A25-1002 A25-1008

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A25-0930
A25-1002
A25-1008

N A BROTHERS LLC, d/b/a Goddard School of Albertville,
Respondent,

vs.

Heather Werts, et al.,
Appellants (A25-0930),
Defendants (A25-1002, A25-1008),

Megan Rothstein,
Defendant,

Rachel Caballero-Morris,
Appellant (A25-1008),
Defendant (A25-0930, A25-1002),

Juliana Marie Biederman,
Defendant,

Samantha Martinez,
Appellant (A25-1002),
Defendant (A25-0930, A25-1008).

Filed March 9, 2026
Reversed and remanded
Reyes, Judge
Dissenting in part, concurring in part, Wheelock, Judge

Wright County District Court
File No. 86-CV-24-5712

Brian N. Niemczyk, Nicklaus A. Johnson, Hellmuth & Johnson, PLLC, Edina, Minnesota
(for respondent)

Samuel A. Savage, Savage Westrick, PLLP, Bloomington, Minnesota (for appellants
Heather Werts, et al.)
2

William L. Davidson, Brian A. Wood, Matthew D. Sloneker, Lind, Jensen, Sullivan &
Peterson, PA, Minneapolis, Minnesota (for appellant Rachel Caballero-Morris)

Chad A. Snyder, Michael H. Frasier, Rubric Legal, LLC, Minneapolis, Minnesota (for
appellant Samantha Martinez)

Considered and decided by Wheelock , Presiding Judge; Reyes, Judge; and Kirk ,
Judge.
NONPRECEDENTIAL OPINION
REYES, Judge
Appellants challenge the district court’s denial of their special motions for expedited
relief seeking dismissal of respondent’s claims under the Uniform Public Expression
Protection Act (UPEPA ), Minn. Stat. §§ 554.07-.20 (2024), and we consolidated their
interlocutory appeals. Appellants argue that the district court erred by (1) determining that
UPEPA does not apply and (2) denying their motions for expedited relief. We reverse and
remand.
FACTS
Consistent with applicable law, the following factual summary is based on the
record before the district court on the special motion for expedited relief and is presented
in the light most favorable to respondent as the nonmoving party. See J&D Dental v. Hou,
26 N.W.3d 491, 494 n.1 (Minn. App. 2025).
Appellants Samantha Martinez, Heather Werts, Jazmyne Theis, and Rachel
Caballero-Morris participated in online discussions about childcare providers in the St.

 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
3
Michael-Albertville area. These discussions took place in two Facebook groups , named
“St. Michael Albertville Bulletin Board” and “STMA Moms.” All appellants made
comments about respondent N A Brothers, LLC, d oing business as The Goddard School
of Albertville (“Goddard”), its owner, or its staff . The comments reflected appellants’
experiences with Goddard, either as former employees or as parents whose children
attended the school. Appellants also discussed investigations by the Minnesota
Department of Human Services (DHS) into Goddard, including publicly available reports
of substantiated allegations of child abuse occurring at Goddard. In addition to appellants,
the online discussions included multiple participants who commented both positively and
negatively about local childcare providers, including Goddard. Goddard sued appellants
and two nonappealing co-defendants, claiming that they defamed Goddard and conspired
with each other to do so. Appellants’ statements appear below:
4
A. Statements by Appellant Caballero-Morris

5

6

7
B. Statements by Appellants Caballero-Morris and Martinez

8

Continued c

C. Statements by Appellant Werts

11

12

D. Statements by Appellant Theis

13

14

15

Appellants filed special motions for expedited relief, requesting that the district
court dismiss Goddard’s complaint with prejudice under UPEPA and Minnesota Rule of
Civil Procedure 12.02(e). The district court denied the motions, determining that UPEPA
did not apply and appellants’ statements were capable of being defamatory. The district
court further determined that Goddard had stated a claim for civil conspiracy for which
relief may be granted.
This appeal follows.
DECISION
At issue on appeal is the scope of UPEPA, Minnesota’s anti -SLAPP (strategic
lawsuit against public participation) statute. Minn. Stat. §§ 554.07-.20; J&D Dental, 26
N.W.3d at 496. Anti-SLAPP statutes are “designed to present substantive consequences”
of SLAPP actions, such as “the impairment of First Amendment rights and the time and
expense of defending against litigation that has no demonstrable merit.” Id. at 496 n.2.
UPEPA applies to several types of civil actions, including causes of action brought “against
a person based on the person’s . . . exercise of the right of freedom of speech or of the press,
. . . guaranteed by the United States Constitution or the Minnesota Constitution on a matter

16
of public concern.” Minn. Stat. § 554.08(b)(3). Under UPEPA, a party may file a special
motion for expedited relief seeking dismissal of the cause of action within 60 days after
being served with the complaint. See Minn. Stat. § 554.09.
“UPEPA directs courts assessing special motions for expedited relief to engage in a
three-part analysis .” J&D Dental , 26 N.W.3d at 496. A district court must determine
whether (1) “UPEPA applies to the action at issue,” (2 ) “the nonmoving party has
established a prima facie case for each essential element of the challenged causes of
action,” and (3) “the moving party has demonstrated a basis for dismissal either for failure
to state a claim or because there are no genuine issues of material fact and judgment is
appropriate as a matter of law.” Id. (citing Minn. Stat. § 554.13(a)(1)-(3)). “We review a
district court’s decision on a special motion for expedited relief under UPEPA de novo ,”
independently examining the record. Id. at 496, 499 ; Cook v. Trimble , 22 N.W.3d 196 ,
204 (Minn. App. 2025), rev. granted on other grounds (Minn. Aug. 12, 2025). Following
J&D Dental, we begin our analysis by first examining whether UPEPA applies. Because
the second element is not disputed, we next proceed to analyze whether appellants have
shown that they are entitled to judgment as a matter of law.
I. The district court erred by determining that the speech at issue was not on a
matter of public concern1 and that UPEPA does not apply.
Appellants argue that the district court erred by determining that UPEPA did not
apply to their online statements because the quality of childcare and child maltreatment at
childcare centers are matters of public concern to the community. We agree.

1 The phrase “on a matter of public concern” is a term of art used in UPEPA and First -
Amendment caselaw. See, e.g., Snyder v. Phelps, 562 U.S. 443, 45 1-58 (2011); Johnson
v. Freborg, 995 N.W.2d 374, 387-89 (Minn. 2023).
17
UPEPA “must be broadly construed and applied to protect the exercise of the right
of freedom of speech and of the press.” Minn. Stat. § 554.17 (emphasis added). Speech
regards a “matter[] 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
general interest and of value and concern to the public.” Snyder, 562 U.S. at 453 (emphasis
added) (quotations and citation omitted).2
Here, the district court determined that, even looking at the statements “within the
context of the entire online discussion, the dialogue does not implicate an intention to
influence public discourse about desired political or social change.” But that is not the
correct standard. The proper standard asks whether the speech “relat[es] to any matter of
political, social, or other concern to the community .” Id. (emphasis added) (quotation
omitted).
Moreover, appellants provide several reasons why their statements related to a
matter of concern to the community, including : (1) the many news reports that appear
locally, nationally, and internationally when child abuse is reported at childcare centers;
(2) the state’s regulation of childcare facilities and public posting of maltreatment reports;
(3) legal authority declaring “that the public policy of [Minnesota] is to protect children
whose health or welfare may be jeopardized through maltreatment,” Minn. Stat. § 260E.01
(2024); and (4 ) the high frequency of discussions in vari ous Facebook groups in the St.
Michael-Albertville area about abuse and maltreatment at childcare centers.

2 Minnesota courts “rely[] on Synder to guide the public -concern determination in tort
actions generally.” Freborg, 995 N.W.2d at 388 n.4.
18
As a general matter, child abuse and “legal recourse available to [an] abused child”
are matters that “are certainly of public concern.” Richie v. Paramount Pictures Corp. ,
544 N.W.2d 21, 26 (Minn. 1996). “There is a strong public interest in reporting child abuse
and protecting children from further abuse.” Bol v. Cole , 561 N.W.2d 143, 150 (Minn.
1997). We conclude that the district court erred as a matter of law by construing speech
on matters of public concern to include only speech intending to infl uence political or
social change.
However, our analysis does not end there because there is no per se rule that
statements about child maltreatment and its occurrence at childcare centers “ are always
[speech on] matters of public concern.” Freborg, 995 N.W.2d at 385 (emphasis omitted).
Instead, we evaluate the speech “on a case -by-case basis, apply the totality of the
circumstances test and balance the content, form, and context of the speech, as well as any
other pertinent factors, to determine whether [the] speech involves a purely private matter
or is a statement about a matter of public concern.” Id. We assess “what was said, where
it was said, and how it was said.” J&D Dental, 26 N.W.3d at 498 (quotation omitted). We
begin by considering the form of appellants’ speech (where the speech was said) , then its
content (what was said), and finally its context (how it was said).
E. With the exception of a one-on-one conversation, t he form of appellants’
speech weighs strongly in favor of concluding that appellants’ speech was
on a matter of public concern.
We first consider the for m, or “where” appellants spoke. “[S]ocial media acts as
the ‘modern public square’ and . . . sites like Facebook ‘allow a person with an Internet
connection to become a town crier with a voice that resonates farther than it could from
any soapbox.’” Freborg, 995 N.W.2d at 389 (quoting Packingham v. North Carolina, 582
19
U.S. 98, 107 (1997)). In Freborg, the supreme court considered a Facebook post in which
a dancer accused three of her former dance instructors of sexual assault. Id. at 380-92.
When considering the form of her speech, the supreme court noted that the dancer
disseminated her speech through a public posting on Facebook, increased its reach through
use of specific hashtags, and concluded that the dominant theme of her post spoke to the
broader issue of sexual abuse, a matter of public concern. See id. at 389-90. Similarly, in
J&D Dental, this court concluded that posting a series of Google reviews online weighed
in favor of the conclusion that the speech was on a matter of public concern. 26 N.W.3d
at 501-02.
Here, the record shows that appellants’ speech was “posted on private Facebook
groups, on [Werts’s] personal Facebook profile accessible only to ‘friends,’ and through
private messaging.” Goddard cites no cases to support its contention that posting to
Facebook groups does not weigh in favor of concluding that the speech was on a matter of
public concern as it did in Freborg and J&D Dental . The Facebook groups in which
appellants posted had anywhere from 2,500 to 26,000 members each and the record
indicates that they were accessible to each and every member of the group in which they
were posted . Moreover, the record shows that at least one of the Facebook groups is
categorized on the site as a “public group.” The comparison of social media websites to a
modern public square is apt and instructive. Social media sites “for many are the principal
sources for . . . speaking and listening in the modern public square . . . .” Packingham v.
North Carolina, 582 U.S. at 107. Here, members of the St. Michael-Albertville community
could, and did, go online to discuss issues of public concern. Even Goddard’s executive
20
director joined the conversation in which the statements at issue were made as a community
member.
Regarding the comment on Werts’s personal Facebook page, Goddard
acknowledges that its audience could reach up to 5,000 Facebook users, which Goddard
admits is “a fairly large audience.” Because Werts’s speech on her personal Facebook page
was available to community members and she linked the post back to the larger childcare
and abuse discussion in the STMA Moms Facebook group, its form weighs strongly in
favor of a determination that the speech was on a matter of public concern.
Werts also engaged in a Facebook Messenger conversation involving only one other
person, K.G., a local community member. This conversation was different from an online
posting with which third parties could access and engage. B ecause it involved only the
speaker and one other person, the form weighs against concluding that the speech was on
a matter of public concern. However, we must still consider the totality of the
circumstances of the speech, including the content and context of the speech, which we do
in the next two sections. See J&D Dental, 26 N.W.3d at 498.
The form of appellants’ remaining speech, all of which was available to thousands
of local community members on a public social-media site, weighs strongly in favor of the
conclusion that the speech was on a matter of public concern.
F. The content of the speech weighs in favor of concluding that appellants’
speech was on a matter of public concern.
Next, we consider whether the content , or the “what,” of the challenged speech
weighs in favor of concluding that the speech was on a matter of public concern. Goddard’s
complaint cited specific statements within appellants’ social -media posts , alleging that
21
these statements were defamatory. When “ the component parts of a single speech are
inextricably intertwined, we cannot parcel out the speech, applying one test to one phrase
and another test to another phrase. Such an endeavor would be both artificial and
impractical.” Riley v. Nat’l Fed’n of the Blind of N. C., Inc., 487 U.S. 781, 796 (1988).
Instead, when evaluating the content of speech, we consider all comments made by the
speaker within the conversation to determine the dominant theme of the speech. Id. at 796;
see also J&D Dental , 26 N.W.3d at 499 -500 (explaining that “we do not examine these
statements in isolation,” but instead “consider the entirety of [the speech] to determine
whether the speech is on a matter of public concern”). We also review the immediate
conversation within which the speech is situated to the extent that it helps us evaluate the
content of the speech.3 See Freborg, 995 N.W.2d at 386 (looking to the “broader context
and response posts” within the thread to evaluate content).
In Freborg, the dancer’s post referenced “all these women dancers coming out” and
used #MeToo and #DancePredators hashtags. Id. at 380. The supreme court concluded
that, even though the dancer “named, tagged, and admonished three specific instructors in
her post, these personal messages [did] not outweigh the dominant theme of her speech —
to discuss sexual assault in the dance community, a matter of public import.” Id. at 387.
In a contrasting case, this court considered whether the content of a dental patient’s
negative online review about care she received from a dental provider favored a

3 In the third prong of the totality -of-the-circumstances test, we evaluate context to
determine whether the speech is connected to a broader conversation taking place within
the community or society at large. Freborg, 995 N.W.2d at 390-91. This is a wider view
than the immediate conversation we consider when evaluating content in the second prong.
Id.
22
determination that the speech was on a matter of public concern under UPEPA . J&D
Dental, 26 N.W.3d at 4 95-96, 501 -02. The patient’s review included a comment that
“[a]nyone who cares about their dental health should avoid this [provider]!” Id. at 500.
We examined the patient’s statements as a whole, noting that “[t]he majority of [her]
speech recounts an individual grievance about her personal experience ” with that dental
provider. Id. We concluded that the “overall thrust and dominant theme of [the] speech
was to discuss [a] personal grievance with [the provider] and not to speak to broader public
issues or discuss a matter of public import.” Id. at 501 (quotation omitted). With these
principles in mind, we separately evaluate the content of each appellants ’ alleged
defamatory statements
1. Statements by Appellant Caballero-Morris
Goddard contends that Caballero -Morris made three defamatory statements in two
Facebook conversations. The statements are provided in italics below, alongside the
conversation in which they were made.
J.B. initiated and posted t he following conversation on which Caballero -Morris
commented:
J.B.: You may have seen Goddard Albertville marketing their
new Parent Aware rating to draw people in. If you’re
considering attending, you should know about the
teachers they hire first. DHS just published this report
a few weeks ago about a teacher at Goddard Albertville,
and my son is one of the students mentioned. Please, I
urge you to be careful if you’re conside ring them for
childcare. [attached link to webpage on
dhs.state.mn.us]

Caballero-Morris: Absolutely disgusting!

23
E.S.: Thank you for sharing. In a world where places can pay
Google to remove honest negative reviews, it is good
when people speak out to spread awareness when it
impacts the innocent children of the world.

H.K.: Is DHS convicting this animal? Or is it just a slap on
the wrist, per usual? This is disgusting.

Caballero-Morris: [H.K.]4 animals! There is multiple guilty of this
there.

H.K.: [Caballero-Morris] disgusting.

Caballero-Morris: [H.K.] agreed! [S.P.] and I advocate for this to
be a safe space to share this info because of the length
people go to cover it up.

H.K.: So, any repercussions or justice for these children? Just
wondering… since this “system” has done NOTHING
to protect my children in the past. You should get in
touch with KARE 11.

S.P.: [Caballero-Morris] I absolutely feel we need full
transparency on this topic because we are all moms!
This is very disturbing.

J.B.: [H.K.] it appears like the teacher will not be able to
work with children again, but no punishment for the
school at which things like this have happened several
times now. I have submitted the report, along with a
similar report that came out from a sch ool in Eden
Prairie in January, but not sure if anyone will pick the
story up.

H.K.: [J.B.] well, good for you!! I hope that one of these days
this system gets exposed for not holding those that hurt
our children responsible. But, it’s a hope that I don’t
hold onto too tightly. It’s infuriating.

Caballero-Morris: [J.B.] and just so we are all clear here, they all
did their part in covering this up. The teachers all the
way up to the owner!

4 We place names in brackets to indicate when individuals tagged another Facebook user
in their comment.
24

. . . .

J.S.: I urge everyone when looking into any type of daycare
facility to check out their license information on
https://licensinglookup.dhs.state.mn.us. You can find
any corrective actions taken along with if they have any
maltreatment findings.

Here, J.B. began the conversation by referring to a DHS report to warn others about
the risks she believed were present at Goddard. J.B. also included a link to the DHS website
regarding the investigation involving Goddard. 5 The conversation subsequently involved
child abuse at childcare centers generally and the need to have open conversations to
protect children. Caballero-Morris responded by sharing that multiple people were guilty
of harming children at Goddard and that she believed Goddard’s staff covered up the abuse.
Caballero-Morris specifically stated that she advocates for the Facebook group to be a safe
space to share information. Several other participants also emphasized the importance of
speaking out on matters impacting children’s welfare.
While Caballero-Morris expressed her belief that teachers and the owner were
covering up the abuse, we conclude that the majority of Caballero -Morris’s speech and,
therefore, its dominant theme, was to discuss child maltreatment in local childcare centers,
a matter of public concern.
Caballero-Morris participated in a second conversation that another member of the
Facebook group, K.G., initiated:

5 To the extent that Werts or other appellants reference child-abuse allegations investigated
by DHS, UPEPA applies . See Minn. Stat. § 554.08(b)(2) (UPEPA applies to
“communication on an issue under consideration or review in a legislative, executive,
judicial, administrative, or other governmental proceeding”).
25
K.G.: Hello! Thanks for accepting me into the group, my
name is [K.G.] and I’m a single mother, we will be
moving to the area shortly and looking for a preschool
center for my daughter. I toured a couple of places and
looking for any input/advice you might have. Lo oking
forward to this next chapter and meeting new people!

Caballero-Morris: Definitely stay away from the Goddard school
and Little Miracles. Active cases of child abuse .
Welcome to the area! [S.P.] and I are glad you are here!

Martinez: [Caballero-Morris] little miracles is for sale and closed
currently.

L. G.-E.: [Caballero-Morris] really? Oh my God!

. . . .

J.S.: We switched from Goddard to Lil Explorers and LOVE
it.

J.B.: We also switched from Goddard to Lil Explorers
Childcare, Ostego and we love it!!!

N.H.: Welcome, [K.G.]! We take our three -year-old to
Primrose School of Rogers and they are great!

Here, Caballero-Morris made her statement in response to a question in the group
and noted that not only Goddard but also Little Miracles were being investigated for child
abuse. Again, she participated in a broader conversation about which local childcare
centers were safe for children. The content of Caballero -Morris’s statement weighs in
favor of concluding that it was on a matter of public concern.
2. Statements by Appellant Werts
Goddard also claims that Werts made defamatory statements. We italicize the
challenged statements below. The first statement reads, “FYI to any family that has yet to
26
leave The Goddard School in Albertville. There are other incidents of Maltreatment that
DHS didn’t take serious[ly] also. I suggest you don’t walk but run.”
Werts expressed concern about incidents of child maltreatment that she believed
DHS did not take seriously. Although she identified Goddard as a childcare center at which
child maltreatment took place, her warning to parents is similar to the dancer’s warning in
Freborg about three specific individuals whom she alleged assaulted her. See 995 N.W.2d
at 380-83. The dominant theme of this post concerns child maltreatment and her perception
that DHS inadequately responded to other reported incidents of child maltreatment. This
is also similar to Freborg’s broader message about sexual assault in the dance community.
See id. at 382-83, 385-87. The content of this post therefore weighs in favor of concluding
that the speech was on a matter of public concern.
The other two statements, italicized below, were made as part of a conversation
between Werts and K.G., a member of the STMA Moms Facebook group.
K.G.: Hi [Werts]! This is K.G. from STMA moms , I am
looking into a center for my daughter and was told that
you might have some information about [Goddard]. My
ex is trying to get me to enroll her there. I have heard
some “not so great” things about them. Wondering if
you have some intel so I can inform him. Thanks.

Werts: Can I ask who asked you to message me? I am the
former director for The Goddard School. I quit last
year.

K.G.: [J.] directed me to a post you made.

. . . .

K.G.: My ex is hell bent on getting me to enroll, I don’t know
why.

27
Werts: All the good teachers that worked [there] have left and
most work at Lil Explorers in Albertville along with
about 5 plus kids from the Goddard School including
mine! The Goddard School is normally known to be the
top of the top for child care centers bu t that is far from
the case with the Albertville location. The owner tries
to cover everything up until he knows he is going to
actually get investigated. You can see previous posts
on STMA moms about all the stuff that has happened
there.

K.G.: I did read the report on Goddard the findings seemed
kinda vague, but a lot of people reached out and said
stay away.

Werts: The owner has no child care experience and comes from
an IT background and his main focus is on his 3 UPS
stores. He is never there to support the school. Yeah
there is also a maltreatment case that happened over the
Summer that was never investigated. A child was
verbally and physically abused. Withheld food and
water, child locked in a closet, etc. Owner covered all
that up.

K.G.: Ok wow. That’s crazy.

Werts: The 2nd investigation reported on the MN DHS page
with the whole documentation.

Here, Werts did not initiate the conversation. K.G. asked Werts about her
experience at Goddard because of some “not so great” things she had heard. Werts focused
on child maltreatment that she believed the owner of Goddard was “covering up.” She also
referenced p revious posts on the STMA Moms group that K.G. should consider.
Importantly, Werts referenced an investigative report publicly available on the Minnesota
DHS website. Because Werts did not initiate this communication, her participation
indicates that she was motivated to share her experience to warn the inquiring parent of a
risk of child maltreatment rather than a desire to air a personal grievance.
28
While Werts focused her answer on Goddard, naming an individual does not
automatically convert speech into a private matter. Instead, we evaluate the “dominant
theme” of Werts’s speech. We conclude that the dominant theme or focus of Werts’s
communication was to warn a parent about alleged maltreatment of children at the school,
a topic that mattered to K.G. and to many other members of the STMA Moms group. The
content of this exchange weighs in favor of the conclusion that the speech was on a matter
of public concern.
3. Statements by Appellant Martinez
Goddard also contends that statements made by Martinez were defamatory, which
appear within one conversation that occurred under K.G.’s post , referenced above 6 and
provided below.
Martinez: [Caballero-Morris] little miracles is for sale and closed
currently.

L. G.-E.: [Caballero-Morris] really? Oh my God!

Martinez: [L. G.-E.] yeah the staff walked out again and the owner
was forced to sell the business.

L. G.-E.: [Martinez] He seemed so money hungry and that was a
turn off.

Caballero-Morris: [L. G.-E.] serves him right! Protect the innocent.

Martinez: [L. G. -E.] little miracles had a female owner. The
goddard owner is currently looking to sell the business
or hire on a co -owner because he realized he was over
his head in childcare . But I doubt anyone will buy it
seeing as this isn’t the target demographic for a goddard
school.

6 We omitted this portion with an ellipsis earlier to avoid duplicating the conversation.
29
L. G.-E.: [Martinez] He was just a turn off to me… not one I
would want any business with. That’s messed up
because that’s a lot of money invested gone to waste.

Martinez: [L. G. -E.] the city and goddard warned him that it
wasn’t a good investment he didn’t listen plus he is
totally unqualified to run a childcare center . It takes
more than money to be in this business. He was just
another person that saw it as glorified babysitting, not
early childhood education. The sad part is I worked for
Goddard for almost 5 years and as a teacher this
company was the best I have seen to clients, teac hers,
and children. It’s a shame that he is tarnishing their
name cause they have incredibly high standards when it
comes to franchise owners and even have their own
“licensing” that visits just as much if not more than state
licensing to ensure their high standards. It’s a shame
that an uneducated business owner can turn a whole area
against an amazing company with bad business
practices.

Again, Martinez’s statements were made in response to K.G.’s post and are part of
a broader conversation about childcare providers in the local community of the STMA
Moms Facebook group. Martinez initially offer ed information about Little Miracles,
stating that the staff walked out, forcing the owner to close. She similarly discusse d
Goddard, offering her thoughts on why the school was struggling. She also provide d
positive comments about Goddard, emphasizing the “incredibly high standards” and
quality that typically attend Goddard’s franchisor, indicating that she was not motivated by
an opportunity to air a personal grievance . The dominant theme of Martinez’s comments
is the need for quality childcare. We conclude that the speech’s content weighs in favor of
the conclusion that the speech was on a matter of public concern.
30
4. Statements by Appellant Theis
Goddard also challenged statements made by Theis on a Facebook Group named
“St. Michael Albertville Bulletin Board”:
A.B.: Looking for reviews of the Goddard School in
Albertville? Just moved nearby. TIA!

S.S.: I have seen a lot of people express bad experiences
there, unfortunately. I do not have my own experience
to share but like the other person mentioned, asking in
the STMA moms group could be very helpful as well!
Good luck in your search!

J.W.D.: Haven’t heard anything good.

. . . .

C.P.: try Lil’ Explorers Childcare Center, Albertville!

K.H.: [C.P.] I second this.

J.B.: We pulled our children from there immediately and they
are at Lil Explorers happily now. Feel free to PM if you
have any questions!

C.W.: All daycare records are available online to review so
you can see if/when any incidences occurred.

. . . .

M.S.: We like it there! We have been there over a year. Our
kids enjoy it. We have had some awesome teachers.
There is turnover everywhere these days and daycares
are not immune to that. I feel like my kids are cared for
and safe.

D.S.: [M.S.] we love your kids so, so much!

Theis: I have worked at that daycare and do not like anything
about it. The owner doesn’t cater to needs of the staff
or famil[ies]. He does not listen to you and I have had
some pretty bad experiences with teachers being too
physically rough when “disciplining” the children or
31
yelling at them . I worked there for about 4 -5 months
and only 2 -4 teachers stayed out of about 25 . Maybe
it’s better now since I last worked there October of last
year but definitely a lot of in and out! Feel free to PM
if you have any questions about stuff that went on or the
programming.

A.B.: [Theis] sending pm.

T.Y.: [Theis] I’m sorry that was your experience. Please
don’t discourage families based on teachers who no
longer work for the school or because of your
experiences with prior leadership! We have wonderful
teachers who are passionate about the care they provide,
seeing posts like this about experiences they were not a
part of is not fair to current prospective families. Thank
you.

. . . .

T.Y.: As the Executive Director of the Goddard School and
coming from Goddard corporate. The Goddard school
of Albertville opened 3 years ago and staff turnover is
inevitable in your first 2 years of operation. The owner
is passionate about quality childcare for this community
and we have a management team and teacher staff to
support that mission. Many past posts were disgruntled
former employees and I encourage anyone looking for
childcare to come take a tour, meet our leadership team
and our teachers.

Similar to the other appellants, Theis makes her comment in response to a broader
conversation about which childcare providers were safe and, specifically, what other group
members thought about Goddard. Theis focused her comment on child maltreatment and
teacher turnover, two issues that parents had discussed as important to the wellbeing of
their children. She also provided a positive comment, expressing hope that conditions at
Goddard had improved. In addition, Goddard’s executive director engaged in the
conversation, commenting twice. The dominant theme of Theis’s comment was to discuss
32
whether a particular childcare provider was safe. Although she mentioned only one
provider, a review of the entire comment, the immediate conversation, and her willingness
to consider that Goddard may have improved leads us to conclude that the content of
Theis’s comment weighs in favor of concluding that the speech was on a matter of public
concern rather than her simply airing a personal grievance against Goddard. See J&D
Dental, 26 N.W.3d at 501.
G. The context of appellants’ speech weighs in favor of concluding that the
speech was on a matter of public concern.
Lastly, we consider whether the full context, or the “how ,” of appellants’ speech,
weighs in favor of concluding that their speech was on a matter of public concern. See
Freborg, 995 N.W.2d at 390. We consider (1 ) whether discussion was generated in
response to the online speech, (2 ) the types of conversations that ensued, and (3 ) the
importance of the movement or subject matter to broader public discourse. See id. at 390-
91. For example, the dancer’s post in Freborg generated discussion with mixed reactions
and conversations about how people should talk about the topic. Id. at 390. However, in
J&D Dental, this court concluded that the context favored a conclusion that the patient’s
speech was not on a matter of public concern because the speech did not connect the
patient’s experience to broader public issues and the record did not reflect any discourse,
conversation, or connection between the review and other reviews. See 26 N.W.3d at 502-
03.
First, even though the record consists of statements and conversations hand-picked
by Goddard, each shows a robust discussion, with many comments themselves generating
additional conversation. Almost all of the challenged statements were made in response to
33
requests for information and those statements drew many responses . In the instances in
which appellants initiated a post, the initial postings also sparked dozens of comments from
group members, indicating that appellants were participating in a broader public discourse
on a topic of interest to the community.
Second, like in Freborg, the conversations that ensued generated mixed reactions.
See 995 N.W.2d at 390. Group members, including appellants, shared positive and
negative experiences they had with Goddard and other childcare centers. For example, one
member commented, “Grateful for the teachers we trusted there who told us the truth about
these incidents so we knew to leave. So sorry your son had to go through this.” Another
member replied, “Exactly, if the teachers hadn’t come forward we would never have known
our suspicions were true!” A satisfied parent commented, “So we’ve had a great
experience personally. I have toured other centers locally too to compare, and we still like
Goddard the best.” Importantly, as discussed above, Goddard itself took part in the
conversation through its executive director, at one point admonishing Theis for her
statements and providing a counterweight to positive comments, similar to the mixed
comments generated in Freborg.
Third, the type and frequency of the discourse that occurred in the groups
demonstrates the topic’s importance to the broader public discourse. Werts’s post included
a link to a published report by DHS, clearly placing it within the context of the broader
public discourse. The members’ conversations similarly often went beyond a discussion
of Goddard or other specific schools, with comments like, “[a]ll daycare records are
available online to review so you can see if/when any incidents occurred.” Another
commenter said, “I urge everyone when looking into any type of daycare facility to check
34
out their license information on [ a state licensing website]. You can find any corrective
actions taken along with if they have any maltreatment findings.”
During the conversation with Caballero-Morris, a member explicitly connected the
conversation directly to the broader public discourse, stating, “Thank you for sharing. In
a world where places can pay Google to remove honest negative reviews, it is good w hen
people speak out to spread awareness when it impacts the innocent children of the world.”
Another member shared that the system had “done NOTHING to protect my children in
the past. You should get in touch with KARE -11.” The suggestion to call the media
demonstrates that group members understood that their discussion about children being
abused at a childcare facility was part of a broader social conversation and about which the
public would be concerned.
The many comments throughout the conversation offering to speak in private
messages (PMs) or referencing previous private conversations demonstrate the connection
between those conversations and the overall social discussion happening within the
community at the time. The conversation was so broad that K.G. reached out privately to
Werts to ask additional questions. This demonstrates that the private discussion was
generated in response to Werts’s previous online speech, placing the private conversation
squarely within the context of the broader social conversation happening online. Werts’s
private conversation simply continued the online conversation, as K.G. discussed with
Werts her concern about finding the right childcare provider for her child. Because Werts’s
private conversation was part of the broader online conversation, its context strongly
weighs in favor of concluding that it was on a matter of public concern.
35
Overall, the context of the speech of all appellants weighs strongly in favor of the
conclusion that the speech was on a matter of public concern. In sum, broadly construing
UPEPA to protect the right of freedom of speech, and because the content, form, and
context here weigh in favor of concluding that the speech was on a matter of public
concern, we conclude that UPEPA applies to the claims against each of the appellants.
II. The district court erred by denying appellants’ motions to dismiss.
Appellants argue that the district court erred by denying their motions to dismiss
because their statements were not defamatory. Again, we agree.
Because UPEPA applies, the next step is to evaluate whether Goddard as the
nonmoving party has established a prima facie case for each essential element of the
challenged causes of action. See Minn. Stat. § 554.13(a)(3)(i). The parties do not dispute
that Goddard established a prima facie case for defamation and civil conspiracy, so we
move to the final step in which we evaluate whether appellants have demonstrated a basis
for dismissal because either respondents failed to state a claim upon which relief can be
granted or because there are no genuine issues of material fact and appellants are “entitled
to judgment as a matter of law.” Minn. Stat. § 554.13(a)(3)(ii).
A party may bring a motion to dismiss under Minnesota Rule of Civil Procedure
12.02(e) for failure to state a claim. But if the parties present matters outside the pleading
and those matters are not excluded by the district court, “the motion shall be treated as one
for summary judgment” under Minnesota Rule of Civil Procedure 56, and “all parties shall
be given a reasonable opportunity” to present all relevant material. Id. Summary judgment
must be granted “if the movant shows that there is no genuine issue as to any material fact
and the movant is entitled to judgment as a matter of law.” Minn. R. Civ. P. 56.01. “We
36
review a district court’s summary judgment decision de novo. In doing so, we determine
whether the district court properly applied the law and whether there are genuine issues of
material fact that preclude summary judgment.” Riverview Muir Doran, LLC v. JADT Dev.
Grp., LLC, 790 N.W.2d 167, 170 (Minn. 2010) (citation omitted). “In ruling on a motion
under section 554.09, the court shall consider the pleadings, the motion, any reply or
response to the motion, and any evidence that could be considered in r uling on a motion
for summary judgment.” Minn. Stat. § 554.12 (2024).
Here, the district court had before it several affidavits and exhibits, thereby requiring
it to treat the motions as ones for summary judgment, which it did at least as to some of the
nonappealing co -defendants. See Minn. R. Civ. P. 12.02(3) . The district court denied
appellants’ motions to dismiss because it determined that each appellant made statements
that could be “construed as non-opinion.”
“Under the common law, a plaintiff pursuing a defamation claim must prove that
the defendant made: (a ) a false and defamatory statement about the plaintiff; (b ) in [an]
unprivileged publication to a third party; (c) that harmed the plaintiff’s reputation in the
community.” Freborg, 995 N.W.2d at 384 (quotation omitted). “The question of whether
a statement’s language reasonably conveys a defamatory meaning is one of law ” that we
review de novo. McKee v. Laurion, 825 N.W.2d 725, 731 (Minn. 2013).
A. Statements of Opinion
Goddard contends that Werts and Caballero-Morris defamed it when they stated that
Goddard’s owner “tries to cover everything up until he knows he is going to actually get
investigated” (Werts) and that “there was a cover up of child abuse” by the employees and
owner of Goddard (Caballero-Morris).
37
Statements of opinion are not actionable as defamation because “[t]he First
Amendment protects opinion from defamation liability.” Larson v. Gannett Co. , 940
N.W.2d 120, 147 (Minn. 2020). To be nonactionable, an opinion or statement must be one
that “cannot be reasonably interpreted as stating a fact” and “cannot be proven true or
false.” McKee, 825 N.W.2d at 733. We consider four factors when distinguishing “a
protected statement of opinion from an actionable statement of fact . . . : (1) the statement’s
precision and specificity; (2) the statement’s verifiability; (3) the social and literary context
in which the statement was made; and (4) the statement’s public context.” Hunt v. Univ.
of Minn., 465 N.W.2d 88, 93 (Minn. App. 1991) (citing Janklow v. Newsweek, Inc. , 788
F.2d 1300, 1302-03 (8th Cir. 1996)). These factors “must be considered together” and “the
decision whether a statement is fact or opinion must be based on all the circumstances
involved.” Janklow, 788 F.2d at 1302.
First, appellants’ statements lack precision and specificity . Without specifics, it is
impossible to measure what “cover everything up” means just as terms like “favoritism”
or “a real tool” have ambiguous implications and are, therefore, too imprecise to be
actionable as defamation. See Lund v. Chi. & Nw. Transp. Co. , 467 N.W.2d 366, 368 -69
(Minn. App. 1991); McKee, 825 N.W.2d at 733. These terms amount to “rhetorical
hyperbole that cannot be the basis for a defamation action.” McKee, 825 N.W.2d at 733
(quotation omitted). Because of their imprecise nature , appellants’ statements are
impossible to verify.
Second, “if it is plain that the speaker is expressing a subjective view . . . rather than
claiming to be in possession of objectively verifiable facts, the statement is not actionable.”
Schlieman v. Gannett Minn. Broad. , Inc. , 637 N.W.2d 297, 308 (Minn. App. 2001)
38
(quotations omitted), rev. denied (Minn. Mar. 19, 2002). In Hunt, we evaluated whether
the statement that a person “had no integrity” was defamatory. 465 N.W.2d at 91. “Had
no integrity,” like “cover everything up,” has a meaning that may lower a person’s
reputation in some contexts if more information was included . However, in Hunt, we
determined that the speaker expressed his subjective view of Hunt’s integrity when
answering questions about Hunt’s job qualifications and, in that context, “cannot be s een
as fact, but instead must be viewed as a personal impression built over the course of time,
based on general past experience and limited solely to the individual speaker.” Id. at 95.
We conclude the same here. Both Werts and Caballero-Morris were expressing their own
personal impressions based on their past experiences with Goddard.
The third and fourth factors of the social and public context within which the
statements were made further demonstrate that the statements were opinion . Publications
with “a tradition of more colorful, even feisty language,” with a “freer style of personal
expression . . . signal the reader to expect a fair amount of opinion.” Janklow, 788 F.2d at
1304; see also, e.g., Sandals Resorts Int’l Ltd. v. Google, Inc., 925 N.Y.S.2d 407, 415–16
(N.Y. App. Div. 2011)7 (noting that “[t]he culture of Internet communications, as distinct
from that of print media such as newspapers and magazines, has been characterized as
encouraging a freewheeling, anything -goes writing style” and that readers “give less
credence to allegedly defamatory remarks published on the Internet than to similar remarks
made in other contexts”). Appellants were posting on Facebook groups in a free-form style

7 We consider cases from federal and other states ’ courts for their persuasive value. State
v. McClenton, 781 N.W.2d 181, 191 (Minn. App. 2010) , review denied (Minn. June 29,
2010).
39
used by other group members as well. This free style is apparent in the posts in question,
containing misspellings, incorrect capitalization, and careless use of grammar. In this
context, readers would expect a fair amount of opinion, especially in response to posts that
request “input/advice” from other group members. Applying the four factors, we conclude
that the speakers were expressing their subjective views, and it would be apparent to
readers, particularly within the social-media context the posts were written, that the views
expressed by Werts and Caballero-Morris were opinions.
Goddard also complains that Martinez stated that its owner was “over his head in
childcare.” “Over his head” is similarly impossible to define. It is imprecise, impossible
to measure, and could mean different things to different people. Especially considering the
social-media context within which the comment was shared, we conclude that this
statement is opinion and not actionable as defamation for the same reason that “covers
everything up” is nonactionable.
We conclude for the same reasons that Martinez’s statement that the owner was
“totally unqualified to run a childcare center” is a nonactionable statement of opinion.
Although Goddard argues that a fact-finder could determine the owner’s qualifications by
examining whether he and Goddard met licensing standards, Martinez did not state that
Goddard would not meet state licensing standards. Instead, she expressed her opinion that
Goddard’s owner viewed the business as “glorified babysitting.”
Goddard claims that Theis defamed it when she stated that its owner “doesn’t cater
to the needs of the staff or families” and “does not listen to” parents’ concerns. It is unclear
what it means to “cater to the needs” of staff or families, nor how much “catering” must be
lacking before one’s reputation was reduced due to that lack. This statement is imprecise,
40
incapable of being measured, and made within the context of other opinions on a social -
media post. We conclude that this is a statement of opinion.
Because all of these statements are opinion, we conclude that none of them are
actionable in a defamation suit.
B. True Statements
Goddard first complains that Werts defamed it when she stated that “[t]here are
other incidents of child abuse at [Goddard] that [DHS] did not investigate.” Goddard
specifically “ denies that there were ‘other incidents’ of child abuse beyond what was
investigated by the DHS.”
“We have held on numerous occasions that truth is a complete defense to defamation
and ‘true statements, however disparaging, are not actionable.’” Diesen v. Hessburg, 455
N.W.2d 446, 452 (Minn. 1990) (quoting Stuempges v. Parke, Davis & Co. , 297 N.W.2d
252, 255 (Minn. 1980)). Furthermore, even if a statement is not completely accurate, “[a]
statement is substantially accurate if its gist or sting is true,” and “ if it produces the same
effect on the mind of the recipient which the precise truth would have produced.” Jadwin
v. Minneapolis Star & Trib. Co., 390 N.W.2d 437, 441 (Minn. App. 1986) (quotations
omitted); cf. Oaks Gallery & Country Store-Winona, Inc. v. Lee Enters., Inc., 613 N.W.2d
800, 804 (Minn. App. 2000) (determining whether accurate version of statement would
have had “same gist or sting”), rev. denied (Minn. Sept. 13, 2000).
Werts made the complained-of statement as part of her conversation with K.G. The
full statement reads: “Yeah there is also a maltreatment case that happened over the
Summer that was never investigated. A child was verbally and physically abused.
Withheld food and water, child locked in a closet, etc. Owner covered all that up.” The
41
abuse Werts described is substantiated in the record. DHS issued a correction order to
Goddard on December 22, 2023, finding that the school violated “behavior guidance policy
prohibiting certain disciplinary actions” by (1) “subject[ing] children to emotional abuse
by name calling, shaming, and using language that humiliated a child” ; (2 ) “rough
handl[ing] a child after the child had a toileting accident”; (3) “with[olding] drinking water
from a child as a means of behavior guidance”; and (4 ) “placing a child in a closet alone
with the door closed. ” Werts’s description aligns with DHS’s findings. Her apparent
mistaken belief that the abuse was not investigated does not change the substantial accuracy
of her statements. We conclude that her statement is substantially true, as evidenced by
the DHS report in the record.
Goddard also claims that Theis defamed it when she said that she “had some pretty
bad experiences with teachers being too physically rough when ‘disciplining’ the children
or yelling at them.” The first part of this statement, that Theis had “some pretty bad
experiences,” is incapable of being proven true or false due to the subjective nature of the
comment. It is a statement of opinion. But our analysis does not end there. See Milkovich
v. Lorain Journal Co., 497 U.S. 1, 18 -19 (1990) (analyzing factual implications of
statement couched in terms of opinion). The latter half of the sentence describes physical
and verbal abuse consistent with DHS’s findings in both the December 2023 correction
order and a subsequent January 2024 report. While Goddard complains that Theis alleged
that she had personally witnessed this, the veracity of that statement is immaterial because
it only carries a defamatory meaning when paired with the accusation that child abuse
occurred, which DHS found occurred. Neither part of the statement is actionable because
the only portion capable of a defamatory meaning is true.
42
Goddard’s claim that Caballero -Morris defamed it by stating that multiple
employees were guilty of child abuse at Goddard is belied by the record. DHS
substantiated at least two separate allegations of child maltreatment. DHS determined in
its citation order that multiple staff members had demonstrated abusive behavior .
Furthermore, Goddard itself admitted as much by providing evidence that it terminated at
least two staff members for violating child-abuse and maltreatment policies, which are part
of DHS licensing regulations.
Lastly, Goddard contends that Caballero-Morris’s statement that there were “active
cases of child abuse” at Goddard is defamatory. Caballero -Morris made this statement
during a time when DHS investigated and produced multiple reports of substantiated
instances of child maltreatment or abuse . Even if Caballero -Morris made the statement
right after the last investigation concluded, it would not change the gist or sting of her
statement, which is that DHS was investigating Goddard for child abuse occurring a t its
facility. This statement is substantially accurate because the gist or sting of the statement
references DHS’s child -abuse investigations, not whether all of them were completed by
the time she made the statement.
Furthermore, the meaning of a statement must be construed in the context in which
it was made. Jadwin, 367 N.W.2d at 492. Caballero-Morris posted on Facebook, a forum
in which opinions flow freely and people speak less precisely. See Janklow, 788 F.2d at
1304. In fact, she did not even use a complete sentence, but instead said, “Active cases of
child abuse.” We conclude that these statements, viewed in the context in which they were
made, are not actionable because they are true.
43
C. Statements Not Capable of a Defamatory Meaning
Goddard contends that Caballero-Morris defamed him when she said that “the city
and [Goddard’s franchisor] warned” Goddard’s owner that Goddard would not be “a good
investment, [but] he didn’t listen.” Even if the city and franchisor did make those warnings
and Goddard’s now-owner chose not to take that advice, it is unclear how that choice would
harm Goddard’s reputation within the community. We conclude that the statement is not
capable of a defamatory meaning and therefore not actionable.
Werts’s statement to K.G. that “[t]he owner had no childcare experience and comes
from an IT background and his main focus is on his 3 UPS stores” is similarly
nonactionable. The first part of the statement, that the owner had no childcare experience,
is specific enough to be verifiable. However, it is not capable of a defamatory meaning
because lack of experience “is not an aspersion of character.” Jadwin, 390 N.W.2d at 443.
The claim that the owner has a background in IT is verifiable, but incapable of a defamatory
meaning because the owner having that background would not harm Goddard’s reputation
in the community. Furthermore, Werts’s contention that “his m ain focus is on his 3 UPS
stores” is not specific enough to be verifiable and, even if it could be verified, it is not
capable of a defamatory meaning.
Lastly, Goddard argues that Theis defamed it when she stated that she had worked
at Goddard for “about 4-5 months and only 2-4 teachers stayed out of about 25.” This is a
statement of fact, so it is incapable of a defamatory meaning. Moreover, teachers may
leave a place of employment for various reasons, many of which have no bearing upon
their employer and, therefore, would not impact the employer’s reputation in the
community.
44
Opinions shared alongside Theis’s demonstrate that, even if there were high teacher
turnover at Goddard, it did not reduce Goddard’s reputation in the community. For
example, one commenter thought that it indicated “a lot of behind the scenes drama”
although his daughter had good memories of her time at Goddard. Another commenter
noted that “There is turnover everywhere these days and daycares are not immune to that.
I feel like my kids are cared for and safe.” The executive director of Goddard also
explained the turnover by stating: “The Goddard School of Albertville opened 3 years ago
and staff turnover is inevitable your first 2 years of operation.” Because there is no
accepted meaning within the community as to what having a high turnover indicates, the
statement did not reduce Go ddard’s reputation in the community and is not capable of a
defamatory meaning.
After reviewing the complained-of statements and other materials in the record we
conclude that there are no material facts in dispute and that appellants are entitled to
judgment as a matter of law on Goddard’s claims of defamation. In addition, because the
underlying tort of defamation fails, the civil-conspiracy claim necessarily fails as well. See
Harding v. Ohio Cas. Ins. Co., 41 N.W.2d 818, 825 (Minn. 1950) (explaining that civil
conspiracy is not independent cause of action, but rather “predicated upon the tort
committed by the conspirators ”); D.A.B. v. Brown , 570 N.W.2d 168, 172 (Minn. App.
1997) (concluding that “conspiracy count fails because it is not supported by an underlying
tort”).
Reversed and remanded.
C/D-1

WHEELOCK, Judge (concurring in part, dissenting in part)
I concur in parts of the court’s opinion, but I respectfully dissent as to its conclusions
that appellant Heather Werts’s speech in the private messages is subject to the Uniform
Public Expression Act (UPEPA), Minn. Stat. §§ 554.07-.20 (2024), and that, as to certain
statements made by appellant Rachel Caballero -Morris, she is entitled to dismissal of the
claims against her because she is entitled to judgment as a matter of law and there are no
genuine issues of material fact. I would instead conclude that Werts’s speech in the private
messages is not subject to UPEPA and remand the claims related to it, and I would conclude
that Werts and Caballero -Morris are not entitled to expedited relief under UPEPA of
dismissal of the claims of respondent N A Brothers LLC, doing business as The Goddard
School of Albertville (Goddard), against them and remand for further proceedings on those
claims.
I diverge from the majority in part I of their opinion regarding how granular the
analysis must be as to whether UPEPA applies. In my view, the court must consider each
challenged statement to determine whether UPEPA applies. In this case, numerous
statements by multiple speakers in different fora are at issue, which makes this a unique
case as compared to those presented in J&D Dental v. Hou, 26 N.W.3d 491 (Minn. App.
2025), and Johnson v. Freborg, 995 N.W.2d 374 (Minn. 2023). No party argued that we
must engage in a statement -by-statement analysis of the applicability of UPEPA or that if
some of the speech is on a matter of public concern, then all of the speech is on a matter of
public concern. Because we did not receive briefing on that specific question, I would not
decide it here. Given that some statements may meet the public-concern test more readily
C/D-2

than others, I believe that the former approach is the better one. I make this observation
based on the varying content and form of the challenged speech by multiple speakers that
is at issue in this case.
But even assuming without deciding that we may take the latter approach , I would
separately analyze the groups of challenged statements by the location —the form or the
“where”—it occurred, differentiating between the private messages, the STMA Moms
Facebook group, and the St. Michael Albertville Bulletin Board Facebook group. The
different places online in which the challenged statements appeared included Facebook
groups of varying sizes and memberships and an instance of private messaging. Viewing
all Facebook posts and subsequent discussion as if they were each situated similarly as the
“modern public square” may be painting with too broad of a brush.
The form of the speech must be balanced with its content and context; it is not
determinative alone. Each of these considerations—content, form, and context—is distinct
from the other two and we must be careful not to conflate or confuse them. Although I
concur in the court’s conclusion that many of the challenged statements are speech on a
matter of public concern, I believe that several of the statements present a close case. In
particular, I disagree with sweeping Werts’s private -message statements in to the purview
of UPEPA merely because it was the continuation of a conversation that occurred in one of
the Facebook groups. I would analyze that speech separately from speech made in the
group and conclude that its form and content both weigh against a determination that it was
speech on a matter of public concern.
C/D-3

In light of the supreme court’s direction in Freborg that we must apply the
totality-of-the-circumstances test and balance the content, form, and context of the speech
on a case-by-case basis, I am wary of not parsing the speech Goddard challenges by speaker
and by the online forum and specific discussion i n which the speech occurred,
notwithstanding that much of the speech was on a shared topic of quality and safety of
childcare and child maltreatment. See Freborg, 995 N.W.2d at 385 (explaining that,
although speech relating to sexual assault is a matter of public concern generally, caselaw
instructs that there is no per se rule that statements about any sexual abuse, or any crime,
are always matters of public concern). I do not dispute that child maltrea tment and which
schools and childcare providers can be trusted are matters of public concern; however, not
all speech related or adjacent to that topic is automatically insulated as speech on a matter
of public concern.
I also diverge from the majority in part I I of its opinion regarding dismissal of the
claims challenging certain statements made by Caballero-Morris. Specifically, I disagree
with the majority with respect to the following statements, which she made in two separate
online discussions in Facebook groups:
CABALLERO-MORRIS: [J.B.] and just so we are all clear
here, they all did their part in covering . . . this up. The
teachers all the way up to the owner!8
CABALLERO-MORRIS: Definitely stay away from the
Goddard school and Little Miracles. Active cases of child
abuse. Welcome to the area! [S.P.] and I are glad you are here!

8 Consistent with the majority opinion, I have italicized the part of the statement that
Goddard asserts constitutes defamation.
C/D-4

If UPEPA applies, we consider whether dismissal is appropriate under one of the
standards set forth in Minn. Stat. § 554.13(a). Because the district court was required to
treat appellants’ motions to dismiss as summary -judgment motions, we must determine
whether appellants established that there is no genuine issue as to any material fact and the
moving party is entitled to judgment as a matter of law. See Minn. Stat.
§ 554.13(a)(3)(ii)(B). This in turn requires that we apply these standards to Goddard’s
claims of defamation.
To establish defamation, Goddard needed to prove that
(1) the defamatory statement was communicated to someone
other than [ Goddard]; (2) the statement is false; (3) the
statement tends to harm [ Goddard]’s reputation and to lower
[Goddard] in the estimation of the community; and (4) the
recipient of the false statement reasonably understands it to
refer to a specific individual.

McKee v. Laurion , 825 N.W.2d 725, 729 -30 (Minn. 2013) (quotations omitted). To
determine if a defamatory statement is fact or opinion, we consider “1) the statement’s
precision and specificity; 2) the statement’s verifiability; 3) the social and literary context
in which the statement was made; and 4) the statement’s public context.” Lund v. Chi. &
Nw. Transp. Co. , 467 N.W.2d 366, 368 (Minn. App. 1991) , rev. denied (Minn. June 19,
1991). Whether a statement’s language reasonably conveys an opinion or a fact is a
question of law that we review de novo. Id. at 369.
And while generally “s tatements of opinion . . . are not actionable ,” “not all
statements of opinion are constitutionally protected.” Id. at 368-70. Because “expressions
of opinion may imply assertion of objective facts,” id. at 368, and because we must
C/D-5

determine whether a statement is opinion or fact as part of the analysis, the courts have
“concluded that only opinions relating to matters of public concern that are incapable of
being proven true or false, and statements that cannot reasonably be interpreted as stating
actual facts, are constitutionally protected,” id. at 369.
Caballero-Morris’s statements here—“[T]hey all did their part in covering . . . this
up. The teachers all the way up to the owner,” and “[a]ctive cases of child abuse”—are not
too imprecise in nature to be actionable defamatory statements, and they are verifiable.
First, as to the phrase “covering this up,” I would conclude that it is not impossible
to measure what this means and thus that it is not similar to terms like “favoritism” or “a
real tool.” See id. at 369; McKee, 825 N.W.2d at 733. It is plain language that implies that
Goddard and its staff took affirmative steps to prevent the truth about how children were
treated in the school from being known. Indeed, “coverup” appears in the dictionary,
defined as “[a]n effort or strategy of concealment, especially a planned effort to prevent
something potentially scandalous from becoming public.” The American Heritage
Dictionary of the English Language 421 (5th ed. 2018); accord Black’s Law Dictionary
462 (12th ed. 2024) (defining “coverup” as “concealment of wrongdoing by a conspiracy
of deception, nondisclosure, and destruction of evidence, usu[ally] combined with a refusal
to cooperate with investigators”); Merriam-Webster’s Collegiate Dictionary 288 (11th ed.
2003) (defining “coverup” as, first, “a device or stratagem for masking or concealing” and,
second, a “concerted effort to keep an illegal or unethical act or situation from being made
public”). Whether Goddard took steps to conceal child maltreatment is possible to verify
and is not opinion.
C/D-6

Second, as to the phrase “[a]ctive cases of child abuse,” the department of human
services (DHS) investigation report was publicly available and addressed alleged child
maltreatment that had occurred in the past, whereas saying “[a]ctive cases of child abu se”
implied that there were new, not-yet-investigated incidents of child maltreatment that were
an ongoing problem at Goddard. That DHS concluded in its report that different incidents
occurred earlier in time and thus it is true that the earlier alleged incidents actually occurred
does not mean that the statement that there are subsequent active cases is also true.
Caballero-Morris’s statement about active cases is capable of being proven true or false.
Because at least two of Caballero-Morris’s statements are capable of being proved
true or false and can reasonably be interpreted as stating actual facts , they do not lack the
precision and specificity required to constitute defamation. As to these statements, I would
conclude that there are genuine issues of material fact, that Caballero-Morris is not entitled
to judgment as a matter of law, and thus that we cannot dismiss the claims against her with
respect to them. I would therefore affirm the district court’s decision not to grant the
motion to dismiss as to these statements and remand for additional proceedings. And
because I would conclude that Werts’s private-message speech is not subject to UPEPA, I
would also remand the claim against her for additional proceedings.