A state court judge yesterday set the stage for dismissal of the "Born Innocent" television violence case and for a new round of appeals in the child rape victim's $11 million damage suit against NBC.
In a possibly conclusive pretrial victory for the next network, Superior Court Judge Robert L. Dossee ruled that to win her suit, Oliva Niemi must prove to the jury that NBC intentionally had advocated rapes of little girls when it included in the two-hour TV film a vivid portrayal of four girls raping another girl, in a reformatory shower room, with a wood handle.
The ruling is likely to cause the jury trial to be put aside pending a new round of appeals.
"I'd have to be idiotic to try to present such a case," Olivia's lawyer, Marvin E. Lewis, told the court. "My pleading is civil accountability . . . for the foreseeable results" of broadcasting the rape scene during family viewing hours.
But, Lewis said, he believes - and would tell the jury - that NBC never had any intend to incite rapes.
Four hours later, with the network's assent, Lewis laid legal groundwork for appeal - expected to each the U.S. Supreme Court - by beginning an opening statement in which he accused NBC of negligence and recklessness.
At the conclusion of the opening statement, NBC lawyer Floyd Abrams said, he intended to ask Dossee for a directed verdict in the network's favor on the ground that Lewis has conceded that he neither believes nor could prove that the rape scene constituted "incitement" - speech unprotected by the First Amendment.
In the ruling, Dossee agreed with NBC that the controlling definition of incitement is the one adopted by the Supreme Court in 1969: "Advocacy . . . directed to inciting or producing imminent lawless action and . . . likely to incite or product such action."
Dossee said he would decided later whether to recognize "new exceptions" to the First Amendment. Lewis wants an exception for material such as the rape scene, if aired at times when large numbers of children are watching.
"I intend to continue the fight to see that the people get decent television," Lewis told a press conference.
Noting that NBC had justified the "Born Innocent" rape scene on the ground that it dramatized evil conditions in girls' reformatories, Lewis said that lesbian rapes occur in such institutions. But to establish that fact on TV, he said, "you don't have to show lesbian rape - I hope you don't. You can talk about the sewer without showing all the excrement in the sewer."
In earlier courtroom argument, Lewis said that by ordering him to argue the case on the issue of incitement under the 1969 definition, the judge was exceeding his authority, because his pleadings over a 3 1/2-year period always have relied on a different legal theory: that NBC is liable for civil damages because it knowingly created an undue risk of harm.
"It's not fair trial when a judge forces any litigant" to try a case on other pleadings, Lewis told reporters.
In a tense exchange in which Dossee warned Lewis not to argue with him or his rulings, the lawyer said he was relying on a ruling in which the California Supreme Court held that the First Amendment is not a shield for words or conduct causing injury or death.
That case involved a radio broadcast in which a station offered a cash prize to the first motorist to reach a certain spot. One motorist who was speeding to the site collided with another car, killing an occupant. The victim's survivors collected damages from the radio station.
Dossee said the facts in that case differ from those in the NBC case. Olivia was raped with a beer bottle - wielded by a 15-year-old girl accompanied by a boy and his two small sisters - four days after NBC aired "Born Innocent" on Sept. 10, 1974.Whether the assailants had seen the film is disputed.
The judge also replied on a state appeals court, which said last October, as he interpreted the opinion, that Olivia has a right to a jury trial - but only on the incitement issue. In April the U.S. Supreme Court let the ruling stand, enabling the current trial to start.
If Lewis wins a new appeal, the case probably will come to trial, before a new jury, several months from now. If NBC prevails, the case probably never will be tried by a jury.