The Supreme Court cleared the path yesterday for a jury to decide whether a television network and an affiliated station owe damages to the child victim of a bizarre sexual assault modeled after one starkly depicted in a TV movie.
NBC and KRON-TV in San Francisco say the case has a potential for inhibition of art and journalism "far greater then in libel or even obsecenity cases."
The broadcastrers had petitioned for review of a ruling that the California constitution guaranteed the victim the right to a jury trial of allegations that they were negligent and reckless in televising "Born Innocent" during evening hours when large numbers of children were watching.
The court voted 8 to 1 to let the ruling stand. The dissenter was Justice William J. Brennan Jr. The trail has been tentatively scheduled to begin in August in San Francisco.
The ruling, made by a state appellate court in October, was that the guarantee of a jury trial must prevail even though the U.S. Constitution generally protects broadcast material.
The appeals court reversed a trail judge who held that even if the accusations of negligence were true, the First Amendment barred, and he had to dismiss, the $11 million damage suit brought by Olivio Niemi against NBC and KRON-TV.
Without empaneling a jury, be ruled after viewing the film that it was not "directed to inciting or producing imminent lawless action."
"Born Innocent" contains a scene in a reformatory in which four inmate girls attack Linda ("The Exorcist") Blair while she is showering and artificially rape her with the handle of a "plumber's helper."
KRON-TV ran the film starting at 8 p.m. on Sept. 10, 1974. Three days later, four girls of ages 10 to 15, using a beer or soft-drink bottle, artificially raped Olivia Niemi, then 9, on a San Francisco beach.
In New York City yesterday, NBC said it "will continue to press its substantial defenses." One of them is "that claims of this kind are barred by the First Amendment."
Olivia's lawyers say her assilants had seen "Born Innocent," NBS said they had not.
The court took other actions: SEXUAL DEVICES
Georgia makes it a criminal offense for a person to sell materials he "knows" to be obscene, including any device designed or marketed as useful "primarily" for the stimulation of human genital organs.
Under that law, the state convicted three owners and employes of adult bookstores in Atlanta who sold materials including sexually explicit magazines and vibrators, penis-shaped rubber devices and artificial vaginas.
The Supreme Court voted 6 to 3 to let the convictions stand. Four votes are needed for review.
In a dissenting opinion, Justice Brennan, joined by Justice Thurgood Marshall, said that the court should not have dismissed out of hand the men's claim that their First Amendment rights were violated by the law because it assumes that sellers of magazines found to be obscene knew they were obscene. Justice Potter Stewart, in a separate opinion agreed.
As to the devices, Brennan and Marshall said that the court should have reviewed the men's claim that the law is unconstitutionally vague.
Although the law says that prohibited devices must be "primarily" for sexual stimulation, they said, at least one of the men was convicted "solely on the basis of the guesses and assumptions of the single witness at trial - a policeman who had never used the devices, never seen them used, and who knew of no one who used them for sexual stimulation - that the seized devices were used primarily for the stimulation of human genitals." The dissenters added:
"In a society where the rule of law is paramount, it simply will not do to allow persons, however ignoble their trade - or perhaps because their trade is ignoble - to be convicted of crimes solely because policemen and juries encouraged by the state can conjure up scenes of sexual stimulation in which devices play a major role. CB ANTENNAS
In Cerritos, Calif., a zoning ordinance bars from residential neighborhoods antennas more than 40 feet above ground. At 40 feet, a citizens band operator can reach Hawaii or New York. But John D. Schroeder, wanting to communicate anywhere in the world, violated the ordinance by putting up a 70-foot antenna.
He asked the court to review the case, alleging, among other things, impairment of his freedom of speech. The court's message: you lose. An estimated 7,000 cases raising similar issues are pending around the country. COMMUNITY PROPERTY
The court agreed to review a unique ruling that under California law, the federal Railroad Retirement Act allows the spouse of a retired railroad worker to share in his benefits in a community property settlement made when their marriage is dissolved. JUVENILE RIGHTS
In an Illinois case involving a 16-year-old boy arrested in connection with three homicides, the court let stand, 7 to 2, a decision that before continuing to interrogate him, police did not have to honor his request t o see a parent who was available at the police station.