Com. v. Wiseman

• Decision Date: 24 June 1969
• Citation: 249 N.E.2d 610,356 Mass. 251
• Parties: COMMONWEALTH et al. v. Frederick WISEMAN et al. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 610

249 N.E.2d 610

356 Mass. 251

COMMONWEALTH et al. v. Frederick WISEMAN et al. ¹

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 6, 1969.

Decided June 24, 1969.

James D. St. Clair, Wellesley Hills (Blair L. Perry, Boston, with him) for defendants Frederick Wiseman and another.

George C. Caner, Jr., Sp. Asst. Atty. Gen., for plaintiffs.

Henry P. Monaghan, Boston, for Civil Liberties Union of Massachusetts, amicus curiae.

Martin Levine, Washington, D.C., and Harold S. H. Edgar, New York City, for American Orthopsychiatric Ass'n, amicus curiae.

Sherwood B. Smith, Jr., Washington, D.C., for American Sociological Ass'n, Inc., amicus curiae.

Before WILKINS, C.J., and SPALDING, WHITTEMORE, CUTTER, and SPIEGEL, JJ.

CUTTER, Justice.

This bill seeks, among other relief, to enjoin all showings of a film entitled 'Titicut Follies,' containing scenes at Massachusetts Correctional Institution at Bridgewater (Bridgewater), to which insane persons charged with crime and defective delinquents may be committed. See G.L. c. 125, § 19, as amended through St. 1967, c. 619, § 2. The film was made between April 22, and June 29, 1966. Mr. Wiseman and Bridgewater Film Company, Inc. (BFC) appeal from an interlocutory decree, an order for a decree, and the final decree which enjoins showing the film 'to any audience' and requires Mr. Wiseman and BFC to deliver up to the Attorney General for destruction specified films, negatives, and sound tapes. The plaintiffs appeal from the final decree because it did not order sums realized by various defendants from showing the film to be held for distribution as the court might direct.

The trial judge made a report of material facts. The evidence (2,556 pages of proceedings on eighteen trial days and sixty-four exhibits) is reported. The facts, except as otherwise indicated, are stated on the basis of the trial judge's findings and certain exhibits. The film has been shown to the Justices participating in this decision.

In 1965, Mr. Wiseman first requested permission from the Superintendent and from the Commissioner to make an educational documentary film concerning Bridgewater. His first request was denied. On January 28, 1966, permission was granted, subject to the receipt of a favorable opinion from the Attorney General (that the officials could grant permission) and to the conditions (a) that 'the rights of the inmates and patients * * * (would be) fully protected,' (b) that there would be used only 'photographs of inmates and patients * * * legally competent to sign releases,' (c) that a written release would be obtained 'from each patient whose photograph is used in the film,' and (d) that the film would not be released 'without first having been * * * approved by the Commissioner and Superintendent.' The existence of the final condition was the subject of conflicting evidence but there was oral testimony upon which the trial judge could reasonably conclude that it had been imposed.

The then Attorney General (Mr. Brooke) on March 21, 1966, advised that 'the Superintendent may, if he deems it advisable, permit Mr. Wiseman to make his film at' Bridgewater. Permission was then given.

In April, 1966, Mr. Wiseman and his film crew started work at Bridgewater. They were given free access to all departments except the treatment center for the sexually dangerous, whose director made 'strong objections' in writing to any photography there without compliance with explicit written conditions. In three months, 80,000 feet of film were exposed. Pictures were made 'of mentally incompetent patients * * * in the nude * * * (and) in the most personal and private situations.'

In approaching the Commissioner and the Superintendent, Mr. Wiseman had indicated that he planned a documentary film about three people: an adult inmate, a youthful offender, and a correctional officer. It was to be an effort 'to illustrate the various service performed--custodial, punitive, rehabilitative, and medical.' The judge concluded (a) that the 'plain import of (Mr.) Wiseman's representations was that his film was to be * * * non-commercial and non-sensational,' whereas, in the judge's opinion, it was 'crass * * * commercialism'; (b) that, in fact, the film 'constitutes a most flagrant abuse ² of the privilege * * * (Mr. Wiseman) was given'; and (c) that, instead of 'a public service project,' the film, as made, is 'to be shown to the general public in movie houses.'

The Superintendent first saw the film on June 1, 1967, and objected, among other things, 'to the excessive nudity.' The then Attorney General (Mr. Richardson) also saw the film in June, 1967, and raised several questions. At a conference on September 21, 1967, Mr. Wiseman and his legal advisers were told by the Attorney General 'that in his opinion the film constituted an invasion of the privacy of the inmates shown in the film; that mentally incompetent patients were shown * * * and that the releases, if any, obtained by (Mr.) Wiseman were not valid.' The Commissioner saw the film 'for the first time on * * * September 21, 1967.' On the next day, he notified Mr. Wiseman 'that the film could not be shown 'in its present form."

In September, 1967, Mr. Wiseman made an agreement with Grove for distribution of the film for 'showing to the general public * * * throughout the United States and Canada,' with Mr. Wiseman to receive '50% of the theatrical gross receipts, and 75% from any television sale.' Grove, for promotion of the film, was to have 'complete control of the manner and means of distribution.' The film was shown privately, and to the public for profit, in New York City in the autumn of 1967.

The trial judge ruled, inter alia, (a) that such 'releases as may have been obtained (from inmates) are a nullity'; (b) 'that the film is an unwarranted * * * intrusion * * * into the * * * right to privacy of each inmate' pictured, degrading 'these persons in a manner clearly not warranted by any legitimate public concern'; (c) that the 'right of the public to know' does not justify the unauthorized use of pictures showing identifiable persons 'in such a manner as to * * * cause * * * humiliation'; (d) that 'it is the responsibility of the State to protect' the inmates 'against any such * * * exploitation'; and (e) that the Commonwealth is under 'obligation * * * to protect the right of privacy of those * * * committed to its * * * custody.' ³

Reactions to the film set out in the record vary from the adversely critical conclusions of the trial judge to those expressed by witnesses ⁴ who regarded it as fine journalistic reporting, as education, and as art. ⁵ The Attorney General (Mr. Richardson) testified that the film 'was impressive in many ways * * * powerful in impact.' He, however, expressed concern about the problem of obtaining valid releases, even from those 'conceivably competent,' since the releases would have been given before the inmates 'could have any idea how they would be depicted.' There was testimony from experts about the value of the film for instruction of medical and law students, and 'exposture of conditions in a public institution.' ⁶

1. We are in as good a position as the trial judge to appraise the film and to determine to what extent (a) its exhibition may invade rights of inmates to privacy or (b) its suppression may interfere with countervailing interests. We may reach our conclusions about the film as documentary evidence, unaffected by findings by the trial judge. See Berry v. Kyes, 304 Mass. 56, 57--58, 22 N.E.2d 622; Skil Corp. v. Barnet, 337 Mass. 485, 488, 150 N.E.2d 551; F.A. Bartlett Tree Expert Co. v. Barrington, 353 Mass. 585, 586, 233 N.E.2d 756, fn. 1. As to findings based in part upon oral evidence, we decide the case according to our judgment, giving due weight to the judge's findings according to our usual standards of review. See Lowell Bar Assn. v. Loeb, 315 Mass. 176, 178, 52 N.E.2d 27; Jones v. Jones, 349 Mass. 259, 261--262, 207 N.E.2d 922. See also Colbert v. Hennessey, 351 Mass. 131, 134, 217 N.E.2d 914.

2. The Commissioner and the Superintendent would have acted wisely if they had reduced any agreement to writing rather than to have risked the misunderstandings possible in oral discussions. They also might have avoided dispute if they had supervised the filming itself much more closely. We, however, need not decide whether the judge on conflicting evidence, largely oral, was plainly wrong in concluding that Mr. Wiseman had agreed to abide completely by the officials' judgment. We think that, in any event, he did not comply adequately with at least two other conditions reasonably imposed upon him before permission to make the film was granted.

Early in the negotiations, Mr. Wiseman represented in writing that only pictures of inmates 'legally competent to sign releases' would be used and that the 'question of competency would * ** be determined by the Superintendent and his staff.' In the 1966 request for the Attorney General's opinion, Mr. Wiseman was quoted as giving assurance that a written release would be obtained 'from each * * * patient whose photograph is used.' The latter assurance was quoted in the opinion (March 21, 1966) stating that the Superintendent had power to permit the film to be made. In the circumstances, the judge reasonably could conclude that these representations were a part of the arrangement.

The judge was also clearly justified in deciding on the basis of expert testimony, that some of sixty-two inmates identified as shown in the film were incompetent to understand a release and, on the basis of a stipulation, that releases were obtained only from eleven or twelve of the numerous inmates depicted. There was ample basis for concluding that Mr. Wiseman had not fulfilled important undertakings clearly designed to assure that the film would show only those consenting in writing to their appearance in the film and competent to understand and...