CANTU v. HALL (2026)

OPINION

In this defamation case, we must determine whether a brother's Facebook posts accusing his sister of being a slut, liar, thief, and abuser of their mother were made in connection with a matter of public concern—was it a “matter of political, social, or other interest to the community,” or a “subject of concern to the public”? Considering the pleadings and limited evidence regarding the content, form, and context of the communications, we answer the question: No. Thus, we affirm the trial court's order denying the brother's motion to dismiss under the Texas Citizens Participation Act (TCPA).

I. Background

Elizabeth Hall and her husband David Hall sued her brother Manuel Cantu Junior for defamation. Elizabeth alleged that she was their mother's caregiver for many years until Cantu “coordinated a scheme to interfere with [her] relationship with her mother.” Cantu's effort “included defamatory writings and statements made to [their mother] which were designed to alienate her” from Elizabeth.

The Halls alleged that Cantu also used their mother's Facebook account to publish defamatory statements, “both falsely purporting to be the statement of [their mother] and at times with [Cantu] taking full credit for the statements.” The Halls alleged several specific written statements or categories of statements on Facebook that were false and defamatory:

• The Halls “stole money from [their] mother”;

• Elizabeth “physically and emotionally abused her mother”;

• Elizabeth “faked or lied about a PTSD diagnosis”;

• Elizabeth “was sexually promiscuous”; and

• Elizabeth “abandoned her mother.”

Cantu filed a motion to dismiss under the TCPA, contending that his statements were an exercise of his right of free speech. He requested dismissal of the entire suit because the “public Facebook posts accusing Plaintiffs of financially exploiting, physically abusing, and emotionally abusing Defendant's elderly mother” are “criminal acts under Texas law,” and are “expressly recognized under the TCPA as matters of public concern.” Cantu attached no evidence to his motion.

The Halls filed a response, arguing among other things that the statements were not about a matter of public concern. The Halls attached a declaration from David and “a recent sample” of the Facebook postings. The exhibit includes an original post from the mother's account that has an innocuous image stating, “People don't abandon people they love. People abandon people they were using.” The original post has two reactions and two comments, one of which is purportedly a comment by Cantu using the mother's account. The exhibit includes the following comments allegedly attributable to Cantu:

• Liz is a complete piece of shit along with desperate Dave. They stole money from my mom and I caught them!

• MC-anyone on board with someone who abuses their mother especially through physical and emotional abuse, are completely dead to me. You know who you are, “not taking sides”. Don't come around, ever!

• Liz, you will always be hated. You tried to do to me what you did to Monica years ago. You messed with the wrong person cause I will fight injustice and elder abuse! Bitch!

• Liz, you are a thief, mooch, slut, and Monica and I never liked you.1

Cantu filed a reply and attached an affidavit from their mother detailing that Elizabeth had obtained a loan from their parents in the “early 2000's” when she “had no intent to pay it back, under false pretenses.” Their mother testified about several other instances in which Elizabeth “unilaterally transferred” money from the mother's account to the Halls' accounts in 2021 and 2022 during a time when Elizabeth had “control over [the mother's] accounts.”²

The Halls filed a reply and attached part of a 2022 letter from Cantu's attorney expressing Cantu's concern about Elizabeth's “role in having [Cantu] removed as co-trustee, her control over Trust assets, and her influence over his mother.” The letter also discussed Cantu's concern that their mother had “suddenly stopped communicating” with him, his wife, and his child.

The trial court denied the motion to dismiss. Cantu appeals.

II. Analysis

In his sole issue on appeal, Cantu contends that the trial court erred by denying his motion to dismiss because the Halls' retaliatory act of suing him for defamation violated his right to speak freely on matters of public concern.

A. TCPA Legal Principles

To obtain dismissal under the TCPA, at the outset a defendant such as Cantu has the burden to demonstrate that the legal action is based on or in response to the exercise of a protected right such as the right of free speech. Tex. Civ. Prac. & Rem. Code § 27.005. If a defendant does not satisfy this burden, the motion should be denied because the TCPA does not apply. See, e.g., McLane Champions, LLC v. Hous. Baseball Partners LLC, 671 S.W.3d 907, 920 (Tex. 2023).

Under the statute, “ ‘Exercise of the right of free speech’ means a communication made in connection with a matter of public concern.” Id. § 27.001(3). In turn, “matter of public concern” means one of three things, although Cantu contends that only the latter two are potentially at issue here:

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

(C) a subject of concern to the public.

Id. § 27.001(7).

Although not fully coextensive, this definition generally aligns with the meaning of “matter of public concern” under First Amendment jurisprudence. See Welsh v. River Hollow Ass'n, 654 S.W.3d 505, 512 n.4 (Tex. App.—Houston [14th Dist.] 2022, pet. denied); see also Creative Oil & Gas, LLC v. Lona Hills Ranch, LLC, 591 S.W.3d 127, 135 (Tex. 2019). It stems from the common law tort of invasion of privacy ³ and constitutional limitations placed on the recovery of damages for torts involving speech.⁴ A 2019 amendment to the TCPA incorporating this definition reflects the Legislature's purpose of narrowing the scope of the TCPA from its prior broader applications. See, e.g., Hayman v. Khan, 693 S.W.3d 444, 449-50 (Tex. App.—Houston [14th Dist.] 2023, no pet.); Kott-Looney v. Aiello, No. 01-23-00941-CV, 2026 WL 2050010, at *6 (Tex. App.—Houston [1st Dist.] July 16, 2026, no pet. h.) (mem. op.).

For the TCPA to apply, communications upon which the suit is based must have “some relevance to a public audience when they are made.” McLane Champions, 671 S.W.3d at 916. This requirement “ensures that the TCPA is not transformed into a far-reaching procedural mechanism for obtaining early dismissal of cases well beyond the statute's express purpose.” Id. at 917. The purpose of the statute—safeguarding constitutional rights while simultaneously protecting plaintiffs' rights to file meritorious lawsuits for demonstrable injuries—“provides context for the statute's definitions.” Id.; see also Sanchez v. Striever, 614 S.W.3d 233, 243 (Tex. App.—Houston [14th Dist.] 2020, no pet.) (evaluating whether defendant's conduct was protected speech under the Texas and United States Constitutions because courts cannot “construe the act's terms liberally and faithfully to its fundamental purpose blind to the constitutional rights the act is designed to safeguard”).

Thus, when applying the statutory definition of “matter of public concern” in the TCPA, this court and others have determined we should consider the “content, form, and context of the speech,” consistent with the term's use in constitutional applications. E.g., Moore v. Reed, No. 14-20-00463-CV, 2022 WL 1180116, at *2 (Tex. App.—Houston [14th Dist.] Apr. 21, 2022, no pet.) (mem. op.) (citing Brady v. Klentzman, 515 S.W.3d 878, 884 (Tex. 2017), and Snyder v. Phelps, 562 U.S. 443, 453, 131 S.Ct. 1207, 179 L.Ed.2d 172 (2011)).⁵ “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, 562 U.S. at 454, 131 S.Ct. 1207.

Despite the plethora of case law addressing the question of what is a matter of public concern in various contexts, “the boundaries of the public concern test are not well defined.” Id. at 452, 131 S.Ct. 1207. This inquiry is necessarily fact-specific and must be determined on a case-by-case basis. See Shepard v. Voss, No. 01-23-00515-CV, 2024 WL 748396, at *7 (Tex. App.—Houston [1st Dist.] Feb. 22, 2024, no pet.) (mem. op.) (noting that TCPA application “depends on the facts of each case”); cf., e.g., Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 474 (Tex. 1995) (regarding invasion of privacy, “determination whether a given matter is one of legitimate public concern must be made in the factual context of each particular case”); Chavez v. Brownsville Indep. Sch. Dist., 135 Fed. App'x 664, 673 (5th Cir. 2005) (regarding public-employee rights, noting the “lack of precision inherent in such a fact-intensive and holistic analysis”).

When evaluating the content, form, and context of speech, we will consider the whole record to determine if a communication was made in connection with a matter of public concern. Hayman, 693 S.W.3d at 450 (citing Snyder, 562 U.S. at 453, 131 S.Ct. 1207). This review includes the pleadings and evidence submitted by the parties, viewed in the light most favorable to the nonmovant, and favoring the conclusion that claims are not predicated on protected expression. See Sanchez, 614 S.W.3d at 242, 246.

Whether the movant has demonstrated that the plaintiff's claims are based on or in response to the exercise of a protected right is a question of law we review de novo. Sparks v. McLean, 735 S.W.3d 927, 930–33 (Tex. App.—Houston [14th Dist.] 2026, no pet.). Similarly, whether speech is about a matter of public concern is a question of law. Servello v. Villasport LLC, No. 14-24-00426-CV, 2026 WL 1733289, at *5 (Tex. App.—Houston [14th Dist.] June 16, 2026, no pet. h.) (mem. op.).

B. Allegations of Criminal Conduct: No Bright Line Rule

Cantu contends, “Because each complained-of statement involves allegations of criminal activity, or is reasonably related to those statements that do, the publications as a whole are based on matters of public concern and the TCPA applies to Appellees' entire action.” Cantu only points to his statements regarding “theft” and “elder abuse,” suggesting that there is “no question that criminal acts are matters of public concern.” In his analysis, he does not cite any case from this court.

But, this court has rejected adopting a bright line rule that would bring within the ambit of the TCPA's definition of “matter of public concern” every imaginable allegation of criminal conduct: “An accusation that a person has committed a crime does not, standing alone, establish that the speech was on a matter of public concern.” Saks & Co., LLC v. Li, 653 S.W.3d 306, 317 (Tex. App.—Houston [14th Dist.] 2022, no pet.).

This is not a unique statement of the law. See Gorman v. Rensselaer Cnty., 910 F.3d 40, 46 (2d Cir. 2018) (“No authority supports the argument that reporting an alleged crime always implicates matters of public concern.” (citation modified)). See generally Eugene Volokh, One-to-One Speech vs. One-to-Many Speech, Criminal Harassment Laws, and “Cyberstalking,” 107 Nw. U. L. Rev. 731, 786 (2013) (“The bottom line is that lower courts haven't reached any clear answer as to when an allegation of a crime is a matter of public concern.”). And it should come as no surprise, given the fact-intensive nature of the inquiry. See, e.g., Snyder, 562 U.S. at 454, 131 S.Ct. 1207.

Cantu's brief, however, identifies authority supportive of a bright line rule. The Fort Worth court of appeals appears to have adopted such a rule, holding that a plaintiff who alleges in their petition that the defendant accused them of a crime “concede[s] that it involved a matter of public concern—and thus that his lawsuit falls under the auspices of the TCPA.” Lyden v. Aldridge, No. 02-23-00227-CV, 2023 WL 6631528, at *3 (Tex. App.—Fort Worth Oct. 12, 2023, no pet.) (mem. op.). The court reached this conclusion without considering the content, form, and context of the communications at issue. See id. But see Sasano v. Niemela-Waller, No. 02-20-00378-CV, 2021 WL 3679242, at *3 (Tex. App.—Fort Worth Aug. 19, 2021, no pet.) (mem. op.) (acknowledging content, form, and context inquiry). To the extent the Fort Worth court or others have relied on isolated snippets from Brady v. Klentzman, which partially quoted Cox Broadcasting Corp. v. Cohn, we explained in Saks why these cases do not support the adoption of a bright line rule. See Saks, 653 S.W.3d at 316–17. The fact that the statements in those cases related to governmental proceedings and governmental misconduct was of significant importance, given the free speech right that the First Amendment secures. See Cox Broadcasting, 420 U.S. at 492–97, 95 S.Ct. 1029 (discussing public's interest in public records and governmental proceedings); Brady, 515 S.W.3d at 884 (emphasizing paramount public interest in free flow of information about public officials, including misconduct by police chief who was the subject of newspaper article).

Our conclusion is buttressed by the decision in McLane Champions, LLC v. Houston Baseball Partners LLC, which clarified that communications need to be more than just tangentially related to a subject of concern to the public. See 671 S.W.3d at 915–16 & n.9. The fact that communications may be about a subject that is generally of public interest—such as a professional sports team like the world champion Houston Astros—“does not render the specific communications at issue relevant to a public audience when they were made.” Id. at 919. Likewise, although the commission of crime is generally of interest to the public,⁶ this general interest does not necessarily mean that Cantu's specific statements about his family members were relevant to a public audience when made. We will consider his statements' content, form, and context in light of the entire record.

C. Content, Form, and Context: Not a Matter of Public Concern

Cantu, however, makes no argument addressing the content, form, and context of his statements. He supplied the court with no favorable evidence, and his motion relied exclusively on the Halls' petition allegations.

Regarding the form of the speech, some allegations and evidence in the record suggest that some statements were made on the social media platform Facebook, but there is no evidence that these posts were widely disseminated or that the Halls' alleged theft from their mother had been of concern to anyone other than these family members. Cf. Whitelock v. Stewart, 661 S.W.3d 583, 590–91 (Tex. App.—El Paso 2023, pet. denied) (allegations of animal neglect made to police and posted on social media were made in connection with matters of public concern; noting that plaintiff had been arrested for the offenses, local newspaper published a story about arrest, controversy garnered national attention, individuals across the country commented about it on social media, and third-parties reposted the accusations thousands of times). Disseminating information publicly does not transform an otherwise private matter into a matter of public concern. Crist v. Spung, No. 01-20-00736-CV, 2022 WL 3649360, at *7 (Tex. App.—Houston [1st Dist.] Aug. 25, 2022, pet. denied) (mem. op.); see also Snead v. Redland Aggregates Ltd., 998 F.2d 1325, 1328, 1330 (5th Cir. 1993) (press release alleging theft, espionage, and piracy was not about a matter of public concern).

Regarding the content and context of the speech, it is significant that the communications arose from a private family dispute about money and each sibling's feelings of alienation from their mother. There is no evidence that the matters about which Cantu communicated affected anyone's interests other than Cantu, the Halls, and their mother. See Sampson v. Hill-Wald, LLC, No. 14-22-00327-CV, 2023 WL 107142, at *5–6 (Tex. App.—Houston [14th Dist.] Jan. 5, 2023, no pet.) (mem. op.) (movant failed to demonstrate application of TCPA based on communication alleging volleyball club's financial malfeasance when communications related “only to the interests of the parties and other parents with an interest in the volleyball club, not the public at large” and appellants failed to provide “any contextual evidence” demonstrating a matter of public concern). A “private dispute affecting only the fortunes of the private parties involved is simply not a ‘matter of public concern’ under any tenable understanding of those words.” Hayman, 693 S.W.3d at 449–50 (Tex. App.—Houston [14th Dist.] 2023, no pet.).

Nothing in the record suggests that the alleged theft or abuse of their mother posed a danger to others in the community, would be of particular interest to anyone in the public, or involved any report to law enforcement, governmental investigation, arrest, governmental proceeding, or public record. Compare Servello v. Villasport LLC, No. 14-24-00426-CV, 2026 WL 1733289, at *1–2, *4–6 & n.11 (Tex. App.—Houston [14th Dist.] June 16, 2026, no pet. h.) (mem. op.) (collecting cases and holding that communications about sexual abuse of a child at gym's daycare, including comments about arrest of suspect, were made in connection with matter of public concern), and Walgreens v. McKenzie, 713 S.W.3d 394, 401 (Tex. 2025) (public accusation of theft from business establishment also made directly to police was communication made in connection with matter of public concern), with Saks, 653 S.W.3d at 317–18 (no matter of public concern under TCPA based on store employee's statement to plaintiff's friend that plaintiff stole $150 from the friend; statement was made only to alleged victim, and plaintiff had not been arrested or placed under investigation for this theft); see also Williams v. Roche, No. 10-23-00042-CV, 2025 WL 1766125, at *4 (Tex. App.—Waco June 26, 2025, pet. denied) (mem. op.) (discussing importance of fact that communications were made directly to governmental officials about a specific governmental project); Kirby, Mathews & Walrath, PLLC v. Kuiper Law Firm, PLLC, No. 06-21-00040-CV, 2021 WL 4268291, at *4–7 (Tex. App.—Texarkana Sept. 21, 2021, no pet.) (mem. op.) (allegation of unethical conduct levied against attorney was not made in connection with matter of public concern when it was made privately and was not the subject of an ethics complaint, investigation, or lawsuit by aggrieved client).

Finally, the prior relationship between the parties and fact that Cantu disguised his identity and engaged in derogatory name-calling lend support to the conclusion that his communications were not made in connection with a matter of public concern but instead arose out of a personal dispute. See Helling v. Kerr, No. 08-24-00357-CV, 2025 WL 3713957, at *1, *4 (Tex. App.—El Paso Dec. 22, 2025, no pet.) (mem. op.) (social media post referring to realtor as a “whore” was not about a matter of public concern); Hayman, 693 S.W.3d at 451–52 (although subjects of race, national origin, and religion are “no doubt” of general interest to public, employer's racially discriminatory statements about a single employee and his religion, made to a limited audience, were not about matters of public concern because they were “not likely to impact a larger part of the community or have broader relevance to a public audience”); Sasano v. Niemela-Waller, No. 02-20-00378-CV, 2021 WL 3679242, at *3–4 (Tex. App.—Fort Worth Aug. 19, 2021, no pet.) (mem. op.) (defendant's anonymous and fake online reviews of healthcare provider were not made in connection with matter of public concern because she was “airing her personal dispute with [plaintiff] under the pretext of a patient review”); see also Snyder, 562 U.S. at 455, 131 S.Ct. 1207 (considering whether defendant's “speech on public matters was ․ contrived to insulate speech on a private matter from liability,” including whether there was a “pre-existing relationship or conflict between [the parties] that might suggest [the defendant's] speech on public matters was intended to mask an attack on [the plaintiff] over a private matter”).

In sum, Cantu has not demonstrated that his communications were made in connection with a matter of public concern under the TCPA. If anything, the pleadings and evidence thus far militate against such a finding.

III. Conclusion

Cantu's sole issue is overruled. The trial court's order denying the TCPA motion to dismiss is affirmed.

FOOTNOTES

1.   A letter attached as evidence to another motion in the record indicates that “Monica” is Cantu's “other sister.”

2.   The Halls objected to this affidavit and moved for sanctions, pointing to evidence that their mother had dementia. The trial court denied the motion for sanctions.

3.   See Connick v. Myers, 461 U.S. 138, 143 n.5, 146, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983) (applying same inquiry to issue of public employees' First Amendment rights; noting overlap with common law tort of invasion of privacy).

4.   See Snyder v. Phelps, 562 U.S. 443, 451–53, 131 S.Ct. 1207, 179 L.Ed.2d 172 (2011) (constitutional limitation on recovery for intentional infliction of emotional distress); Brady v. Klentzman, 515 S.W.3d 878, 883–84 (Tex. 2017) (constitutional limitation on recovery for defamation).

5.   Accord KRJJ Enters. v. Willis, No. 01-23-00198-CV, 2023 WL 8630985, at *3 (Tex. App.—Houston [1st Dist.] Dec. 14, 2023, no pet.) (mem. op.); Sasano v. Niemela-Waller, No. 02-20-00378-CV, 2021 WL 3679242, at *3 (Tex. App.—Fort Worth Aug. 19, 2021, no pet.) (mem. op.); O'Rourke v. Warren, 673 S.W.3d 671, 681 (Tex. App.—Austin 2023, pet. denied); Kirby, Mathews & Walrath, PLLC v. Kuiper Law Firm, PLLC, No. 06-21-00040-CV, 2021 WL 4268291, at *4–5 & n.6 (Tex. App.—Texarkana Sept. 21, 2021, no pet.) (mem. op.).

6.   See Brady, 515 S.W.3d at 884 (“Public matters include, among other things, ‘commission of crime, prosecutions resulting from it, and judicial proceedings arising from the prosecutions.’ ” (quoting Cox, 420 U.S. at 492, 95 S.Ct. 1029)).

Ken Wise, Justice