During a two-hour television drama about a runaway teen-ager committed to a girls' reformatory, did NBC "pollute" the air with a brief but vivid scene in a shower-room in which four other inmates rape her with the handle of a plumbers helper?
Was NBC negligent in not foreseeing that the staged artifical rape might be imitated in real life? Must the network pay damages to Olivia Niemi, then 9 years ago, who, three days after the telecast in September 1974, was raped with a beer bottle? Or is it protected by the freedom of expression guaranteed by the First Amendment to the Constitution?
These are major issues in the "Born Innocent" case, in which, for the first time, a victim of a crime similar to one on TV is seeking to have the broadcaster held responsible. In Superior Court here, a judge is to be selected today, and the trial will begin after he disposes of preliminary motions and a jury is impaneled.
Lawyers for Olivia and the network already are arguing - or "trying" - some of the issues in the press.
Last Thursday, for example, NBC's Floyd Abrams, of New York, held a televised press conference. "Unheard of," said Olivia's lawyer, Marvin E. Lewis, who has been practicing here for 50 years. But Abrams, while "uncomfortable" about the event, termed it a necessary "response" to TV and newspaper interviews that Lewis has been giving for more than a month.
Lewis and Abrams both dealt with the "pollution" issue in separate interviews last week.
Lewis said, "There is no difference between a factory that pollutes the atmosphere with soot and chemicals and a TV network that pollutes the minds of our children and youths.
"I believe that if the netowrks, without any governmental authority to stop them, are permitted to produce programs at their discretion, then they must be held accountable, like anyone else, if it can be shown that their programming has proximately caused harm to an innocent person."
As Abrams saw it, however, this is "the standard justification for censorship." There is, he said, "nothing new in seeing censorship imposed in the name of ending the 'pollution' caused by the expression of views deemed unpalatable to people in power.
"Mr. Lewis continues to say that what he is doing is not censorship and is not governmental. The effect of it, if successful, is nothing less than censorhip - and he is using the judiciary, a governmental entity . . ."
Each lawyer was asked what else was at stake, aside from the $1 million in actual and $10 million punitive damages sought by Olivia. Both indicated they see the case as a milestone in the long-simmering controversy about televised violence.
Lewis: "What really is at stake is compelling networks, which have control of the entire country, and of the minds of the people . . . and who are grossing billions, to utilize their great powers for good, not evil . . . The First Amendment cannot be a complete protective armor against any harm that anyone may do."
Abrams: "What is at risk . . . is the ability of broadcasters to do a great deal of serious, and sometimes less than serious, programming . . . I cannot help but view this case as one that threatens the creative arts, and possibly news programming, as they appear on TV." In this vein he asked whether a network should be wary of, say, showing Shakespeare's "Macbeth" (as one has), because of a scene in which Macbeth's severed head is carried about. He also recalled ABC's famed "Roots" series in which the foot of one character is cut off.
Lewis termed TV "unique" because "it's a living picture" beamed directly into the home. He said that a victory for him would threaten no other medium - and not even TV when it isn't "irresponsible."
But Abrams expressed "little doubt" that a victory for Lewis would have "an enormous chilling effect" not only on TV, but also "on other media, including books." He found it "ironic" that the lawsuit arose from a program "so plainly directed at dealing in a serious manner" with common but little-noted abuses in state institutions for children.
He said his evidence will show that the particular crime - one which Lewis says no "worldly" person he knows has ever heard of - occurs in such institutions.
The real-life attack on Olivia occurred on Baker's Beach, which is federal property. Recently unsealed records of the case show that Sharon Smith, then 15, was convicted of wielding the beer bottle. She was aided by two sisters, Quindola, 10, and Eleanor, 12, and their brother, William, 15, who were not committed. Olivia is claimed by her mother, who brought the suit, to have suffered psychic injury.
Lewis accuses NBC of "stimulating" the attack on Olivia, charging that it wanted to start its fall season "with something really earth-shaking," was willing to "gamble" for the higher audience raings by running "Born Innocent" in "family time" (8 p.m. on the west and east coasts), and neglected its "responsibility" to seek expert advise in advance on the effects of telecasting the rape scene.
Abrams pins the responsbility on Sharon Smith, described as "a black inner-city kid who was abused all her life, and has abused others."
While the differences in opinion between Lewis and Abrams are clear, some key factual matters remain muddy. One is whether Sharon and her companions actually saw "Born Innocent" or saw only advance TV "teaser" ads containing part of the rape scene.
The show provoked some 4,000 letters of protest to NBC. A few weeks after it was shown, the president of another network, James E. Duffy of ABC-TV, said in a speech that "the race for audience ratings too often blinds us to our basic responsibilites. . . . Yes, a program like 'Born Innocent' should be shown. But, no, it should not be shown at such an early hour when children more often than not control the dial.
Lewis plans to quote Duffy. But Abrams, questioning the credentials of ABC as "the industry arbiter with respect to scenes of violence," disagreed with Duffy and stressed that the executive was not talking about imitation of a crime.
In pre-trial proceedings, NBC's Abrams said, he will argue that "if there is not to be total First Amendemtn protection, the only exception is where a TV program advocates and is directed to, or produces, imminent lawless action." If the judge rules for Abrams, Lewis will have to prove that NBC engaged in incitement.
The network's witnesses will include NBC Board Chairman Julian Goodman, Dean Robert Brustein of Yale Drama School, and novelist William Styron. Abrams plans to show the jury "Born Innocent," which starred Linda "The Exorcist" Blair as the rape victim.
Lewis, author of a legal textbook whose publisher calls him "the nation's foremost authority on the trial of psychic injury cases," plans to summon psychologists and other experts. So does the network.