IT IS UNLIKELY that 13-year-old Olivia Niemi will win her $13-million suit against NBC, but one can sympathize with her and with her family nevertheless. Miss Niemi was assaulted four years ago by teenagers on a San Francisco beach. The method of assault was almost an exact reenactment of a scene in a television drama, "Born Innocent," shown by NBC four days earlier - in which a young girl was assaulted with a plunger by inmates of a reformatory. Miss Niemi and her attorney contend that she never would have been assaulted had that scene not been shown. That may be so. At the moment there is some question whether the case will even come to trial; but if it does, and if the trial proves that Miss Niemi's attackers did in fact watch "Born Innocent" - something yet to be proved - it is perfectly reasonable to assume that the fictional presentation served as the basis for the real-life crime. Therefore, it is also reasonable to share some of Miss Niemi's frustration.
To say that, however, is not to say that Miss Niemi ought to win her case. Judge Robert Dossee has ruled that the trial must be limited to the question of whether or not "Born Innocent" actually "incited" Miss Niemi's attackers. He has interpreted incitment to mean advocacy, as the Supreme Court has said it should be interpreted. Therefore, one would have to believe that NBC advocated the commission of the crime - a situation as unlikely as it would be impossible to prove.
Yet even if Judge Dossee's interpretation of incitement had come closer to negligence or recklessness, as Miss Niemi's attorney has contended all along, Miss Niemi could not, and should not, prevail. If NBC were to be found culpable for indirectly inciting a crime through a dramatic presentation, in the future no scenes involving violence would ever be shown on television - in a play, or on the news, for that matter - for fear of prosecution. And television alone would not be affected. A violent scene in a book, or in a anecdote, would be equally liable.
At issue in this case is the influence of an idea: how far does it goes and how it takes shape. There can be no doubt that the intention in showing the rape scene in "Born Innocent" was to cause revulsion and condemnation - the opposite of the effect it allegedly had on Miss Niemi's attackers. NBC would be pleased to take credit for the condemnation, but denies responsibility for the rape. In fact, it has responsibility for neither reaction, since it cannot account, nor be held to account, for the ways "Born Innocent" was received, much less acted upon.
Yet one still feels a sense of dissatisfaction here, as the true justice of Miss Niemi's case seems to hang somewhere between her suffering and the rightness and necessity of the First Amendment. In deciding to put on a serious work like "Born Innocent," NBC took a step up in TV programming, but there is no question that the network showed terribel judgement in scheduling the play at 8 p.m. As in the Ronney Zamora murder case a year ago, the first, and rather easy, thing we do in such matters is to assert that responsibilities for crimes reside with individuals. But no one who watched that rape scene would deny that it was capable of creating a disturbing impression. "Born Innocent" should have been shown much later in the evening, and with plenty of cautions to the viewer.
NBC will probably win the case eventually, but it and the other networks will win little else if they merely whoop it up and do not take warning from this experience. If in the future commercial television wishes to shed its customary insipidity and to start showing more programs that deal with life seriously, and brutally, then it must also show common sense as to when and how much programs are put on. This idea of individual responsibility for one's actions cut several ways.