OPINION

Opinion by Justice MOSELEY.

Warren Whisenhunt sued Matthew Lippincott and Creg Parks for defamation, tortious interference with existing business relationships, tortious interference with prospective business relationships, and civil conspiracy. Lippincott and Parks sought dismissal of these claims pursuant to the recently-enacted Texas Citizens Participation Act (TCPA), also known as the Anti-SLAPP1 statute, which is contained in Chapter 27 of the Texas Civil Practice and Remedies Code. The TCPA is designed to prevent plaintiffs from bringing frivolous lawsuits based on an exercise of free speech. It provides for a pre-discovery dismissal mechanism that requires a plaintiff to make a prima facie case on each claim by "clear and specific evidence" to avoid dismissal of the suit and the imposition of attorney's fees and sanctions. Applying the TCPA, the trial court dismissed all of Whisenhunt's claims, except for his claim for defamation; in addition, attorney's fees were awarded to Lippincott and Parks. Because we conclude that the TCPA did not apply to Whisenhunt's suit (this being an issue dispositive of the points of error raised by both parties), we reverse the trial court's judgment and remand the case to the trial court for further proceedings.

I. Facts Giving Rise to a Private Dispute

Whisenhunt is a Certified Registered Nurse Anesthetist who is a member and Vice President of SafeNET Anesthesia Services, P.L.L.C. ("SafeNET"). SafeNET became "an independent contractor and exclusive provider of anesthesiology services for a company called First Surgery Suites, LLC (`FSS')." Whisenhunt is also a partner in FSS and owns approximately five percent of that company.

In May 2010, Lippincott was hired as an administrator for FSS and immediately suggested that his wife, who was an anesthesiologist, should work at FSS despite the exclusive contract with SafeNET which remained effective for a set term. FSS hired Parks and his company, Alliance Managed Healthcare, L.L.C. ("AMH"), in January 2011 to administer the business of FSS. Parks worked under Lippincott's direction, and "the two began jointly managing the daily operations and administration of FSS."

Whisenhunt's petition alleged that Lippincott was an employee or partner of AMH and that "[s]hortly after Parks' assumption of the position, both Defendants proposed replacing SafeNET with another anesthesiology provider at FSS," which Whisenhunt characterized as "an anticipated breach of the companies' exclusive anesthesia services contract." In May 2011, Parks and Lippincott allegedly contacted third parties and interviewed alternative providers of anesthesia services, "pressuring Whisenhunt to alter the exclusivity provisions of the contract with FSS." The petition claimed that Parks told members of FSS and three other parties that Whisenhunt had been responsible for the loss of surgical patients at FSS.

Parks was terminated by FSS March 28, 2012, as a result of the FSS partners' decision that he, according to Whisenhunt's petition, had "grossly mismanaged collections as well as other acts of incompetence." Whisenhunt's petition claimed that Parks and Lippincott continued publishing disparaging comments about Whisenhunt to others interested in conducting business with him even after Parks' termination, including charges that Whisenhunt had sexually harassed the facility's nurses, had engaged in fraudulent behavior, was unavailable for surgeries, and was incompetent as an anesthetist. Attached to Whisenhunt's petition were internal emails Lippincott had sent in May 2012 that contained the following language:

Whisenhunt filed suit November 16, 2012, against Lippincott and Parks for defamation, tortious interference with existing and prospective business relationships, and conspiracy to interfere in business relationships.4 Whisenhunt complained that the various unsavory statements about him were untrue. To partially show the untruthfulness of the statements, Whisenhunt produced an affidavit from Gary Boyd, a physician and the Medical Director of FSS, stating that FSS received no formal or informal complaints against Whisenhunt until after Parks was fired and that FSS had terminated its contractual relationships with AMH. Boyd stated that CSS was "very happy with the quality of the nurse anesthesia services that have been provided by [SafeNet] [and] Whisenhunt" and described Whisenhunt as "very professional."

Lippincott and Parks moved to dismiss the suit January 13, 2013, interposing the TCPA as a bar to Whisenhunt's claims. The filing of such a claim abates any discovery until the issue of its applicability is resolved.

Whisenhunt responded to the motion to dismiss by arguing the inapplicability5 of the TCPA and claiming, alternatively, that even if the chapter applied to the suit he had brought, the court could not dismiss the action because he could establish "by clear and specific evidence a prima facie case for each essential element of the claim in question." TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(c) (West Supp.2012).

The trial court entered its ruling on this controversy by order entered March 4, 2013, wherein it found that Whisenhunt "met the minimum threshold to proceed with the defamation cause of action" but did not "provide clear and specific evidence to proceed with the tortious interference claims and the claim of conspiracy." On March 15, 2013, the trial court denied the motion to dismiss "with regard to Plaintiff's claim for Defamation" but granted the motion to dismiss "with regard to Plaintiff's claims for Tortious Interference with Existing Business Relationships, Tortious Interference with Prospective Business Relationships and Conspiracy to Interfere with Business Relations." The trial court also awarded court costs and $2,887.50 in attorney's fees6 to Lippincott and Parks based on their written claim for fees and their attorney's affidavit.

II. The TCPA Does Not Apply

Lippincott and Parks bore the initial burden of demonstrating the TCPA's applicability. Wholesale TV & Radio Adver., LLC v. Better Bus. Bureau of Metro. Dallas, Inc., No. 05-11-01337-CV, 2013 WL 3024692, at *2 (Tex.App.-Dallas Jun. 14, 2013, no pet.) (mem. op.); Better Bus. Bureau of Metro. Dallas, Inc. v. BH DFW, Inc., 402 S.W.3d 299, 307 (Tex.App.-Dallas 2013, pet. filed).

The trial court's initial determination that Lippincott and Parks showed by a preponderance of the evidence that the legal action was based on their exercise of free speech is subject to de novo review. KTRK Television, Inc. v. Robinson, 409 S.W.3d 682, 688-89 (Tex.App.-Houston [1st Dist.] 2013, no pet. h.) (citing Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd., No. 01-12-00581-CV, 416 S.W.3d 71, 80-81, 2013 WL 5761051, at *6 (Tex.App.-Houston [1st Dist.] May 2, 2013, no pet. h.)).

Both parties believe the rules of statutory construction support their respective positions. Since the issue of statutory construction is a question of law, we review it de novo. Molinet v. Kimbrell, 356 S.W.3d 407, 411 (Tex.2011); R.R. Comm'n of Tex. v. Tex. Citizens for a Safe Future & Clean Water, 336 S.W.3d 619, 624 (Tex.2011). When construing a statute, our primary objective is to ascertain and give effect to the Legislature's intent. TEX. GOV'T CODE ANN. § 312.005 (West 2013); Molinet, 356 S.W.3d at 411. "We look first to the statute's language to determine that intent, as we consider it `a fair assumption that the Legislature tries to say what it means, and therefore the words it chooses should be the surest guide to legislative intent.'" Leland v. Brandal, 257 S.W.3d 204, 206 (Tex.2008) (quoting Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 866 (Tex.1999)); see Molinet, 356 S.W.3d at 411. We consider the statute as a whole rather than focusing upon individual provisions. TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex.2011). If a statute is unambiguous, we adopt the interpretation supported by its plain language unless such an interpretation would lead to absurd results. Id. (citing Tex. Dep't of Protective & Regulatory Servs. v. Mega Child Care, 145 S.W.3d 170, 177 (Tex.2004)).

The right of free speech is guaranteed under both the United States7 and Texas8 Constitutions. The tort of defamation creates an exception to these broad guarantees. Gertz v. Robert Welch, Inc., 418 U.S. 323, 341, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974); see also Cain v. Hearst Corp., 878 S.W.2d 577, 582 (Tex. 1994) (noting "[e]very defamation action that the law permits necessarily inhibits free speech"). The TCPA recognizes the need to protect those filing meritorious defamation claims but seeks to punish or deter, through the assessment of attorney's fees and sanctions, those who abuse this tort action to silence others who otherwise have a constitutional right to speak freely.

The stated purpose of the TCPA is "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 (West Supp.2012).9 The "[e]xercise of the right to free speech" is defined as "a communication[10] made in connection with a matter of public concern." TEX. CIV. PRAC. & REM.CODE ANN. § 27.001(3) (West Supp. 2012). The phrase "[m]atter of public concern" is defined by the statute as "an issue related to: health or safety; environmental, economic, or community well-being; a public official or public figure; or a good, product, or service in the marketplace." TEX. CIV. PRAC. & REM.CODE ANN. § 27.001(7) (West Supp.2012).

Lippincott and Parks argued that the "email string presented by Whisenhunt" and authored by Lippincott "[is] related to matters of public concern in the areas of health and safety, community well-being and a service in the marketplace." Whisenhunt responds by arguing that interpretation of the statute in that manner conflicts with the statute's also-stated purpose of protecting "the rights of a person to file meritorious lawsuits for demonstrable injury." TEX. CIV. PRAC. & REM.CODE ANN. § 27.002.11

"[N]ot all speech is of equal First Amendment importance. It is speech on `matters of public concern' that is `at the heart of the First Amendment's protection.'" Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 758-59, 105 S.Ct. 2939, 86 L.Ed.2d 593 (1985) (footnote omitted) (quoting First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 776, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978)). The purpose of the statute is to "petition, speak freely, associate freely, and otherwise participate in government." TEX. CIV. PRAC. & REM.CODE ANN. § 27.002 (emphasis added). As stated in Dun & Bradstreet, "[t]he First Amendment `was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.'" Dun & Bradstreet, 472 U.S. at 759, 105 S.Ct. 2939 (quoting Roth v. United States, 354 U.S. 476, 484, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957)); New York Times Co. v. Sullivan, 376 U.S. 254, 269, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). "`[S]peech concerning public affairs is more than self-expression; it is the essence of self-government.'" Dun & Bradstreet, 472 U.S. at 759, 105 S.Ct. 2939 (quoting Garrison v. Louisiana, 379 U.S. 64, 74-75, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964)).

There is a distinction between the protections afforded to private speech versus public speech. Hancock v. Variyam, 400 S.W.3d 59, 65 (Tex.2013) (citing Dun & Bradstreet, 472 U.S. at 760, 105 S.Ct. 2939) (speech solely in individual interest of speaker and his specific business audience warrants no special protection when wholly false and clearly damaging to victim's business reputation). The phrase "matter of public concern" is not new to our jurisprudence. When a defamatory statement involves a matter of public concern, private individuals suing for defamation have long been required to prove actual malice, but even so, this assumes that the matter was publicly communicated, usually through a media defendant. See Bentley v. Bunton, 94 S.W.3d 561, 580 (Tex.2002); Klentzman v. Brady, 312 S.W.3d 886, 898 (Tex.App.-Houston [1st Dist.] 2009, no pet.). By including the phrase "otherwise participate in government," it appears the Legislature intended to protect free speech that rises to such a level that it can be considered participation in government. In other words, the speech must be exercised in the form of public communication.

"Under the Code Construction Act, we may look to the statute's legislative history in gleaning the Legislature's intent." Phillips v. Beaber, 995 S.W.2d 655, 658 (Tex.1999) (citing TEX. GOV'T CODE ANN. § 311.023(3) (West 2005)). Our reading of the TCPA is bolstered by the sponsor's May 14, 2011, statement of intent, which contains the following reasoning for enacting the statute:

Senate Comm. on State Affairs, Bill Analysis, Tex. H.B. 2973, 82nd Leg., RS (2011). The statement of intent confirms the concept gathered from reading the statute as a whole that the Legislature was attempting by this law to protect a citizen's public participation.12 Otherwise, pre-discovery dismissals, attorney's fees, and sanctions would loom over any plaintiff filing an action for private defamatory speech, which would have the effect of chilling meritorious private defamation suits, a result neither intended nor required under the TCPA.

Lippincott and Parks argue that to the extent the emails refer to Whisenhunt, "they relate to his conduct as a nurse and whether that conduct should be reported to the Texas Board of Nursing."13 They cite to a recent case where the Houston First District Court found that "[t]he business of operating an assisted living facility is a highly regulated one," and held that a newspaper which published allegedly defamatory statements was protected by the TCPA because it was communicating a matter of public concern and was, thus, exercising its right of free speech. Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd., No. 01-12-00581-CV, 416 S.W.3d 71, 81, 2013 WL 5761051, at *7 (Tex.App.-Houston [1st Dist.] Oct. 24, 2013, no pet. h.). The court also noted that the newspaper's statements were a matter of public concern because residents of an assisted living facility retain the right to choose their own health care professionals. Id. However, Crazy Hotel differs from the case here because it involved a case where information was published to the public in a newspaper, whereas the allegations in this case were not.

We also bear in mind the circumstances under which the statute was enacted and the consequences of any particular construction. Phillips, 995 S.W.2d at 658 (citing TEX. GOV'T CODE ANN. § 311.023(2), (5)). Further, we presume that the Legislature acted with knowledge of the common law and court decisions. Id. Our review of TCPA caselaw reveals dismissals involving articles published to the public, business ratings available to the public, and statements made on websites about public figures, goods, products, or services. In all of these free speech cases, the allegedly actionable statements not only involved matters of public concern, they were also readily available to the public. See generally Robinson, 409 S.W.3d 682 (involving suit brought against television broadcaster for defamation following news story on financial mismanagement at local school); Crazy Hotel Assisted Living, Ltd., 416 S.W.3d 71, 2013 WL 5761051 (involving articles published in newspaper relating to problems at assisted living center); Rehak Creative Servs., Inc. v. Witt, 404 S.W.3d 716 (Tex.App.-Houston [14th Dist.] 2013, pet. denied) (involving suit by company against candidate running for office who posted on website that company contributed money to opponent's campaign to get government contracts); Wholesale TV & Radio Advertising, LLC, 2013 WL 3024692 (involving BBB's F rating of business); BH DFW, Inc., 402 S.W.3d 299 (same); Better Bus. Bureau of Metro. Dallas, Inc. v. Ward, 401 S.W.3d 440 (Tex. App.-Dallas 2013, pet. filed) (same); Avila v. Larrea, 394 S.W.3d 646 (Tex.App.-Dallas 2012, pet. denied) (suit brought by lawyer against Spanish television station for broadcasting allegedly defamatory statements and posting them on internet suggesting lawyer was defrauding undocumented immigrants).14 Based on this case study, we believe that if a person is not exercising his right to speak freely in public, the TCPA will not apply to suits filed against him.

A review of the anti-SLAPP legislation in other states, which was referenced in the sponsor's statement of intent, also supports the conclusion reached here. The anti-SLAPP statutes in California, the District of Columbia, Louisiana, Maryland, Nevada, Vermont, and Washington specifically protect only those statements made to the public or in a public forum.15 Because anti-SLAPP statutes in the following jurisdictions only protect either the right to petition or speech made before a governmental body, there is no dismissal mechanism for communications made about matters of public concern that are not made in a public forum: Arizona, Arkansas, Delaware, Florida, Georgia, Guam, Hawaii, Illinois, Maine, Massachusetts, Minnesota, Nebraska, New Mexico, New York, Oklahoma, Pennsylvania, Rhode Island, Tennessee, and Utah.16 The Anti-SLAPP legislation adopted by Indiana17 and Oregon,18 respectively, contains language similar to the TCPA, but no cases in those jurisdictions have applied the anti-SLAPP law to private speech.

Considering the language of the statute as a whole, the Legislature's statement of intent, and existing law, which was referenced by the Legislature, we conclude that the TCPA does not apply to speech that is only privately communicated. Only under such an interpretation can both purposes of the TCPA be served. Thus, the TCPA did not apply to the claims raised against Lippincott and Parks.

III. CONCLUSION

We reverse the trial court judgment applying the TCPA and remand this case to the trial court for further proceedings consistent with this opinion.