"Born Innocent" case began its expected second trip to the Supreme Court yesterday, as Judge Robert L. Dossee was assigned to preside over a damage suit brought against a broadcaster by a child victim of a brutal crime similar to one portrayed on television.
After conferring in his chambers for nearly an hour with attorneys for the child and NBC, Dossee announced that selection of a jury will begin tomorrow.
NBC is being sued by 9-year-old Olivia Niemi, who was raped with a beer bottle in 1974, three days after the network drama "Born Innocent" depicted the rape of a girl with the handle of a plumber's helper.
In the interim, the Superior Court judge will hear arguments on preliminary motions that may determine whether the case will become a constitutional milestone in the enduring national controversy over the effects of TV violence.
For NBC and its local affiliate, attorneys Flody Abrams and James J. Brosnahan said they hope to persuade Dossee that he lacks jurisdiction to try the case.
If control of the content of program is permissible at all under the First Amendment, it is a control that only the Federal Communications Commission, not the courts, can exercise, Abrams told reporters.
He said he will rely on the month-old Supreme Court decision that the First Amendment did not prevent the commission from reprimanding a New York City radio station that, in an early afternoon program when children were in the audience, had broadcast seven words crudely describing excretory and sexual organs and activities.
In contrast, Olivia's attorney, Marvin E. Lewis, is asking Dossee to forbid NBC from invoking the First Amendment before the jury.
"This is a negligence case," Lewis told reporters. To term it a freedom of expression case is "like saying that all motion picture theaters would have to close if they couldn't show pornographic movies," he said. Claiming psychic injuries to Olivia, he seeks $11 million in actual and punitive damages.
The opposing characterizations of the case - First Amendment vs. negligence - have divided judges from the start.
Two years ago another Superior Court judge, John A. Ertola, dismissed Olivia's suit after viewing the two-hour film, calling it "fully protected by the First Amendment."
Saying it was pointless to let the case to to a jury, Ertola wrote, "The state of California is not about to begin using negligence as a vehicle to freeze the creative arts." Even if the facts as alleged by Olivia are true, "the law provides no remedy," he said.
Last October, however, a state appellate court ruled that the California constitution gave Olivia the right "to have all fact issues in the case determined by a jury."
But, the court said, it is for a judge to decide this "question of law": whether "Born Innocent" fell within a category of expression unprotected by the First Amendment. One such category, the court said, is "incitement," which it defined as advocacy or encouragement of "violence and depraved acts."
A split state Supreme Court let the ruling stand. Without comment, so did the U.S. Supreme Court, thus opening the path to a trial.
NBC's Abrams said yesterday he is seeking to limit the legal issue to incitement. This, his opponent acknowledges, would put a heavy burden on him.
One reason is that "Born Innocent" received critical acclaim for its exploration of the runaways and other troubled children who end up in oppressive public institutions.
A New York Times reviewer, for example, called the film "a serious and carefully researched examination of a very real social phenomenon." When it "worked," he said, "it was powerful, provocative and terribly disturbing."
Another pretrial issue before Dossee is whether to admit as evidence some of the 4,000 protests to the network that were elicited by the film's brief rape scene, in which the star, naked from the waist up, was assaulted in a reformatory shower-room by four other girl inmates.
Three days later, Olivia, then 9, was assaulted by a 15-year-old girl, who was accompanied by a boy and his two sisters.