Olivia N. v. National Broadcasting Co.

Citation126 Cal.App.3d 488,178 Cal.Rptr. 888
CourtCalifornia Court of Appeals
Decision Date07 December 1981
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.

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.

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 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 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 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.)

Motion pictures are accorded First Amendment protections. (Joseph Burstyn, Inc. v. Wilson, supra, 343 U.S. 495, 501, 72 S.Ct. 777, 780, 96 L.Ed. 1098.) "(T)he central concern of the First Amendment in this area is that there be a free flow from creator to audience of whatever message a film or a book might convey.... (T)he central First Amendment concern remains the need to maintain free access of the public to the expression." (Young v. American Mini Theatres (1976) 427 U.S. 50, 77, 96 S.Ct. 2440, 2455, 49 L.Ed.2d 310 (conc. opn. of Powell, J.)) Freedom of speech is not limited to political expression or comment on public affairs. (Time, Inc. v. Hill (1967) 385 U.S. 374, 388, 87 S.Ct. 534, 542, 17 L.Ed.2d 456.) Free speech must "embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period." (Thornhill v. Alabama (1940) 310 U.S. 88, 102, 60 S.Ct. 736, 744, 84 L.Ed. 1093.) The commercial nature of an enterprise does not introduce a non-speech element or relax the scrutiny required by the First Amendment. (First National Bank of Boston v. Bellotti (1978) 435 U.S. 765, 786, fn. 23, 98 S.Ct. 1407, 1421, fn. 23, 55 L.Ed.2d 707; Buckley v. Valeo (1976) 424 U.S. 1, 16, 96 S.Ct. 612, 633, 46 L.Ed.2d 659; New York Times Co. v. Sullivan, supra, 376 U.S. 254, 266, 84 S.Ct. 710, 718, 11 L.Ed.2d 686; Joseph Burstyn, Inc. v. Wilson, supra, 343 U.S. 495, 501-502, 72 S.Ct. 777, 780-781, 96 L.Ed. 1098.)

The electronic media are also entitled to First Amendment protection. (See Red Lion Broadcasting Co. v. FCC (1969) 395 U.S. 367, 386, 89 S.Ct. 1794, 1804, 23 L.Ed.2d 371; Columbia Broadcasting v. Democratic Comm. (1973) 412 U.S. 94, 101-102, 93 S.Ct. 2080, 2085-2086, 36 L.Ed.2d 772; United States v. Paramount Pictures (1948) 334 U.S. 131, 166, 68 S.Ct. 915, 933, 92 L.Ed. 1260.) Television broadcasting poses "unique and special problems not present in the traditional free speech case." (Columbia Broadcasting v. Democratic Comm., supra, 412...

To continue reading

Request your trial
20 cases
  • Herceg v. Hustler Magazine, Inc.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • April 20, 1987
    ...relying on Zamora v. Columbia Broadcasting System, 480 F.Supp. 199 (S.D.Fla.1979) and quoting from Oliva N. v. National Broadcasting System, 126 Cal.App.3d 488, 178 Cal.Rptr. 888 (1981).2 Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40, 94 S.Ct. 2997, 3007, 41 L.Ed.2d 789 (1974) (footnote......
  • McCollum v. CBS, Inc., B025565
    • United States
    • California Court of Appeals Court of Appeals
    • July 12, 1988
    ...(Writers Guild of America, West, Inc. v. F.C.C. (C.D.Cal.1976) 423 F.Supp. 1064, 1154.)" (Olivia N. v. National Broadcasting Co. (1981) 126 Cal.App.3d 488, 492-493, 178 Cal.Rptr. 888 ["Olivia II "].) "[T]he life of the imagination and intellect is of comparable import to the presentation of......
  • Rice v. Paladin Enterprises, Inc.
    • United States
    • U.S. District Court — District of Maryland
    • September 6, 1996
    ...(Ozzy Ozbourne record that included song "Suicide Solution," which exhorted suicide found not actionable); Olivia N. v. NBC, Inc., 126 Cal.App.3d 488, 178 Cal.Rptr. 888 (Ct.App.1981), cert. denied, 458 U.S. 1108, 102 S.Ct. 3487, 73 L.Ed.2d 1369 (1982) (girl raped with bottle by teenaged gir......
  • Smith v. Novato Unified School Dist.
    • United States
    • California Court of Appeals Court of Appeals
    • May 21, 2007
    ...of public order by acts that are themselves violent or that tend to incite others to violence"].) Olivia N. v. National Broadcasting Co. (1981) 126 Cal.App.3d 488, 178 Cal.Rptr. 888 drew a distinction between speech that incites violence, and speech that results in a copycat crime. The cour......
  • Request a trial to view additional results
1 firm's commentaries
  • How the Fifty States View Electronic Data as a “Product”
    • United States
    • LexBlog United States
    • July 31, 2023
    ...movie “as where liability is sought to be imposed directly for the failure to warn”); Olivia N. v. National Broadcasting Co., 178 Cal. Rptr. 888, 892 (Cal. App. 1981) (“television networks would become significantly more inhibited in the selection of controversial materials if liability wer......
4 books & journal articles

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT