Reported / Citable
Background
Ryann Tornow and Janelle Alexis Flatt’s husband became involved in an affair in 2023. Tornow sent intimate photographs to Flatt’s husband. Flatt allegedly disclosed these photographs to third parties, including her pastor and a company executive. Tornow filed suit against Flatt in June 2024, alleging public disclosure of private facts, intrusion on seclusion, and unlawful disclosure of intimate visual material. The suit was filed shortly after Tornow received a subpoena and was deposed in Flatt’s divorce proceedings.
Flatt moved to dismiss the suit under the Texas Citizens Participation Act (TCPA), the state’s anti-SLAPP statute, which permits early dismissal of lawsuits deemed to arise from a party’s exercise of protected rights (petitioning and free speech). Flatt argued that Tornow’s lawsuit was retaliatory and barred by the TCPA because it arose in response to Flatt’s subpoenas in the divorce and to Flatt’s purported right to speak about her husband’s infidelity. The trial court denied Flatt’s motion by operation of law when it failed to rule within the statutory deadline.
The Court’s Holding
The First District Court of Appeals affirmed the trial court’s denial of Flatt’s anti-SLAPP motion, holding that Tornow’s claims do not qualify for protection under the TCPA. The court rejected Flatt’s two primary arguments. First, on the right to petition, the court held that temporal proximity alone—the fact that Tornow’s lawsuit came shortly after Flatt’s subpoenas—is insufficient to show the suit was “in response to” protected legal action. The court explicitly rejected a line of cases suggesting that a suit brought after a protected communication automatically satisfies the “in response to” requirement, calling such analysis a “post hoc ergo propter hoc” fallacy. The court stated that without evidence that Flatt’s subpoenas were the factual predicate of Tornow’s claims, mere timing cannot establish causation.
Second, on the right of free speech, the court held that Flatt’s alleged disclosure of intimate photographs of Tornow constitutes a “purely private concern” and does not involve a “matter of public concern” as required by the TCPA. The court acknowledged that adultery and marriage might be topics of general public interest, but concluded that sharing nude photographs of a private individual in a private dispute lacks the relevance to a public audience necessary for TCPA protection. The court noted that disclosing intimate images to a pastor and business executive—even if characterized as a “warning” to the community—does not elevate a private marital dispute into a matter of public concern. The court further rejected Flatt’s argument that the disclosure qualifies as speech about a matter of community interest merely because her local church might hear about it.
Key Takeaways
- Temporal proximity between a protected legal action (like filing a lawsuit or subpoena) and a subsequent claim is not sufficient under Texas anti-SLAPP law to establish that the claim is “in response to” protected conduct; the party seeking dismissal must show a causal connection.
- Disclosure of intimate images of a private individual is not protected speech under the TCPA, even when framed as commentary on infidelity or adultery.
- Private disputes between private persons do not qualify as matters of public concern under the TCPA merely because some segment of the public might take interest in the scandal; the communication must have genuine public relevance at the time it is made.
Why It Matters
This decision clarifies important limits on the Texas Citizens Participation Act’s reach. While anti-SLAPP statutes are designed to protect legitimate speech and petitioning rights, courts must not allow them to shield truly private conduct. The First District’s rejection of pure temporal causation is particularly significant: it prevents defendants from weaponizing anti-SLAPP protections by arguing that any lawsuit filed after they exercise a legal right must be retaliatory. This holding aligns the First District with its own prior precedent and rejects the more permissive approach taken in some other Texas courts.
The decision is also notable for its treatment of intimate image disclosure. By holding squarely that sharing nude photographs of a private person is not a matter of public concern, the court recognized a meaningful exception to anti-SLAPP protections and provided a stronger foundation for privacy claims against intimate image abuse. The ruling suggests that even in the context of a marital dispute or accusations of infidelity, defendants cannot easily escape liability for non-consensual disclosure of intimate images by invoking free speech rights. For practitioners, the case signals that courts will scrutinize attempts to recharacterize private grievances as public-interest speech.