BOARD OF DIRECTORS OF THE

ROCKPORT AREA ASSOCIATION OF

REALTORS, INC., Appellees.

On appeal from the 36th District Court

of Aransas County, Texas.

DISSENTING MEMORANDUM OPINION

Before Justices Benavides, Longoria, and Tijerina

Dissenting Memorandum Opinion by Justice Benavides
2

“The right to speak freely and to promote a diversity of ideas and programs 

is . . . one of the chief distinctions that sets us apart from totalitarian regimes.” Ashton v. 

Kentucky, 384 U.S. 195, 199 (1966). The majority holds that the communications at issue 

constitute a private dispute between private parties affecting their individual interests, and 

they therefore were not made in connection with a matter of public concern. See TEX. CIV.

PRAC. & REM. CODE ANN. § 27.001(3). In my opinion, this holding comes from a misreading 

of McLane Champions and Creative Oil, as well as a fundamental misunderstanding of 

the TCPA and its purpose. Because I would conclude that the Board’s lawsuit is based 

on or in response to Neuman’s exercise of his right to free speech, and because the Board 

has not sufficiently demonstrated the merits of its lawsuit, I respectfully dissent.

I. BACKGROUND

At no point does the majority detail the statements underpinning the Board’s 

defamation claim. Instead, the majority solely relies on the Board’s description of 

Neuman’s communications, rather than focus on the communications themselves. But 

see Clinical Pathology Lab’ys, Inc. v. Polo, 632 S.W.3d 35, 48 (Tex. App.—El Paso 2020, 

pet. denied) (“[T]he focus must be on the communications themselves, and whether they 

were made in connection with a [matter of public concern].”). Because we are obliged to 

consider more than just the parties’ pleadings when determining whether the TCPA 

applies, additional background information is necessary. See TEX. CIV. PRAC. & REM.

CODE ANN. § 27.006(a).

By all accounts, on September 12, 2022, RAAR held a board meeting. During the 

months of October, November, and December 2022, Neuman sent a string of emails to 
3

RAAR’s membership.1In his first email, sent on October 14, 2022, Neuman asserted, “In 

my opinion, [the board meeting] is a Kangaroo court and not a meeting to express or 

discuss the input and opinion[s] of the members for the benefit of the members. It is a 

one-man show.” Neuman also discussed certain events that transpired at the September 

board meeting, stating, “[M]embers asked who is on the finance committee and who looks 

after the budget income and expenses. . . . Mr. Keith Hamilton stated that Larry Barnebey 

is the Finance Committee chair. Judy Bell asked if he was the only one, but Mr. Hamilton 

evaded the question.” Neuman represented that a couple days after the meeting, several 

of his “brokerage [r]ealtors” were having lunch when they ran into Barnebey. After one of 

the realtors expressed that she wanted to volunteer for the finance committee, Barnebey 

allegedly stated, “Honey, it is all under control. I don’t need your help[.]” Neuman also 

detailed some concerns about RAAR’s finances, such as the fact that RAAR “paid

property taxes in the amount of $100,000.00 plus to the county but did not file the building 

ownership as a nonprofit.” Neuman suggested that “we look at all options available to the 

board and the MLS[2][and] restructure the organization accordingly.”

In his second email, sent on October 17, 2022, Neuman further discussed the 

details of the September board meeting. He explained that “the MLS committee” 

recommended “that RAAR MLS join with South Texas MLS to save time and money for 

members of RAAR.” However, according to Neuman, Hamilton did not want to “improve 

1 These emails were attached to the Board’s response to Neuman’s TCPA motion to dismiss. I 

have omitted any emphasis, such as bolding and underlining, from the original emails in my republishing of 

them.

2 MLS refers to the Multiple Listing Service.
4

the Realtor’s [sic] needs. Is this the leadership we want?” Neuman also complained that 

instead of allowing the membership to vote on transitioning to a new MLS technology, 

“Hamilton created an ad-hoc committee (handpicked) at the September meeting in a 

disruptive, insulting[,] and discriminating [manner] towards me.” Neuman represented that 

“Hamilton and a few of these members’ agenda is to stop and disrupt the process thus 

stopping the opportunity for members to make choices.”

On October 18, 2022, the Board’s attorney sent a cease-and-desist letter to 

Neuman’s attorneys. According to this letter, “Neuman, Judy Bell[,] and others with Realty 

Executives have engaged in defamatory, disparaging, intimidating, and unlawful conduct 

against RAAR and its individual [b]oard members and employees, by falsely and 

recklessly providing misinformation relating to RAAR.” The letter requested that Neuman 

cease his wrongful conduct, or else the Board intended to seek legal remedies.

In the third email, sent on October 19, 2022, Neuman stated, “I have some 

concerns about how the RAAR conducts our business, meaning Realtor Association 

business. Many items, including accountability and record keeping, I believe that as

paying members, we should be questioning and voicing our concerns.” Neuman 

represented that he received a response from Gina Setterbo, RAAR’s account executive, 

who explained that RAAR’s finance committee “and RAAR accountant only meet once a 

year to discuss and review the proposed budget for the following year.” Neuman 

expressed that he “was surprised to learn that the Finance Committee meets only once 

a year.” Neuman further suggested, “Surely Mr. Barnebey could meet with the board more 

than once per year to oversee the administration of the financial affairs of the RAAR—a 
5

monthly meeting would be more appropriate, particularly if Mr. Barnebey is in a paid 

position.” In response to this email, the Board’s attorney sent a cease-and-desist email 

that same day to Neuman’s attorneys.

On October 21, 2022, Neuman sent another email to RAAR’s membership. In this 

email, he acknowledged that he was “being threatened with TRO lawsuits to silence me” 

but explained that he was “simply pointing out truth and facts.” Neuman also stated that 

“Rockport has a reputation for not having the Realtors’ needs at the forefront. That has 

been caused by a few characters.” Neuman concluded by stating, “I’ve taken this issue 

upon myself because the leadership of RAAR has failed the Realtors and most of our 

clients, the sellers and buyers.”

On November 10, 2022, Neuman sent another email, requesting “all RAAR 

members to please step up and express your concerns and issues to the leadership and 

to take an active role in correcting the abuse you’ve seen through the years.” He harkened 

back to the September board meeting, stating, “When Mr. Hamilton shut us down, 

insulted, and discriminated against me and the Chairman of the South Texas MLS, the 

presentation from the South Texas MLS was halted.”

On November 14, 2022, Neuman sent another email accusing the Board of not 

being transparent, “trying to stop” him, and “wasting members’ hard-earned money.” On 

November 18, 2022, Neuman sent an email purporting to include the feedback he had 

received from his fellow RAAR members. The following are some of the statements 

Neuman allegedly received from other RAAR members:

• Mr. Hamilton should step down from his position because he is not 

qualified to serve on this board. For two years, this board has been 
6

riddled with issues, member dissatisfaction, and antitrust violations. 

Disparaging me, my company, and other agents[.] I am not going to 

disclose everything yet, but it will come to light if we go to court.

• Mr. Hamilton, do the right thing. You have been a dictator and a 

distraction on this board for way too long.

• I support [Neuman] and I’m sorry he was humiliated, intimated [sic], 

embarrassed, and discriminated against. RAAR created a HOSTILE 

ENVIRONMENT, and this should not be tolerated[.] I hope there will 

be some swift[] and firm legal action to regain the integrity.

• Thank you for your efforts and your desire to see this through. It 

sounds like RAAR doesn’t want to go to court and doesn’t want a 

forensic audit of the books. Hmmm . . . wonder why?

On December 2, 2022, Neuman filed an original petition in the underlying cause and 

requested a declaratory judgment defining the scope of RAAR members’ privileges. 

Attached to Neuman’s petition and incorporated by reference were RAAR’s bylaws.

On December 7, 2022, Neuman sent another email to the membership and 

accused “a few of the RAAR members in leadership positions” of “manag[ing] RAAR as 

their private conglomerate.” And on December 22, 2022, Neuman sent his final email, 

explaining that his lawsuit was filed against the “three leaders, the President, the Vice 

President, and the Secretary who happens to be on the Board of Directors. Not the entire 

BOD as they keep telling everyone.” Neuman also alleged that “[e]very other board has 

open and clear communications with their membership except for RAAR.” Neuman 

explained that he was “looking into filing an Antitrust complaint against the Board with the 

DOJ,” and asked the members whether they could “trust the RAAR to protect our 

profession.”

On December 29, 2022, the Board filed a general denial and counterclaimed for 
7

defamation. According to the counterclaim, Neuman has “been constantly emailing and 

contacting RAAR members making statements and comments that completely 

mischaracterized events at the RAAR Board meeting on September 12, 2022[,] and 

afterwards and accusing Defendants of discrimination and intentional humiliation of 

Plaintiffs.” The Board sought actual damages and “a [d]eclaratory [j]udgment for 

[Neuman] to Cease and Desist from engaging in any further wrongful conduct.”

On February 21, 2023, Neuman filed his TCPA motion to dismiss in response to 

the defamation counterclaim, asserting that his rights to petition, to associate, and to free 

speech were all implicated by the counterclaim. In their response filed on March 22, 2023, 

the Board contended that their defamation action did not implicate any of these rights 

because Neuman’s communications did not relate to a matter of public concern, a 

governmental proceeding, or a judicial proceeding. The Board also described Neuman’s 

allegedly defamatory conduct as follows:

[Neuman] ha[s] been constantly emailing and contacting RAAR members 

making statements and comments that completely mischaracterized the 

events at the RAAR Board meeting on September 12, 2022, and afterwards, 

accusing [RAAR] of discrimination and intentional humiliation of Mr. 

Neuman and his associates, and stating as fact that the RAAR in general 

and specific members are behaving unethically. . . . False accusations 

raised by Neuman include allegations that RAAR is engaging in antitrust 

violations, disparaging Mr. Neuman[ ]and his company, breaching fiduciary 

duties, failing to act transparently, wasting association financial resources, 

abusing its authority, and other such misconduct.

The trial court denied Neuman’s motion to dismiss, found that it was frivolously filed, and 

awarded RAAR’s board members attorney’s fees. This accelerated, interlocutory appeal 

followed. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(12).
8

II. THE HISTORY OF THE TCPA

Because a primary purpose of the TCPA is “to encourage and safeguard the 

constitutional rights of persons to . . . speak freely,” it is important to analyze what 

speaking freely has historically entailed. See id. § 27.002.

A. The Freedom of Speech, Generally Speaking

The First Amendment provides: “Congress shall make no law . . . abridging the 

freedom of speech, or of the press; or the right of the people peaceably to assemble, and 

to petition the Government for a redress of grievances.” U.S. CONST. amend. I; see TEX.

CONST. art. I, § 8 (“Every person shall be at liberty to speak, write or publish his opinions 

on any subject, being responsible for the abuse of that privilege; and no law shall ever be 

passed curtailing the liberty of speech or of the press.”). Although the freedom of speech 

is referred to as “the very foundation of constitutional government,” De Jonge v. Oregon, 

299 U.S. 353, 365 (1937), limitations have commonly been understood to apply to it. In 

Chaplinsky v. New Hampshire, the United States Supreme Court explained that “[t]here 

are certain well-defined and narrowly limited classes of speech, the prevention and 

punishment of which have never been thought to raise any Constitutional problem. These 

include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ 

words . . . .” 315 U.S. 568, 571–72 (1942). But see Austin v. Mich. Chamber of Com., 494 

U.S. 652, 695 (1990) (Scalia, J., dissenting) (“[T]here is no such thing as too much 

speech . . . .”).

Nonetheless, “[t]he freedom of speech . . . guaranteed by the Constitution 

embraces at the least the liberty to discuss publicly and truthfully all matters of public 
9

concern without previous restraint or fear of subsequent punishment.” Thornhill v. 

Alabama, 310 U.S. 88, 101–02 (1940). In other words, “[f]reedom of discussion, if it would 

fulfill its historic function in this nation, must embrace all issues about which information 

is needed or appropriate to enable the members of society to cope with the exigencies of 

their period.” Time, Inc. v. Hill, 385 U.S. 374, 388 (1967) (quoting Thornhill, 310 U.S. at 

102). Therefore, protected speech includes more than just “political expression or 

comment[s] upon public affairs, essential as those are to healthy government.” Id.

Since its admission into the union, Texas has developed its own free speech 

jurisprudence. In the early years, under common law, individuals sued for libel in Texas 

enjoyed a “privilege,” or could essentially escape liability, if the alleged communication 

was “made in good faith, in reference to a matter in which the person communicating 

ha[d] an interest, or in which the public has an interest . . . if made to another for the 

purpose of protecting that intent.” Mo. Pac. Ry. Co. v. Richmond, 11 S.W. 555, 557 (Tex. 

1889).

In Missouri Pacific Railway Co. v. Richmond, a railway officer fired Richmond, a 

conductor, and subsequently circulated material among “the officers of the company 

only,” explaining that Richmond had been discharged for “carelessness.” Id. at 555. A 

private dispute between private parties affecting solely their pecuniary interests. Under 

the broad, then-existing common-law jurisprudence, the Texas Supreme Court held that 

the railway officer enjoyed a privilege, stating, “looking to the public interests involved, we 

do not see that such a publication would be actionable.” Id. at 558. The Court considered 

the “public interests involved in the safe operation of railways” and “the interests of their 
10

owners,” and it concluded that Richmond could not recover damages for the allegedly 

libelous material. Id.

B. SLAPPs & Anti-SLAPP Laws

In the 1980’s and 1990’s, an alarming trend arose. Citizens were being sued in 

large swaths for speaking out on issues of public importance. See Chad Baruch, “If I Had 

a Hammer”: Defending SLAPP Suits in Texas, 3 TEX. WESLEYAN L. REV. 55 (1996)

[hereinafter “If I Had a Hammer”]; Sharlene A. McEvoy, “The Big Chill”: Business Use of 

the Tort of Defamation to Discharge the Exercise of First Amendment Rights, 17 HASTINGS 

CONST. L.Q. 503 (1990). The United States Supreme Court has recognized that “[a]

lawsuit no doubt may be used . . . as a powerful instrument of coercion or retaliation.” Bill 

Johnson’s Rests., Inc. v. Nat’l Lab. Rels. Bd., 461 U.S. 731, 741 (1983). And this was no 

less true in these suits. Even if the citizen was ultimately successful in defending against 

the suit, the plaintiff’s goal of silencing the citizen was often accomplished through the 

cost of the litigation. See “If I Had a Hammer”, supra, at 56. As one jurist remarked of this 

trend, “Short of a gun to the head, a greater threat to First Amendment expression can 

scarcely be imagined.” Gordone v. Marrone, 590 N.Y.S. 2d 649, 656 (N.Y. Sup. 1992), 

aff’d, 616 N.Y.S.2d 98 (App. Div. 1994).

George W. Pring and Penelope Canan are credited with coining the term “SLAPP,” 

which stands for strategic lawsuits against public participation. See Serafine v. Blunt, 466 

S.W.3d 352, 365 n.5 (Tex. App.—Austin 2015, no pet.) (Pemberton, J., concurring).

According to Canan and Pring, the “warning signals” of a SLAPP suit include:

1. Local issues (which cause SLAPPs more frequently than granderscale or national issues);
11

2. Bi-polarity (sharply two-sided, go/no-go, win-lose positioning of 

parties);

3. Public-private dichotomy (one side viewing the issues from a publicgood, ideological, or value perspective, while the other side views 

the issues as private, property rights, personal financial gain, etc.);

4. Non-Goliaths (contrary to expectation, filers are more often small, 

local entities and individuals, rather than large operators);

5. Legitimizing-delegitimizing labels (potential filers typically 

delegitimize their opponents by labeling them as “ignorant,” “selfinterested,” “little old persons in tennis shoes,” “opportunists,” etc., 

while they legitimize themselves as “professional,” “free enterprise,” 

“having rights,” “protecting property,” etc.);

6. Forum bias (SLAPPs are typically filed by “losers,” by those who 

mistrust their ability to win in the public, political forum in which the 

dispute starts—be it a zoning board, consumer agency, school 

board, police conduct review body, or law-reform lawsuit; ironically, 

it is when citizens are being most successful in the political forum 

that they are most frequently SLAPPed out of it and into court).

George W. Pring & Penelope Canan, “Strategic Lawsuits Against Public Participation” 

(“SLAPPS”): An Introduction for Bench, Bar and Bystanders, 12 BRIDGEPORT L. REV. 937, 

948–49 (1992).3

In response to these suits, states began to pass anti-SLAPP laws. Thirty-three

states and the District of Columbia have all passed anti-SLAPP laws that aim to swiftly 

dismiss SLAPPs and stem the damage done to the citizen’s exercise of their core First 

Amendment rights. See Laura Lee Prather, SLAPP Suits: An Encroachment on Human 

Rights of a Global Proportion & What Can Be Done About It, 22 NW. J. HUM RTS. 49, 57 

(2023).

3

It is striking that most, if not all, of these “warning signals” of a SLAPP are present in this case.
12

C. The TCPA

Texas’s anti-SLAPP law, the TCPA, was enacted in 2011. See, e.g., Act of May 

21, 2011, 82nd Leg., R.S., ch. 341, § 2, 2011 Tex. Gen. Laws 962, amended by Act of 

May 17, 2019, 86th Leg., R.S., ch. 378, § 5, 2019 Tex. Gen. Laws 684–85. “The [TCPA] 

is a bulwark against retaliatory lawsuits meant to intimidate or silence citizens on matters 

of public concern.” Dall. Morning News, Inc. v. Hall, 579 S.W.3d 370, 376 (Tex. 2019).

The Act’s purpose has remained the same since its inception; namely, “to encourage and 

safeguard the constitutional rights of persons to petition, speak freely, associate freely, 

and otherwise participate in government to the maximum extent permitted by law and, at 

the same time, protect the rights of a person to file meritorious lawsuits for demonstrable 

injury.” TEX. CIV. PRAC. & REM. CODE ANN. § 27.002. “We construe the TCPA liberally to 

effectuate its purpose and intent fully.” Buzbee v. Clear Channel Outdoor, LLC, 616 

S.W.3d 14, 26 (Tex. App.—Houston [14th Dist.] 2020, no pet.). If a defendant believes 

his First Amendment rights are being stifled by the claim filed against him, he may file a 

motion to dismiss under the TCPA. TEX. CIV. PRAC. & REM. CODE ANN. § 27.003(a).

“A two-step process is initiated by motion of a defendant who believes that the 

lawsuit responds to the defendant’s valid exercise of First Amendment rights.” In re 

Lipsky, 460 S.W.3d 579, 586 (Tex. 2015) (orig. proceeding). Under the first step, the 

defendant-movant must show that the claim against him “is based on or is in response to 

[his] exercise of the right of free speech, right to petition, or right of association.” TEX. CIV.

PRAC. & REM. CODE ANN. § 27.003(a); Winstead PC v. Moore, 633 S.W.3d 200, 203 (Tex. 

App.—Dallas 2021, pet. denied). In determining whether the TCPA applies to a plaintiff’s 
13

claims, “the court shall consider the pleadings, evidence a court could consider under 

Rule 166a, Texas Rules of Civil Procedure, and supporting and opposing affidavits stating 

the facts on which the liability or defense is based.” TEX. CIV. PRAC. & REM. CODE ANN.

§ 27.006(a).

If the movant shows that a core First Amendment right is implicated by the nonmovant’s suit, “the trial court must dismiss the lawsuit unless the non-movant ‘establishes 

by clear and specific evidence a prima facie case for each essential element of the claim 

in question.’” Buzbee, 616 S.W.3d at 26 (quoting TEX. CIV. PRAC. & REM. CODE ANN. 

§ 27.005(c)). If the non-movant then satisfies this second step of the TCPA, the trial court 

must deny the motion to dismiss unless “the moving party establishes an affirmative 

defense or other grounds on which the moving party is entitled to judgment as a matter 

of law.” TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(d). “We consider de novo the legal 

questions of whether the Act applies and whether a non-movant has presented clear and 

specific evidence establishing a prima facie case of each essential element of the 

challenged claims.” Buzbee, 616 S.W.3d at 26.

The initial version of the TCPA contained the same definition of “[e]xercise of the 

right of free speech” as the contemporary version. Specifically, it “means a 

communication made in connection with a matter of public concern.” Compare Act of May 

21, 2011, 82nd Leg., R.S., ch. 341, § 2, 2011 Tex. Gen. Laws 962 (amended 2019), with 

TEX. CIV. PRAC. & REM. CODE ANN. § 27.001(3). However, the prior version of the TCPA 

provided that a “matter of public concern” included issues relating to:

(A) health or safety;
14

(B) environmental, economic, or community well-being;

(C) the government;

(D) a public official or public figure; or

(E) a good, product, or service in the marketplace.

Act of May 21, 2011, 82nd Leg., R.S., ch. 341, § 2, 2011 Tex. Gen. Laws 962 (amended 

2019).

The Texas Supreme Court has historically interpreted the TCPA’s provisions 

broadly. See ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895, 900 (Tex. 2017) (per 

curiam) (encouraging courts not to “improperly narrow[] the scope of the TCPA by 

ignoring the Act’s plain language”). In Lippincott v. Whisenhunt, Whisenhunt, a nurse 

anesthetist, sued a medical facility’s administrators for, among other things, defamation. 

462 S.W.3d 507, 509 (Tex. 2015) (per curiam). Whisenhunt alleged that the 

administrators circulated emails with disparaging comments about Whisenhunt. Id. at 

508. These allegations “included claims that Whisenhunt ‘failed to provide adequate 

coverage for pediatric cases,’ administered a ‘different narcotic than was ordered prior to 

pre-op or patient consent being completed,’ falsified a scrub tech record on multiple 

occasions, and violated the company’s sterile protocol policy.” Id. at 510. The supreme 

court concluded that “the provision of medical services by a health care professional 

constitutes a matter of public concern.” Id. (citing Neely v. Wilson, 418 S.W.3d 52, 70 n.12 

& 26 (Tex. 2013)). Accordingly, it held that the TCPA applied to Whisenhunt’s claims. Id.

In ExxonMobil Pipline Co. v. Coleman, Coleman, “a terminal technician” at 

ExxonMobil, “was assigned to perform preventative maintenance tasks, offload 
15

shipments from incoming trucks, and record the fluid volume of various petroleum 

products and additives in storage tanks each night, a process referred to as ‘gauging the 

tanks.’” 512 S.W.3d at 897. Coleman was accused by two of his supervisors of “fail[ing] 

to gauge tank 7840 on August 20, 2012, yet report[ing] that he did.” Id. He was 

subsequently terminated. Id. Coleman sued his supervisors for defamation. Id. In a per 

curiam opinion, the supreme court held that the supervisors’ statements “were made in 

the exercise of the right of free speech under the TCPA,” and “[t]hus, the TCPA applies.” 

Id. at 901–02.

The main point I make by discussing these cases is this: It is easy to cast these 

cases in a light that results in them coming out the other way under the majority’s 

reasoning. These were private citizens criticizing other private citizens for failures made 

in the course of their employment—something that, by definition, affects the parties’ 

pecuniary interests. But the supreme court held that these seemingly private 

communications were nonetheless matters of public concern deserving of the TCPA’s 

protection. See id.; Lippincott, 462 S.W.3d at 510.

III. THE CURRENT TCPA AND THIS CASE

I will now address the current version of the TCPA and how it impacts the case at 

hand.

A. Interpreting the Current TCPA

“Statutory construction is a legal question we review de novo.” City of Rockwall v. 

Hughes, 246 S.W.3d 621, 625 (Tex. 2008). “Our primary objective when construing a 

statute is to ascertain and give effect to the Legislature’s intent.” Tex. Dep’t of Transp. v. 
16

City of Sunset Valley, 146 S.W.3d 637, 642 (Tex. 2004). In interpreting an undefined term, 

we construe the statute’s words according to their plain and common meaning, unless a 

contrary intention is apparent from the context, or unless the construction leads to absurd 

results. Hughes, 246 S.W.3d at 625–26.

This case turns on the meaning of “matter of public concern.” The TCPA’s new 

definition of “matter of public concern” tracks, to the detriment of the statute’s clarity, the 

Supreme Court’s language in Snyder v. Phelps. 562 U.S. 443, 453 (2011). See Amy 

Bresnen et al., Targeting the Texas Citizen Participation Act: The 2019 Texas 

Legislature’s Amendments to a Most Consequential Law, 52 ST. MARY’S L.J. 53, 86 (2020) 

(“The new statutory language in Sections 27.001(7)(B) and (C) is nearly identical to 

language in the Snyder Court’s holding[.]”). In Snyder, the Court explained, “Speech deals 

with matters of public concern when it can ‘be fairly considered as relating to any matter 

of political, social, or other concern to the community,’ . . . or when it ‘is a subject of 

legitimate news interest; that is, a subject of general interest and of value and concern to 

the public,’ . . . .” 562 U.S. at 453 (citations omitted).

The Legislature chose not to require a “matter of public concern” to be “a subject 

of legitimate news interest” or “a subject of general interest . . . to the public”. Compare 

Snyder, 562 U.S. at 453, with TEX. CIV. PRAC. & REM. CODE ANN. § 27.001(7)(C). Rather, 

the TCPA now provides that a “matter of public concern” means a statement regarding:

(A) a public official, public figure, or other person who has drawn 

substantial public attention due to the person’s official acts, fame, 

notoriety, or celebrity;

(B) a matter of political, social, or other interest to the community; or
17

(C) a subject of concern to the public.

TEX. CIV. PRAC. & REM. CODE ANN. § 27.001(7).

What I glean from the Legislature’s decision to borrow language from the Snyder 

decision is that other facets of its holding may also be instructive in determining whether 

a particular communication involves a matter of public concern. To that end, the Snyder 

Court further held that “[d]eciding whether speech is of public or private concern requires 

us to examine the ‘content, form and context’ of that speech, ‘as revealed by the whole 

record.’” Id. (cleaned up) (quoting Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 

472 U.S. 749, 761 (1985) (plurality op.)); see Hayman v. Khan, No. 14-20-00745-CV, 

2023 WL 4873248, at *3 (Tex. App.—Houston [14th Dist.] Aug. 1, 2023, no pet.) 

(analyzing the “context, form, and context” of speech “as revealed by the whole record” 

to determine whether the TCPA applied to a claim (citing Snyder, 562 U.S. at 453)). “In 

considering content, form, and context, no factor is dispositive, and it is necessary to

evaluate all the circumstances of the speech, including what was said, where it was said, 

and how it was said.” Snyder, 472 U.S. at 454.

The “content” of Neuman’s emails vacillates. For instance, at times, Neuman 

accuses certain board members of criminal and otherwise fraudulent activity. At other 

times, the scope of Neuman’s emails is niche, referring to RAAR’s bylaws, its internal 

operating procedures, and other minutiae. But overall, the message that formed the basis 

of the Board’s complaint is clear—Neuman told others that RAAR’s board members are 

corrupt. Specifically, the Board accused Neuman of making

false allegations that [the Board] engaged in discrimination, intentional 
18

humiliation of [Neuman], unethical behavior, antitrust violations, 

disparagement of [Neuman], breach of their fiduciary duties as officers and 

board members, abuse of authority, failing to act transparently, wasting 

RAAR financial resources, and other such allegations.

Antitrust violations are criminal acts under state law, punishable by up to three years in 

prison and by a fine of up to $5,000. See TEX. BUS. & COM. CODE ANN. § 15.22(a). 

“[A]ccusations that a person engaged in criminal conduct is considered a matter of public 

interest under the TCPA.” Whitelock v. Stewart, 661 S.W.3d 583, 597 (Tex. App.—El 

Paso 2023, pet. denied); see Garcia v. Semler, 663 S.W.3d 270, 281 (Tex. App.—Dallas 

2022, no pet.) (“It is well-settled that even after the 2019 amendments, ‘criminal acts are 

matters of public concern.’” (quoting Austin v. Amundson, No. 05-22-00066-CV, 2022 WL 

16945911, at *3 (Tex. App.—Dallas Nov. 15, 2022, no pet.) (mem. op.))); see also Lyden 

v. Aldridge, 2023 WL 6631528, at *3 (Tex. App.—Fort Worth Oct. 12, 2023, no pet.) (mem. 

op.) (“By taking the position that the alleged communication at the heart of his lawsuit 

constitutes an accusation of criminal conduct, Aldridge has, in effect, conceded that it 

involved a matter of public concern . . . .”). And “courts have held that communications 

accusing an individual of fraudulent activity can be considered a matter of public concern 

for purposes of the TCPA.” Whitelock, 661 S.W.3d at 597 (collecting cases). In addition 

to accusing the Board of criminal and fraudulent activity, Neuman also threatened to 

share his concerns with the Department of Justice. See Baylor Scott & White v. Project 

Rose MSO, LLC, 633 S.W.3d 263, 280 (Tex. App.—Tyler 2021, pet. denied) (explaining 

that appellee’s threat to go to the media with certain concerns “further bolster[ed] the 

connection with the communications and the community’s interest in the venture and its 

dissolution”).
19

I will analyze the “context” and “form” of the communications together. Neuman 

disseminated the communications at issue via an email listserv. Neuman sent several 

lengthy emails to the listserv throughout the months of October, November, and 

December of 2022. The record reveals that this listserv consisted of RAAR’s 

membership—approximately 300 real estate professionals.

I would hold that Neuman’s communications were “made in connection with a 

matter of public concern” because they regard “a matter of political, social, or other 

interest to the community.” TEX. CIV. PRAC. & REM. CODE ANN. § 27.001(3), (7)(B). 

“Statutory history concerns how the law changed, which can help clarify what the law 

means.” Brown v. City of Houston, 660 S.W.3d 749, 755 (Tex. 2023). As noted, the prior 

version of the statute defined matter of public concern to include “an issue related 

to . . . environmental, economic, or community well-being.” See Act of May 20, 2019, 86th 

Leg., R.S., ch. 378, § 3 2019 Tex. Gen. Laws 684 (emphasis added). In Adams v. Starside 

Custom Builders, LLC, the supreme court interpreted this provision as it pertained to a 

lone resident’s complaints about a neighborhood developer and the HOA. 547 S.W.3d 

890, 891 (Tex. 2018). The resident, Adams, posted allegedly defamatory communications 

to a blog and emailed other allegedly defamatory communications to the HOA president, 

residents of the neighborhood, and the builders of the local development. Id. at 893. In 

these communications, Adams accused the HOA and the neighborhood developer of 

various fraudulent and criminal activity, of cutting down trees, and of making “life 

miserable for all involved.” Id. In interpreting the TCPA, the supreme court held that “[t]he 

allegation that a neighborhood developer and the HOA it controls have chopped down 
20

residents’ trees, generally made life miserable for the residents, and engaged in 

unspecified other corrupt or criminal activity is of public concern for the residents of the 

neighborhood.” Id. at 897. The Adams court further theorized that, “in the context of a 

small residential neighborhood community . . . , any allegation of malfeasance and 

criminality by the developer and the HOA likely concerns the well-being of the community 

as a whole” since HOAs “wield substantial, quasi-governmental powers in many 

neighborhoods.” Id. at 896.

Like the HOA in Adams, RAAR also wields quasi-governmental authority. Attached 

to Neuman’s petition and incorporated by reference were RAAR’s bylaws, which indicate 

that the association, in conjunction with NAAR, holds the trademarks for the terms 

“realtor” and “realtors.” Because of this, RAAR has the “authority to control, jointly and in 

full cooperation with” NAAR the use of the terms “realtor” and “realtors” within its 

jurisdiction.4 The bylaws further explain that its members in good standing “shall have the 

privilege of using the terms [realtor] and [realtors] in connection with their places of 

business within the state or a state contiguous thereto so long as they remain [realtor] 

members in good standing. No other class of members shall have this privilege.” In other 

words, RAAR holds a monopoly on whether real estate professionals working in Aransas 

County may rightfully call themselves “realtors.” It may be reasonably assumed that a real 

estate professional’s inability to wear the mantle of “realtor” could affect his livelihood.

Additionally, just as an HOA promulgates rules and restrictions for its residents, 

RAAR does the same. Applicants seeking RAAR membership must, among other things, 

4 The bylaws explain that RAAR’s jurisdiction is “all of Aransas County.”
21

maintain a valid real estate broker’s license (or other similar licensure), have “no record 

of official sanctions involving unprofessional conduct,” and, upon request, pass a written 

examination if RAAR’s membership committee determines such an examination is 

necessary. An applicant who becomes a RAAR member may still “be reprimanded, fined, 

placed on probation, suspended, or expelled by the Board of Directors” if, after a hearing, 

the member is found to have violated RAAR’s bylaws or a rule the association adopted 

that does not conflict with its bylaws.

Two of our sister courts have split on the precedential value of Adams, given the 

intervening legislative amendments to the TCPA. Compare Rivas v. Lake Shore Cmty. 

Ass’n, No. 01-22-00121-CV, 2023 WL 3063409, at *13 (Tex. App.—Houston [1st Dist.] 

Apr. 25, 2023, no pet.) (mem. op.) (concluding that the holding in Adams only applied to 

“the former version of the TCPA, which applied a less exacting standard and included a 

broader definition of the phrase a ‘matter of public concern’”), with Cobb Dev. v. McCabe, 

No. 03-21-00524-CV, 2023 WL 4003513, at *6 n.6 (Tex. App.—Austin June 15, 2023, 

pet. filed) (explaining that, despite the intervening amendments to the TCPA, “Adams 

remains instructive because the supreme court made clear that Adams’ allegation was a 

matter of public concern even if viewed ‘apart from the non-exclusive statutory list.’” 

(quoting Adams, 547 S.W.3d at 896)).

I do not agree with the First Court of Appeals that the Legislature’s amendment of 

the TCPA nullifies the precedential value of Adams’s interpretation of the term 

“community.” “We presume the Legislature is aware of relevant case law when it enacts 

or modifies statutes.” In re Allen, 366 S.W.3d 696, 706 (Tex. 2012) (orig. proceeding). If 
22

the Legislature wished to indicate that it disapproved of the supreme court’s interpretation 

of the term “community” in Adams, it should not have reinserted the term “community” 

back into the statute without an express definition. See Tex. Dep’t of Fam. & Protective 

Servs. v. Mitchell, 510 S.W.3d 199, 202 (Tex. App.—Houston [1st Dist.] 2016, no pet.) 

(“The Legislature can rectify a mistaken judicial interpretation, and if it does not do so, 

there is little reason for courts to reconsider a prior statutory construction.”); Antonin 

Scalia & Bryan A. Garner, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 255 (2012)

(“The legislature, naturally, can change the law whose meaning the prior judicial 

interpretation established. But once that meaning has been established, the meaning 

cannot change ‘in light of’ a later statute with which a different meaning would be more 

compatible.”).

Instead, the Legislature chose to define matters of public concern to include “a 

matter of political, social, or other interest to the community.” TEX. CIV. PRAC. & REM. CODE 

ANN. § 27.001(7)(B) (emphasis added). We should not judicially amend the statute in 

question to insert a different term in place of “community” when the Legislature itself 

declined to do so. Therefore, I would conclude that Adams is still instructive when 

interpreting the term “community” under the current version of the TCPA. And to that end, 

just as Adams’s allegations of corruption were concerning to a “small residential 

neighborhood community,” so too would Neuman’s allegations of corruption be 

concerning to the local real estate community. See 547 S.W.3d at 896.

B. Commercial Speech; Distinguishing McLane Champions & Creative Oil

The majority relies on Creative Oil and McLane Champions to conclude that 
23

Neuman’s accusations were not relevant to a public audience. But the facts of those 

cases demonstrate that they do not warrant the conclusion the majority draws. In Creative 

Oil, a ranch entered into an oil and gas lease with Creative Oil. Creative Oil & Gas, LLC 

v. Lona Hills Ranch, LLC, 591 S.W.3d 127, 130 (Tex. 2019). Creative Oil sued the ranch 

for telling third-party purchasers that the lease had expired and that they should stop 

making payments on the lease. Id. The ranch filed a TCPA motion to dismiss. Id. The 

supreme court ultimately held that the motion to dismiss should not have been granted, 

explaining that “the communication about goods or services must have some relevance 

to a wider audience of potential buyers or sellers in the marketplace, as opposed to 

communications of relevance only to the parties to a particular transaction.” Id. at 134. It 

further held that “[a] private contract dispute affecting only the fortunes of the parties 

involved is simply not a ‘matter of public concern’ under any tenable understanding of 

those words.” Id. at 137.

In McLane Champions, the supreme court represented that the claims at issue 

were based “solely on private business negotiations in an arms-length transaction subject 

to a nondisclosure agreement.” McLane Champions, LLC v. Hous. Baseball Partners 

LLC, 671 S.W.3d 907, 917 (Tex. 2023). Specifically, the suit focused on the rates that 

Comcast allegedly proposed to air certain sports games. Id. The Court referred to this 

claim as “a garden-variety fraud and breach-of-contract dispute between a private buyer 

and a private seller regarding statements made during a private negotiation.” Id. at 919.

In my opinion, Creative Oil, McLane Champions, and the 2019 amendments were 

all attempts to better align Texas’s TCPA jurisprudence with the United States Supreme 
24

Court’s jurisprudence on commercial speech. “Commercial speech is generally afforded 

less constitutional protection than other forms of constitutionally guaranteed expression.” 

Pruett v. Harris Cnty. Bail Bond Bd., 249 S.W.3d 447, 456 (Tex. 2008). And commercial 

speech is defined as “expression related solely to the economic interests of the speaker 

and its audience.” Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 

U.S. 557, 561 (1980); see Amalgamated Acme Affiliates, Inc. v. Minton, 33 S.W.3d 387, 

394 (Tex. App.—Austin 2000, no pet.).

In Dun & Bradstreet, false information in an individual’s credit report did not involve 

a matter of public concern as it “was speech solely in the individual interest of the speaker 

and its specific audience,” although even that conclusion was only able to garner 

agreement among a plurality of justices. See 472 U.S. at 762. The United States Supreme 

Court noted that this type of speech was “solely motivated by the desire for 

profit, . . . . [and] was also more objectively verifiable than speech deserving of greater 

protection.” Id. at 762.

In working on the 2019 amendments to the TCPA, legislative staff noted that 

“[s]ince its enactment in 2011, the broadly worded Texas anti-SLAPP law has been used 

to put an early end to lawsuits in which core constitutional rights have not been invaded, 

including cases involving trade secrets, employment non-compete agreements and 

lawyer disciplinary actions.” House Research Organization, Bill Analysis, Tex. H.B. 2730, 

86th Leg., R.S. (2019). As previously noted, the prior version of the TCPA included within 

its “matters of public concern” ambit “a good, product, or service in the marketplace.” See 

Act of May 21, 2011, 82nd Leg., R.S., ch. 341, § 2, 2011 Tex. Gen. Laws 962 (amended 
25

2019). But the TCPA also includes a commercial speech exemption which provides that 

the TCPA does not apply to

a legal action brought against a person engaged In the business of selling 

or leasing goods or services, if the statement or conduct arises out of the 

sale or lease of goods, services, or an insurance product, insurance 

services, or a commercial transaction in which the intended audience is an 

actual or potential buyer or customer[.]

TEX. CIV. PRAC. & REM. CODE ANN. § 27.010(a)(2).

While the exemption does not expressly state that statements are unprotected only 

when they are made in the defendant’s capacity as a salesperson, “that is the only 

reasonable and logical construction of the exemption when considered within its statutory 

context.” Castleman v. Internet Money Ltd., 546 S.W.3d 684, 688 (Tex. 2018). Courts had 

the difficult task of interpreting these two provisions together in a harmonious manner

while they were both in effect. See id. at 690 (“[T]he commercial-speech exemption 

applies only to certain communications related to a good, product, or service in the 

marketplace . . . .”). But when the 2019 amendments rolled in, only the commercial speech 

exemption survived.

The distinction between commercial speech and other varieties of constitutionally 

protected speech is referred to as “common-sense,” and the Supreme Court has listed as 

examples of commercial speech, inter alia, “the exchange of information about securities,” 

“corporate proxy statements,” and “the exchange of price and product information among 

competitors.” Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 455–56 (1978). It is easy to 

see where price negotiations, see McLane Champions, 671 S.W.3d at 917, and 

discussion of payments on an oil lease, see Creative Oil, 591 S.W.3d at 130, fit in with 
26

these less protected types of speech. But comparing the sophisticated, arms-length 

business dealings of private entities with Neuman’s email rants to his fellow real estate 

professionals is like comparing chalk and cheese. In my opinion, it is far more logical to 

compare Neuman’s communications to Adams’s disgruntled emails and blog posts. See 

Adams, 547 S.W.3d at 893; see also Patel v. Patel, No. 14-18-00771-CV, 2020 WL 

2120313, at *7 (Tex. App.—Houston [14th Dist.] May 5, 2020, no pet.) (mem. op.) 

(interpreting the previous version of the TCPA and holding that allegations that a member 

of a non-profit’s board of directors was mentally unfit and stole funds concerned “the wellbeing of the community the Foundation seeks to serve”).

The Board asserts, and the majority seemingly agrees, that “[t]his private dispute 

merely affects the fortunes of the litigants,” and that Neuman made “quintessentially 

private statements to a narrow group of private trade group members about an internecine 

conflict.” It is unclear to me how Neuman’s fortune could be affected by accusing the 

Board of corruption, other than via the Board’s retaliation in bringing this lawsuit. The 

Board’s assertion also ignores the interests of RAAR’s members, who, as the Board 

attested in its pleading, “are extremely upset by [Neuman’s] misleading and false 

communications.” See Miranda v. Byles, 390 S.W.3d 543, 554 (Tex. App.—Houston [1st 

Dist.] 2012, pet. denied) (“A matter can be a public issue because people in the public 

are discussing it or because people other than the immediate participants in the 

controversy are likely to feel the impact of its resolution.”). Although Neuman brought his 

claims both in his individual capacity and on behalf of RAAR as an association, no other 

individual members of RAAR were joined as parties to this dispute. Thus, by the Board’s 
27

own pleading, it is apparent that Neuman’s communications were of interest to a wider 

audience than just the private parties involved. See id.

Ultimately, the statements Neuman made upon which the Board’s claim is based 

concern corruption, criminal activity, and the perceived retaliation and discrimination 

against Neuman by the Board. These accusations are of interest both to RAAR’s 

membership and to a broader, public audience. See Adams, 547 S.W.3d at 897; see also 

Patel v. Patel, 2020 WL 2120313, at *7. The TCPA demands a rigorous and fact-intensive 

de novo review. That is what I have applied here. And in doing so, I would conclude that 

Neuman met his burden to show that the Act applies to the Board’s defamation claim.

C. Second TCPA Step

Under the second step of the TCPA, the plaintiff must show “by clear and specific 

evidence a prima facie case for each essential element of the claim in question” to avoid 

dismissal. TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(c). “In a suit by a private person 

against a non-media defendant, the elements for a defamation claim are (1) the 

publication of a statement of fact to a third party, (2) that was defamatory concerning the 

plaintiff, (3) with the requisite degree of fault, and (4) damages, in some cases.” Fawcett 

v. Rogers, 492 S.W.3d 18, 25 (Tex. App.—Houston [1st Dist.] 2016, no pet.). “[W]hen a 

defamation plaintiff is a private individual, he must establish that the defendant acted 

negligently regarding the truth of the statement.” Day v. Fed’n of State Med. Bds. of the 

U.S., 579 S.W.3d 810, 822 (Tex. App.—San Antonio 2019, pet. denied). “In the 

defamation context, negligence is defined ‘as the failure to investigate the truth or falsity 

of a statement before publication, and the failure to act as a reasonably prudent person.’” 
28

Id. (quoting Harwood v. Gilroy, No. 04-16-00652-CV, 2017 WL 2791321, at *6 (Tex. 

App.—San Antonio June 28, 2017, no pet.) (mem. op.)). “In other words, the plaintiff must 

establish that the defendant knew or should have known that the defamatory statement 

was false.” Id.

The Board does not discuss what “clear and specific evidence” demonstrates that 

Neuman “knew or should have known” that his statements were false. See id.; TEX. CIV.

PRAC. & REM. CODE ANN. § 27.005(c). Nor does the Board actually allege that Neuman 

“knew or should have known” that his statements were false. See Day, 579 S.W.3d at 

822. In its petition, the Board alleged that Neuman “recklessly” spread misinformation; it

never alleged Neuman was negligent. See Monsanto Co. v. Milam, 494 S.W.2d 534, 536 

(Tex. 1973) (“The specific allegation controls over the general allegation.”). “Reckless 

disregard is a subjective standard, requiring evidence that” Neuman “entertained serious 

doubts as to the truth of the [communication] at the time it was published.” Hearst Corp. 

v. Skeen, 159 S.W.3d 633, 637 (Tex. 2005) (per curiam). But regardless of which liability 

standard we hold them to, the Board has not presented any evidence that Neuman’s 

acted with the requisite degree of fault. Accordingly, its defamation claim should fail.

Additionally, many of Neuman’s statements referred to less than the whole of the 

board. For instance, Neuman stated that “a few of the RAAR members in leadership 

positions” were engaging in practices that violated antitrust laws, but he did not identify 

which members he was accusing. If a statement does not concern a person, “it cannot 

defame them, nor can it injure their reputations.” Harvest House Publishers v. Loc. 

Church, 190 S.W.3d 204, 213 (Tex. App.—Houston [1st Dist.] 2006, pet. denied). “Under 
29

the group libel doctrine, a plaintiff has no cause of action for a defamatory statement 

directed to some or less than all of the group when there is nothing to single out the 

plaintiff.” Id. To the extent that many of Neuman’s communications do not identify to whom 

he is referring, the board members have failed to show that those communications 

concern them. See id. Based on the above, I would conclude that the Board has not met 

its burden to prove by clear and specific evidence a prima facie case for their defamation 

claim. I would sustain Neuman’s sole issue.5

IV. CONCLUSION

I agree with the majority that the TCPA’s scope has narrowed, but I do not agree 

with the extent to which the majority narrows it. The Board’s primary purpose in bringing 

this litigation is to silence Neuman, and the primary purpose of the TCPA is to prevent the 

Board from succeeding in doing so. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.002. The

majority holds that allegations of criminal activity, corruption, humiliation, and 

discrimination enjoy no free speech protection in Texas. Because I cannot conclude that 

this is correct under any tenable reading of the TCPA, I respectfully dissent.

GINA M. BENAVIDES

Justice

Delivered and filed on the

29th day of February, 2024.

5 Given this disposition, I would also conclude that the trial court’s award of attorney’s fees to the 

Board was in error, and I would remand to the trial court for a determination of whether Neuman is entitled 

to attorney’s fees. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.009 (describing when an award of attorney’s 

fees is appropriate in the context of a TCPA motion to dismiss).