On the night of Sept. 10, 1974, NBC stations broadcast "Born Innocent," a two-hour made-for-television film starring Linda Blair as a teen-age runaway who was caught and committed to a reformatory.
In one segment, she is taking a shower. A look of fear crosses her face as four other inmate girls, one carrying a "plumber's helper," approach.
The film shows Blair being wrestled to the floor. The girl with the plumber's helper is shown making thrusting motions until one of the other says, "That's enough." The victim is left sobbing on the floor.
Three days later, the brutal crime graphically depicted on TV was imitated in real life. Using a beer or soft-drink bottle, four girls - one 10, one 13, two 15 - assaulted Olivia Niemi, 9, in San Francisco.
Police said the girls told them they had viewed "Born Innocent" on KRON-TV and had been stimulated by it to imitate the assault. Juvenile authorities eventually released them on probation.
Alleging psychic and other harm as well as physical injuries, Olivia sued NBC and the station's owner, Chronicle Publishing Co. for $1 million in actual and $10 million in punitive damages.
The case brings to the fore long-simmering concerns and controversies about the relationship between the freedom of expression guaranteed by the Constitution and the television of violence during hours when large numbers of children are in the audience.
As a result of the suit, the Supreme Court has three questions before it:
Does the First Amendment absolutely bar a damage suit as such as Olivia's?
Does she have a right to put before a jury her evidence of alleged negligent and reckless conduct by NBC and KRON-TV?
If she has such a right, could telecasters be sued for screening an assassination or other violence news event that someone in a vast audience might imitate? Would a library be liable for circulating a book that provided a model for a crime subsequently committed by a reader?
The attack scene in "Born Innocent" produced numerous protests. It was so realistic that in letters to NBC, hundreds of viewers around the country indicated a belief that penetration had occurred. But in a friend-of-the-court brief, another network, CBS Inc., recalled viewers acclaiming the film for its evocation of the plight of children who feel unwanted and of the ineffectiveness and oppressiveness of institutions supposed to help them.
A New York Times review, for example, found the script "flawed," but judged the film mainly a "serious and carefully researched examination of very real social phenomena." When the film "worked," it was "powerful, provocative and terribly disturbing," the review said.
CBS termed it "clear beyond question that the program . . . did not advocate unlawful action or sexual assault; indeed, it condemned it."
The 27,000-member California Medical Association disagreed. Because the children who attacked Olivia "acted out what they saw, we now have a real life victim with real life scars - brought to her by NBC," the association charged in another friend-of-the-court brief. "Television is a school of violence and a college for crime.
The CMA, the largest state unit of the American Medical Association, said that "50 studies involving 10,000 children and adolescents from every conceivable background . . . showed that viewing violence produced aggressive behavior in the young."
In addition, the CMA said, "a study of 100 juvenile offenders commissioned by ABC found that no fewer than 22 confessed to having copied criminal techniques from television."
For Olivia, lawyer Marvin E. Lewis charged that the attack on her was a "direct and proximate result" of the showing of "Born Innocent," that the defendants knew such a result was possible, that they nonetheless aimed the film at juveniles, and that they did so to serve their "economic interests."
He cited two decades of congressional concern about TV violence, and a recognition by NBC - after the showing of "Born Innocent" - that the hours between 7 p.m. and 9 p.m. should be reserved for violence-free broadcasts for family viewing.
As evidence that NBC had sought a youthful audience, Lewis said that the network had tried to sell commercials to accompany the program to Walt Disney Productions. After previewing the film, Disney and 14 other firm declined.
Twenty-four hours before the airing of "Born Innocent," NBC had broadcasts "Born Free," a show about lion cubs that is intended for children.
Lewis accused NBC of using the same format in TV Guide advertisements for the similarly named shows so as to induce "parents and children to believe that they were again seeing 'Born Free' on the following night." He noted that the "Born Innocent" ad featured Linda Blair's age, 15.
Olivia's suit came before Superior Court Judge John A. Ertola. After viewing the film, he dismissed the complaint without hearing expert testimony or impanelling a jury.
Assuming for the purpose of this ruling that every accusation against the network and the station was true, Ertola decided as a fact that "Born Innocent" was "not in whole or in part directed to inciting or producing imminent lawless action."
Holding that it would be useless to try a suit absolutely barred by the First Amendment, Ertola said that the state "is not about to begin using negligence as a vehicle to freeze the creative arts." The law "provides no remedy" for Olivia, he said.
A three-judge state appeals court agreed "that meterial 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," and that TV is specifically a "medium which is entitled" to it.
But Olivia had demanded a jury trial. Under the California constitution that is "an inviolate right . . . secured to all." Consequently, the panel said, Ertola violated that right by viewing the film himself and no that basis, making findings of fact and dismissing the suit. It was "reversible error and an act in excess of jurisdiction," the panel ruled.
Backed by five friends-of-the-court briefs, the network and the station petitioned the Supreme Court to review the appellate ruling after Justice William H. Rehnquist refused to stay it. Olivia, backed only by the CMA, urged the court to let the decision stand. If it does so, the case is tentatively scheduled to go to trial in August.
As NBC and the station defined the "insidious" legal theory underpinning Olivia's suit, creators and exhibitors of dramatic works - and likely exhibitors of news events - would be liable for injury caused by an imitation of "any aspect" of the presentation. It wouldn't matter if a person actually causing an injury were depraved, or if the party who could be sued had no intention of causing either the imitation or the injury. Do assaults on one girl by others occur? Yes, said the broadcasters. Until "Born Innocent" was telecast, they were "practically unheard of," Lewis said. For a year after the film was shown, he said, inmates of juvenile home in Tacoma, Wash., who had seen the show subjected newcomers to a "Born Innocent" initiation.
The American Library Association said that if the distributor of a creative work, even one by Shakespeare, can be held liable because a person uses it as a model for a criminal act, "then libraries must close down and education must cease."
Similarly, the National Association of Broadcasters saw an "inestimable" threat to "virtually the entire range of creative expression."