Olivia N. v. National Broadcasting Co.

• Court: California Court of Appeals
• Writing for the Court: Wylie Aitken, Santa Ana, Robert E. Cartwright, San Francisco, Edward I. Pollock, Los Angeles, Glen T. Bashore, North Fork, Stephen I. Zetterberg, Claremont; CHRISTIAN; CALDECOTT, P. J., and POCHE
• Citation: 126 Cal.App.3d 488,178 Cal.Rptr. 888
• Parties: , 7 Media L. Rep. 2359 OLIVIA N., a Minor, etc., Plaintiff and Appellant, v. NATIONAL BROADCASTING CO., INC., et al., Defendants and Respondents. Civ. 46981.
• Decision Date: 07 December 1981

Page 888

178 Cal.Rptr. 888 126 Cal.App.3d 488, 7 Media L. Rep. 2359 OLIVIA N., a Minor, etc., Plaintiff and Appellant,
v.
NATIONAL BROADCASTING CO., INC., et al., Defendants and Respondents. Civ. 46981. Court of Appeal, First District, Division 4, California. Dec. 7, 1981.
Hearing Denied Feb. 2, 1982.

[126 Cal.App.3d 490]

Page 890

Lewis, Rouda & Lewis, Marvin E. Lewis, San Francisco, for plaintiff and appellant; Victoria J. De Goff, Berkeley, of counsel.

James J. Brosnahan, Linda E. Shostak, Morrison & Foerster, San Francisco, Floyd Abrams, Dean Ringel, Patricia A. McGovern, Cahill Gordon & Reindel, New York City, for defendants and respondents.

Hassard, Bonnington, Rogers and Huber, Howard Hassard, David E. Willett, Nancy E. Hudgins, San Francisco, for amicus curiae California Medical Assn.

Wylie Aitken, Santa Ana, Robert E. Cartwright, San Francisco, Edward I. Pollock, Los Angeles, Glen T. Bashore, North Fork, Stephen I. Zetterberg, Claremont, J. Nick DeMeo, Santa Rosa, Sanford M. Gage, Beverly Hills, Stephen L. Odgers, Newport Beach, Harvey R. Levine, San Diego, Leonard Sacks, Encino, Joseph Posner, Beverly Hills, for amicus curiae California Trial Lawyers Assn.

CHRISTIAN, Associate Justice.

Olivia N. appeals from a judgment of nonsuit terminating her action against the National Broadcasting Company and the Chronical Broadcasting Company. Appellant sought damages for physical and emotional injury inflicted by assailants who had seen a television broadcast of a film drama.

A defense motion for summary judgment was denied, and the case was set for trial by jury. Before impanelment of a jury the trial court viewed the film and determined for itself that the film did not serve to incite violent and depraved conduct such as the crimes committed against the plaintiff, and on that basis rendered judgment for defendants.

On appeal from the judgment this court recognized that certain narrowly limited classes of speech may be prevented or punished by the state consistent with the principles of the First Amendment and held that "the trial court's action in viewing the film, and thereupon making fact findings and rendering judgment for respondents, was a violation of appellant's constitutional right to trial by jury." (Olivia N. v. National Broadcasting Co. (1977) 74 Cal.App.3d 383, 389, 141 Cal.Rptr. 511.) Therefore, the judgment was reversed with directions to impanel a jury and proceed to trial of the action.

[126 Cal.App.3d 491] On remand, appellant's counsel in his opening statement to the jury indicated that the evidence would establish negligence and recklessness on respondents' part, rather than incitement. ¹ At the conclusion of appellant's opening statement, respondents moved for a judgment of nonsuit (Code Civ.Proc., § 581c, subd. (a)) on the grounds that appellant admittedly could not meet the test for incitement. (Brandenburg v. Ohio (1969) 395 U.S. 444, 447, 89 S.Ct. 1827, 1829, 23 L.Ed.2d 430.) Appellant's counsel again acknowledged his inability to meet the incitement test; the trial court granted respondents' motion and rendered judgment dismissing the action. Plaintiff again appealed.

A trial court may grant a defendant's motion for nonsuit only if the plaintiff's evidence would not support a jury verdict in plaintiff's favor. (Ewing v. Cloverleaf Bowl (1978) 20 Cal.3d 389, 395, 143 Cal.Rptr. 13, 572 P.2d 1155; see Pike v. Frank G. Hough Co. (1970) 2 Cal.3d 465, 469, 85 Cal.Rptr. 629, 467 P.2d 229.) Where a nonsuit is granted on the opening statement, factual recitals in the opening statement must be accepted as true. (See Willis v. Gordon (1978) 20 Cal.3d 629, 633-634, 143 Cal.Rptr. 723, 574 P.2d 794.)

At 8 p. m. on September 10, 1974, NBC telecast nationwide, and Chronicle Broadcasting

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Company broadcast locally, a film entitled "Born Innocent." "The subject matter of the television film was the harmful effect of a state-run home upon an adolescent girl who had become a ward of the state. In one scene of the film, the young girl enters the community bathroom of the facility to take a shower. She is then shown taking off her clothes and stepping into the shower, where she bathes for a few moments. Suddenly, the water stops and a look of fear comes across her face. Four adolescent girls are standing across from her in the shower room. One of the girls is carrying a 'plumber's helper,' waving it suggestively by her side. The four girls violently attack the younger girl, wrestling her to the floor. The young girl is shown naked from the waist up, struggling as the older girls force her legs [126 Cal.App.3d 492] apart. Then, the television film shows the girl with the plumber's helper making intense thrusting motions with the handle of the plunger until one of the four says, 'That's enough.' The young girl is left sobbing and naked on the floor." (Olivia N. v. National Broadcasting Co., supra, 74 Cal.App.3d 383, 386, 141 Cal.Rptr. 511.) It is alleged that on September 14, 1974, appellant, aged 9, was attacked and forcibly "artificially raped" with a bottle by minors at a San Francisco beach. (Id., at pp. 386-387, 141 Cal.Rptr. 511.) The assailants had viewed and discussed the "artificial rape" scene in "Born Innocent," and the film allegedly caused the assailants to decide to commit a similar act on appellant. Appellant offered to show that NBC had knowledge of studies on child violence and should have known that susceptible persons might imitate the crime enacted in the film. Appellant alleged that "Born Innocent" was particularly likely to cause imitation and that NBC televised the film without proper warning in an effort to obtain the largest possible viewing audience. Appellant alleged that as a proximate result of respondents' telecast, she suffered physical and psychological damage.

Appellant contends that where there is negligence liability could constitutionally be imposed despite the absence of proof of incitement as defined in Brandenburg v. Ohio, supra, 395 U.S. 444, 447, 89 S.Ct. 1827, 1829, 23 L.Ed.2d 430. Appellant argues in the alternative that a different definition of "incitement" should be applied to the present circumstances.

"Analysis of this appeal commences with recognition of the overriding constitutional principle that material communicated by the public media, including fictional material such as the television drama here at issue, is generally to be accorded protection under the First Amendment to the Constitution of the United States. (Joseph Burstyn, Inc. v. Wilson (1952) 343 U.S. 495, 501, 72 S.Ct. 777, 780, 96 L.Ed. 1098 ( ); Winters v. New York (1948) 333 U.S. 507, 510, 68 S.Ct. 665, 667, 92 L.Ed. 840 ( ).)" (Olivia N. v. National Broadcasting Co., supra, 74 Cal.App.3d 383, 387, 141 Cal.Rptr. 511.) First Amendment rights are accorded a preferred place in our democratic society. (Thomas v. Collins (1945) 323 U.S. 516, 530, 65 S.Ct. 315, 322, 89 L.Ed. 430.) First Amendment protection extends to a communication, to its source and to its recipients. (Va. Pharmacy Bd. v. Va. Consumer Council (1976) 425 U.S. 748, 756, 96 S.Ct. 1817, 1822, 48 L.Ed.2d 346.) "(A)bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content." (Police Department of Chicago v. Mosley (1972) 408 U.S. 92, 95, 92 S.Ct. 2286, 2289, 33 L.Ed.2d 212; see Consolidated Edison v. Public Serv. Comm'n (1980) 447 U.S. 530, 538-539, 100 S.Ct. 2326, 2333-2334, 65 L.Ed.2d [126 Cal.App.3d 493] 319; Carey v. Brown (1980) 447 U.S. 455, 462-463, 100 S.Ct. 2286, 2290-2291, 65 L.Ed.2d 263; Cohen v. California (1971) 403 U.S. 15, 24, 91 S.Ct. 1780, 1787, 29 L.Ed.2d 284; New York Times Co. v. Sullivan (1964) 376 U.S. 254, 269-270, 84 S.Ct. 710, 720-721, 11 L.Ed.2d 686.) Applied to the electronic media, the First Amendment means that it is the broadcaster that has authority to make programming decisions. (Writers Guild of America, West, Inc. v. F.C.C. (C.D.Cal.1976) 423 F.Supp. 1064, 1154.)

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