There is a major verdict out of Texas where a mother and an attorney were ordered to pay millions for perpetuating an alleged hate crime hoax that was eagerly spread by the mainstream media. Asher Vann, a minor at the time, was labeled a racist maniac who tortured SeMarion Humphrey, his black classmate, with other classmates. After the jury found that the allegations constituted the intentional infliction of emotional distress, the same media that spread the story remained conspicuously silent. Crickets.

Major media outlets from NBC to CBS to the Daily Mail published the account of how Humphrey was tortured, shot with BB guns, and forced to drink urine during a sleepover. The NAACP and Black Lives Matter protested the lack of action from officials ignoring the alleged racist attack.

Good Morning America aired a segment featuring ABC host Linsey Davis, who promoted a GoFundMe account that raised approximately $120,000 for “therapy and private schooling.” In her interviews, Humphrey’s mother, Summer Smith, called Vann “evil” and described his depravity to enabling reporters like Linsey Davis.

Some, however, were not convinced. Washington Free Beacon reported that Smith spent less than $1,000 of the donated funds toward her son’s schooling while spending funds on items including a designer dog, dining, travel, beauty products, liquor and vapes.

Parents rallied around the Humphrey family and held events at the school.

Eventually, the case against Vann was submitted to a grand jury, despite later testimony by Plano Police Department officer Patricia McClure that she did not believe there was probable cause for any charge. Given the pressure campaign, it was given to a grand jury anyway. The grand jurors then refused to indict.

Vann sued and testified that the alleged racist act occurred at a camp that was caught in a snowstorm.  Unsupervised, the teenagers engaged in dumb games and pranks. He said that, after unsuccessfully searching for small game, they decided to shoot each other. All of the kids were wearing thick clothing and shot each other with the BB guns for fun. He testified that Humphrey participated in the game with everyone else in both being shot and shooting others.

The urine was described as a prank that was played on various boys, according to Vann, but no one actually drank from the cup.

Under the common law, the elements of the tort of an intentional infliction of emotional distress require a plaintiff to show that the defendant “(a) intentionally engaged in some conduct toward the plaintiff considered outrageous and intolerable in that it offends the generally accepted standards of decency and morality; (b) with the purpose of inflicting emotional distress or where any reasonable person would have known that such would result; and (c) that severe emotional distress resulted as a direct consequence of the defendant’s conduct.”

A racially diverse jury handed down a verdict against Humphrey’s mother and the family attorney, Kim Cole. The inclusion of the lawyer in the verdict makes this a relatively rare case.

Smith and Cole were ordered to pay $3.2 million in damages to Vann, now an adult in college. Both the mother and the lawyer were ordered to pay $1,599,000.00.

The case raised obvious analogies to other cases that were eagerly promulgated by the media but later disproven, such as the Jussie Smollett hoax.

The Smollett story of MAGA-associated racists roaming the streets of Chicago was irresistible as politicians like Nancy Pelosi and others piled on. ABC’s Robin Roberts gave Smollett an interview that was breathtaking in its lack of substantive questions or even curiosity about glaring red flags in his account. Roberts described Smollett as “bruised but not broken” and nodded as he described his narrow escape from being lynched in America. She concluded the interview with “Beautiful, thank you, Jussie.”

The Texas case followed the same trajectory as the media built up the story and then went silent as countervailing facts were produced by the family.

Once again, the role and liability of counsel Cole is particularly interesting. We discussed a claim of defamation by counsel in the Depp-Heard case.

Attorneys are protected by absolute privilege in court in making harmful and even false statements. This privilege is best stated in the Restatement of Law (Second) of Torts section 586 “to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as part of, a judicial proceeding in which he participates as counsel, if it has some relation to the proceedings.”

However, it also means that “statements made during an occasion outside a judicial proceeding are not covered.” Thus, while “[t]he duties and actions of a lawyer in representing a client are not confined to judicial proceedings,” the court ruled that interviews with a reporter would fall outside of the privilege. Most courts reject the notion of an absolute privilege while considering a more limited possible privilege for out-of-court statements. See Kennedy v. Cannon, 229 Md. 92, 182 A.2d 54, 58 (1962) (the “absolute privilege will not attach to counsel’s extrajudicial publications, related to the litigation, which are made outside the purview of the judicial proceeding”).

Likewise, actions by counsel can be deemed as the intentional infliction of emotional distress as well as privacy violations. This can be a dangerously fluid line, since all litigation causes some degree of emotional distress, particularly in tort cases, where reputations are attacked. Moreover, lawyers often assist clients in seeking donations to GoFundMe accounts, which may help defray legal fees. Such public advocacy, however, entails a greater risk of liability.

The key in this case was the actions taken outside of the court as well as the alleged falsity of the underlying representations.

The targeting of a minor is particularly notable in this case and raises memories of the disgraceful media attacks on Nick Sandmann, who was falsely accused of abusing a Native American activist in front of the Lincoln Memorial. Despite various media organizations correcting the story and some settling with Sandmann, some in the media continued to attack him.

The Vann case is likely to be reviewed by many lawyers outside Texas. It is a case that could be replicated in future cases involving lawyers accused of fueling reckless or inflammatory public claims. The fact that the damages were evenly divided between the mother and the lawyer shows the level of culpability that the jury assigned to the role of the lawyer.

Here is the jury verdict form: Jury-Verdict