Opposition — National Broadcasting Co. v. Niemi
Supreme Court brief1978
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Text
No. 77 -1308
NATIONAL BROADCASTING CoMPANY, INC., and
CHRONICLE PUBLISHING Co.,
Petitioners,
VS.
Oxrv1a NiEMI, a Minor, by and through her
Guardian ad Litem, Valeria Pope Niemi,
Respondent.
REPLY TO PETITION FOR WRIT OF CERTIORARI IN THE
SUPREME COURT OF THE UNITED STATES
Marvin E, LEwIis,
Lewis, Roupa & LEwis,
690 Market Street, Penthouse,
San Francisco, California 94104,
Telephone: (415) 421-7616,
Attorneys for Respondent.
PERNAU - WALSH PRINTING CO. - 562 MISSION STREET - SAN FRANCISCO, CA 94108
A BOWNE COMPANY
Panik ee
ee eee ee
Subject Index
Page
_ Questions presented ..........ce cee eeeeeeeeeeeeeeeeeeces 1
I: GE TD GD ok nbn 00 k9 04 0kss hc deesdércacneens 2
PU ID ; £56 55 0 ddundndedesonsdean€eennes esnse 6
ee I ID oo owe 6 ce ddaeedcducesenessecesudiesst 8
There is no reason for granting the writ ................. 8
BD, oo. nn. 0k nan ceed i insneecidies conssdecsctdensees 10
I
There is no defense of the First Amendment of the
United States Constitution to a negligence action .... 10
II.
Even assuming that the First Amendment is a defense
to a tort caused by words as well as conduct it is
Cad. Gh EE GD inc kv doknn vkscdaededintdica 24
A. There is no Louis IV absolutism concerning the
First Amendment defense ...............eeeee: 24
B. If the trier of fact in the instant case finds negli-
gence there will be no threat to the vigor of
journalistic and creative endeavors ............ 25
C. It has always been the law that every society has
a legitimate interest in protecting the health of
its children and when this interest clashes with
the First Amendment, the protection of the health
of the child predominates. (See Vol. 1, Modern
Constitutional Law, Antieau, pages 57 and 58
with decisions of the United States Supreme
a ere eee 29
D. Assuming that the First Amendment defense
applies, it does not mean Respondent should be
deprived of a trial. Disputes over constitutional
questions and the existence of constitutional facts
are no exception to the Seventh Amendment .... 46
E. Films and television are not entitled to the same
constitutional protections afforded newspapers or
other written publications .................e00. 53
F. Even protected speech is subject to a balancing
OE on cticice desi cdnieeddcdweteencsanbadduiees 59
I ks csesndvecdccccccctdaedebeds des sesadecakeaes 65
Table of Authorities Cited
Cases Pages
Akins v. County of Sonoma, 67 C.2d 185 ................ 30
Alioto v. Cowles Communications, Ine., 519 F.2d 777 (9th
Cir. 1975), eert. denied, 423 U.S. 930 (1976) .......... 50
Banzhaf v. FCC, 405 F.2d 1082 (D.C. Cir. 1968), eert.
ee. Be Ck. ee Lee) kvc cess cocccvesvovessesss eee
Bates v. State Bar of Arizona (...... UA cine aieaiis 53 L.Ed.
mail PE cn 6accseeeuceatdvaseetaveesnt Se
Beard vy. Alexandria, 341 U.S. 622, 95 L.Ed. 1233 ........ 28
Bigelow v. Virginia (1975) 421 U.S. 809, 44 L.Ed.2d 600,
CS lee eee eee eee Re eee ee eae 23
Brandenberg v. Ohio, 395 U.S. 444 .......... ccc cece ee ees 25
Bridges v. State of California, 86 L.Ed. 172 ............ 31
Buckley v. American Fed. of Television & Radio Artists,
8 eB Se eT eer eT Tr rT ee 60, 62, 64
Butler v. Michigan, 352 U.S. 380 (1957) .............06. 44
Carson v. Allied News Co., 529 F.2d 206 (7th Cir. 1976) 50
Columbia Broadeasting Sys. v. Demoeratie Comm., 412 U.S.
Pe GE peo ce we wesuce bebe hu cabo beds 0666646660005 57
Conners v. Riley, 395 F.Supp. 1244 (W.D. Ark. 1975) . .37, 48, 61
Cox v. New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85
i CEE ves ce eb eeu eWhee - 66606600CR NS tCKONS 60, 62
Danskin v. S. D. Unified School District, 28 C.2d 536 .... 31
Davis ». Macon Telegraph Publishing Co., 92 S.E.2d 619 .. 30
ee i Be, GE Ge Me 6.66 cree or cckeuscvetensccces 14
Egner vy. Texas City Independent School District, 338 F.
GD dubs nadebvesseesseepavescansesevitesencses 37
Erznoznik v. Jacksonville, 422 U.S. 205 (1975) ....40, 41, 45, 46
First Unitarian Chureh of Los Angeles vy. Los Angeles
Ce: Se D6 6 oe Sckccdcanesecdstcessceveces 30
Jertz v. Robert Welch, Inec., 418 U.S. 323 (1974) ........ 63
Gill v. Curtis Publishing Company, 38 C.2d 277 ....... 9, 20, 25
Ginsberg v. United States, 390 U.S. 629 ........... 35, 42, 43, 44
Gordon vy. Random House, Ine., 486 F.2d 1356 (3d Cir.
1973), vacated on other grounds, 419 U.S. 812 (1974) .. 53
oe
OSes tbe
Teiee ewes o
TasLe or AuTHOoRITIES CITED ili
Guam Fed’n of Teachers, Local 1581, A.F.T. v. Ysrael,
492 F.2d 488 (9th Cir.), cert. denied, 419 U.S. 872
SRNOED cuduvecebeseeetickecnsebsceeesesssneneeuluas 49, 50
Hotehner vy. Castillo-Puche, 404 F.Supp. 1041 (S.D.NLY.
1975), rev’d on other grounds, 551 F.2d 910 (2d Cir.
UR: 00odueoeeuneuuunecnthead chbeadaesssaleseees 51
Hughes v. Superior Court of California, 339 U.S. 460, 94
PAM UEP ocdonedbcsunbandénseensusdesecedencsaeucone 30
Interstate Cireuit v. Dallas, 390 U.S. 676 (1968) ......... 42, 61
Joseph Burstyn, Ine. v. Wilson, 343 U.S. 495 (1952) ...54, 55, 56
Kaplan v. Caley, 413 U.S. 115, 37 L.Ed.2d 492 .......... 32
Kingsley Pictures Corp. v. Regents of New York, 360 U.S.
See SEE kb6o+dantedoducedceneeendiencadaidanaueds 54
Koppinger v. City of Fairmont, 248 N.W.2d 708 ......... 38
Miller v. California, 413 U.S. 15, 37 L.Ed.2d 419 ........ 35, 36
Mt. Mansfield Television, Inc. v. FCC, 442 F.2d 470 (2d
eG - SEE aes rishwsvenkcduddacedeueupendexcadenees 58
National Lampoon, Ine. v. American Broadeasting Co., 376
ae Hee CS. ED Nuk Kcvecsevenestieesaee 57
New York Times Co. v. Sullivan (1964) 376 U.S. 254, 11
ES Sccvebavadedesanasesessusectaas 19, 20, 46, 47, 48
Pacifica Foundation v. PCC, 556 F.2d 9 (D.C. Cir. 1977)
ETT TT Te ee ee ee eee rer 40, 45, 46
Paris Adult Theater v. Slaton, 413 U.S. 49, 37 L.Ed.2d 446 31
People v. Garcia, 37 C.A.2d Supp. 753 ............. 0c eee 31
People v. Kahan, 206 N.E.2d 333 ........cccccccccsccccs 37
People v. Kitsis, 77 C.A.3d Supp. 1 (Cal. Rptr.) decided
PEPE Cue unuhies on66bdeeectntce viveebeeecabbednees 23
President’s Council District 25 v. Community School Board
ek es We Ee preter s nn dancdcwawndeus heseadeus 14
Prince v. Massachusetts, 321 U.S. 158 (1943) ............ 32, 42
Quarterman v. Byrd, 453 F.2d 54 (4th Cir. 1971) ....... 36, 43
Red Lion Broadeasting Co. v. FCC, 395 U.S. 367 (1969) .. 57
Redrup v. New York, 386 U.S. 767, 18 L.Ed.2d 515 ...... 28, 31
iv TaBLeE OF AUTHORITIES CITED
Pages
Rodriguez v. Bethlehem Steel Corp., 12 C.3d 382 ......... 14
Rosenbloom v. Metro Media, 403 U.S. 29 ................ 17, 47
Roth v. United States, 354 U.S. 476, 1 L.Ed.2d 1498 ...... 31
Rowan v. Post Office Department, 25 L.Ed.2d 763 ........ 33
Russo v. Central School District No. 1, Town of Rush,
eee Wes, Ge ae GD GROUND 6 oc. ckcdceccdacccdecsds 37
Southwestern Promotional Limited v. Conrad, 420 U.S. 546
DE Cckadganvackebuevidecssbevedenaensakcseekeuun 54
Sullivan v. Houston Independent School District, 333 F.
PE EE 64444 5b 4560 decdnveteeeencubaseebussenkibs 37
Taggert v. Wadleigh-Maurice, Ltd., 489 F.2d 434 (3rd Cir.
1973), cert. denied, 417 U.S. 937 (1974) ..............51, 52
Tarasoff v. Regents of the University of California, 17 C.3d
Dy <cdnccedddeodeeatnnanekacaedasentee desk asaesewts« 14
Thornhill v. Alabama, 310 U.S. 88, 84 L.Ed. 1093 ........ 30
Time, Inc. v. Pape, 401 U.S. 279 (1971) ................ 47
Times Film Corporation v. Chicago, 361 U.S. 48 ......... 53
Tinker v. Des Moines School Dist., 393 U.S. 503 (1969) .. 42
Trachtman v. Anker, 426 F.Supp. 198 (S.D. N.Y. 1976)
csauaduden idle ddeneeekenewhegesceteéeedchavdacas 38, 39, 42
United States v. O’Brien (1968) 391 U.S. 367, 20 L.Ed.2d
ek ee chien d cca cc weubecesnuaeeusdsassv ae 22
United States v. Pellegrino, 467 F.2d 41 (9th Cir. 1972) ..32, 43
Va. Pharmacy Bd. v. Va. Consumer Council (1976) 425
U.S. 748, 48 L.Ed.2d 346, 96 S.Ct. 1817 ............... 22
Virgil v. Time, Ine., 527 F.2d 1122 (9th Cir. 1975), cert.
Ss Ge Te CUD hW wee dnccccccsddndencecas 50
Weirum v. RKO General, Ine. (1975) 15 Cal.3d 40 ......
Jénle dunes ee he skanbiae bebe eekee cones 10, 11, 12, 14, 15, 16
Winters v. People of the State of New York, 330 U.S. 507,
a ee gs 31
Writers Guild of America West v. Federal Communications
Commission, 423 F.Supp. 1064 ................ 3, 15, 60, 64, 65
Young v. American Mini Theaters, 49 L.Ed.2d 310 ....... 33
Young v. American Mini Theaters, 427 U.S. 50 ..........
Ae NS EA DELTA IEE 40, 41, 44, 45, 46, 61
TABLE or AuTHoriITrEs CITED Vv
Pages
Zacchini v. Seripps-Howard Pub. Co., 45 U.S.L.W. 4954
eh: Ge Sy SE “Sic cbncn re deedeaeeadeens 19, 62, 63, 64
Constitutions
United States Constitution:
ee. I onda dptacnndseotenbansnéewesens passim
SE. MU os cnccccncucnddusdeusasceda 46, 48, 51
WPOmmOCeE BeROMGES onc ccccccccccccccccevccecs 1, 2,19
Texts
ee Se Bas Ge ED bcd bdcécedonscacscccecece 37
1 Modern Constitutional Law, Antieau, pp. 57, 58 ........ 29
Witkin, California Procedure, Trial (2d Ed. 1971) §73, p.
Se "cag Kcdedcdnndeenntdasendkddcnencteasneebeaadesds 7
alll
Iu the Supreme Court
OF THE
United States
OcToBER TERM, 1977
No. 77-1308
NATIONAL BROADCASTING CoMPANY, INC., and
CHRONICLE PUBLISHING Co.,
Petitioners,
Vs.
Oxivia NIEMI, a Minor, by and through her
Guardian ad Litem, Valeria Pope Niemi,
Respondent.
REPLY TO PETITION FOR WRIT OF CERTIORARI IN THE
SUPREME COURT OF THE UNITED STATES
The Respondent, Olivia Niemi, a minor by and
through her Guardian ad Litem respectfully prays that
this Honorable Court deny a writ of certiorari.
QUESTIONS PRESENTED
1. Do the First and Fourteenth Amendments to
the United States Constitution constitute a defense
to an action based on negligence in the use of words
and conduct proximately causing harm and violating
a legal duty?
HNL CTEM
2
2. Assuming that the First and Fourteenth Amend-
ments to the United States Constitution constitute
a defense to an action of negligence should this be an
absolute defense to deprive the plaintiff of the right to
present her case before a jury?
STATEMENT OF THE CASE
That on September 10, 1974 NBC televised “Born
Innocent” to a national audience.
In the early segment of the television showing a
young girl is so graphically shown being raped by
other young girls with a plumber’s helper so as to
cause hundreds of viewers to believe that actual pen-
etration took place.
Congressional records will show that NBC was
warned in a congressional hearing concerning the dan-
ger of violence as portrayed by television on young
minds and promised that they would exercise their
duty in showing restraint in the types of scenes por-
trayed.
That they employed the services of a censor for
this very purpose.
That they had in their library books that had been
written by psychiatrists and professional experts on
the dangers of televising certain scenes that would
graphically show violence and warning them of the
danger that such scenes could cause to the minds of
minors.
were mee
3
James E. Duffy, President of ABC television net-
work confessed in a speech he gave on October 23,
1974 that audience ratings blind television networks
to their basic responsibility and in serving themselves,
they often do great dis-service to their viewers. Mr.
Duffy then pointed out that programs such as “Born
Innocent” should not have been shown at such an
early hour when children more often than not control
the dial.
That NBC network recognized that at the hours of
7:30 p.m. and 8:00 p.m. a large number of children
watch television and termed said period of time: “the
family hour”.
In the case of Writers Guild of America West v.
Federal Communications Commission, 423 F.Supp.
1064, Petitioner National Broadcasting Company, Inc.
prayed to the United States District Court that a
family hour shown from 7:00 p.m. to 9:00 p.m. dur-
ing which time no sex or violence would be shown
should be continued. The “Family Hour” was insti-
tuted because of the broadcast of “Born Innocent”.
The trial judge in the case of Writers Guild of
America West v. Federal Communications Commis-
sion, supra, made a finding that broadcasters were
more interested in dollars than the public interest and
used violence as a tool to hike program ratings if left
free to program in their own discretion. The Court
also found that the depiction of violence on television
had been a continuing source of congressional and
publie concern for more than two decades. The Court
further found that the United States Senate Appro-
4
priations Committee joined with the United States
House of Representatives to urge the proper agency
to exercise its power in the area of television program
violence particularly as to its effect on children. The
Court further recognized in the opinion that there had
been public outery surrounding scenes of violence par-
ticularly the televising of the movie, “Born Inno-
cent”.
That Petitioners, National Broadcasting Company,
Ine. and Chronicle Publishing Company operating a
local station in San Francisco broadeast said picture
“Born Innocent” at 7:30 p.m. in all of the midwestern
states and in the western states at 8:00 p.m. on Sep-
tember 10, 1974.
That before said program was aired, fifteen pro-
posed commercial sponsors after seeing the preview
of the show refused to permit their advertising to be
used in connection with said production.
That the Petitioners deliberately used national ad-
vertising to induce a youthful audience to watch the
program.
That on September 9, 1974 at the same hour that
“Born Innocent” was televised Petitioners televised
another show called “Born Free” which would be
particularly suited for children viewers and concerned
itself mainly with the lives of lion cubs.
That the advertisement of “Born Free” and “Born
Innocent” had the same makeup and occupied the
same place in the two pages of TV Guide and would
cause children and their parents to believe that they
AG OT wa Ate
bie wR eet yr ee
5
were again seeing “Born Free” on the following night
if they looked at the advertisement quickly.
That the advertisement concerning “Born Innocent”
featured the age of the star of said production namely,
Linda Blair who had starred in the movie, “The Ex-
orcist”. This advertisement featured the fact that
Linda Blair was fifteen years of age. This again was
to attract a youthful audience.
That proof that Petitioners believed that said ad-
vertisement would attract a youthful audience was
shown by their endeavors to unsuccessfully attempt
to secure the Walt Disney Productions, Ine. to be one
of the sponsors of the program “Born Innocent”.
That the crime of inserting an object in the vagina
of a female juvenile by other female juveniles is prac-
tically unheard of and is a rarity.
That four days after the televising of “Born Inno-
cent” young girls who had seen said rape scene de-
cided to imitate said unusual act and attacked the
eight-year old Respondent by inserting a beer bottle
in her vagina.
That it was discovered that for over one year after
“Born Innocent” was televised girls who had been
sent to a juvenile home in Tacoma, Washington were
subjected by inmates who had likewise seen the show
to an initiation called “Born Innocent Initiation”
where physical objects were also inserted in their va-
ginas,
6
PROCEEDINGS BELOW
The theory of liability set forth in Respondent’s
complaint was not based on censorship or obscenity
nor does it call for any actions of restraint or prohi-
bition or- injunctive relief. It sets forth actions of
willfulness and negligence and alleges a legal duty and
proximate cause and injury and then prays for dam-
ages as the prayer in any negligence action would do.
The pleading is limited to the facts of the instant case
and does not attempt to place a restraint on the tele-
vision industry. It merely asks damages under the
facts of the instant case should legal liability be shown
as a matter of law and proximate cause, negligence
and damages be proven to the satisfaction of the trier
of fact by a preponderance of the evidence.
Petitioners moved for summary judgment in the
Superior Court and did annex the film of “Born In-
nocent” to the moving papers [R.T. 13]. There is
nothing in the record which discloses that the trial
judge who denied the motion for summary judgment
did not view the film. Even if he did not view the
film, under the circumstances it would be immaterial
inasmuch as he in effect held that there were ques-
tions of fact to be decided. It would have been use-
less for the trial court to view the film without the
aid of an expert to interpret it. It would have been
the same if he had examined an x-ray without the aid
of the testimony of doctors.
Petitioners then filed a Writ of Mandamus before
the Intermediate Appellate Court of the State of Cal-
ifornia on August 31, 1976. It is not true that said
ee
i
:
5
7
Court did not affirm the denial of the summary judg-
ment motion. The Court of Appeal denied the Writ
of Mandamus for a summary judgment. The Court of
Appeal stated in the opinion that they did not deter-
mine the merits of the case as there was no need for
them to do so.
Petitioners then failed to file a Petition for Hearing
before the Supreme Court of the State of California
and thus the denial of their motion for summary
judgment became final and it was imperative that the
trial judge impanel a jury and allow the trial to pro-
ceed.
The trial court could not have heard a renewed mo-
tion for summary judgment under the California stat-
ute inasmuch as there were no new facts and consid-
eration of the question had already been decided
against them by the California Appellate Court which
opinion had become final and which mandated the
trial judge to proceed with the jury trial. [Refer to
R.T. p. 3, line 17 through p. 4, line 11; R.T. p. 5, lines
1-14; R.T. p. 11, lines 9-12; R.T. p. 12, lines 26-28;
p. 13, lines 1-4; R.T. p. 19, lines 17-27; R.T. p. 20,
lines 14-28; R.T. p. 21, line 1; R.T. p. 32, lines 2-7;
R.T. p. 32, lines 23-24; R.T. p. 34, lines 2-20; R.T.
p. 60, line 12; R.T. p. 86, lines 16-20].
The Court of Appeal correctly stated in its opinion
that the trial judge acted in excess of his jurisdic-
tion [Witkin, California Procedure (2d Ed. 1971)
Trial §73 p. 2908]. (See p. 6a of Appendix A to Pe-
tition for Writ).
8
The trial judge made a Finding of Fact and Con-
clusions of Law which he was not permitted to do in a
jury trial.
THE STAY APPLICATIONS
Petitioners have applied to the Court of Appeal and
to the Supreme Court of the State of California and
to this Honorable Court for a stay of the trial and
each of said Courts have denied said stay.
THERE IS NO REASON FOR GRANTING THE WRIT
It is not true that Respondent has sued Petitioners
upon a tort of “initiation”.
Respondent has sued on many acts of willfulness
and negligence which have been outlined above and
which constitute a breach of their legal duty to the
public in using the public airwaves. These acts of
willfulness and negligence which constitute the tort
were caused by imitation by children who are not
parties to this action.
It is not true as Petitioners contend that Respond-
ent claims that those who create and exhibit dramatic
works are liable for injury if they cause imitation
of any aspect of the expression.
Petitioners have contended before all of the pre-
vious courts and in their petition to this Honorable
Court that if Respondent is successful, no drama can
be shown that involves a crime and no criminal event
ean be given to the public on the news.
en te OO PaO ates Po ebm,
PE Di ee SAP aNE ooh
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9
We repeat that this case based upon tort should be
decided upon its own particular facts.
The same type of argument was advanced by the
media when they first opposed the tort of “invasion of
privacy”.
In the case of Gill v. Curtis Publishing Company,
38 C.2d 277 at page 278 the California Supreme Court
states that the dissemination of news and information
consistent with the democratic processes under the
Constitution guarantees of freedom of speech and of
the press must be balanced against the pubuec interest
in the consideration of the First Amendment of the
United States Constitution. The Court then states:
“It has been objected that a recognition of the
right of privacy would open up a vast field of liti-
gation, some of it bordering on the absurd. But
courts recognizing the right deny the validity of
this objection. According to the latter view, the
fact that a recognition of the right would involve
many cases near the border line, and would pre-
sent perplexing questions, is not a good ground
for denying the existence of such right or refus-
ing to give relief in a case where it is clearly
shown that a legal wrong has been done.”
The trial of this case would depend upon particular
facts of this case and will in no way freeze the cre-
ative arts.
10
ARGUMENT
I.
THERE IS NO DEFENSE OF THE FIRST AMENDMENT OF THE
UNITED STATES CONSTITUTION TO A NEGLIGENCE
ACTION.
The California Court of Appeal in its opinion states
as follows:
“appellant having been deprived of her consti-
tutional right to present before a jury evidence
which she contends will show that, despite First
Amendment protections, the showing of the film,
‘Born Innocent,’ resulted in actionable injuries.”
(Cf. Weirum v. RKO General, Ine. (1975) 15
Cal.3d 40.)
The Superior Court of California in Weitrum v.
RKO General, Inc., 15 C.3d 40, held that there is no
defense to the First Amendment of the United States
Constitution in a negligence action.
Petitioners attempt to distinguish Wetrum v. RKO,
supra, upon the ground that the California Supreme
Court decided the case under the incitement exception
to the First Amendment.
It is their contention that in that case the radio sta-
tion actually urged motorists to speed and drive care-
lessly through crowded streets and specifically urged
motorists to be heedless of the lives and limbs of other
occupants of motor cars who may be in the near vi-
cinity.
Having reached this conclusion, they then claim
that the Supreme Court of California recognized that
such facts brought the Weirum case directly within
Ta ES Sk Am eh de
ie ieiie site se >. Weld
11
the incitement exception of the First Amendment and,
therefore, Wetrum cannot be cited to support the law
that the First Amendment is not a defense when
words cause physical injuries.
Where in the Weitrwm opinion does it appear that
the broadcaster told the motorists at what speed to
drive their cars?
The first part of the decision is devoted to the de-
termination of whether there was a duty owed by the
broadeasters to an innocent member of the public by
the negligent utterance of words.
The California Supreme Court in discussing the
question of duty was only considering whether there
was legal duty and not whether there was an excep-
tion of incitement to the First Amendment in the
case.
While an attempt is being made to distinguish the
act of negligence in the method of broadcasting in the
Weirum case from the alleged acts of negligence in
the instant case the distinction would be only one of
foreseeability which as stated by the said Supreme
Court is a question of fact for the jury. Furthermore
foreseeability is conceded by Respondents.
If as a matter of law there was no legal duty by the
broadeaster and a member of the public was killed
because of the independent act of someone who heard
the broadcast, then the plaintiff could never have won
in the Wetrum case.
The Weirwm case was not decided on the exception
of incitement to the defense of the First Amendment.
12
Thus, the Supreme Court of California has estab-
lished in the Weirum case that there is a legal duty
owed by one who uses the airwaves to carry words or
pictures not to injure another.
Once that duty has been established, then the ques-
tion of proximate cause and foreseeability, which are
questions of fact, must then be determined.
At page 47 the Supreme Court states:
“Reckless conduct by youthful contestants stimu-
lated by defendant’s broadcast constituted the
hazard to which decedent was exposed.”
The reckless conduct was a question of fact.
Whether the reckless conduct in this ease was stim-
wlated by the defendants’ broadcast was likewise a
question of fact.
The trial judge in this case made a Finding Of
Fact. That Finding Of Fact was that the picture
“Born Innocent”, televised by Petitioners, did not
stimulate the wrongful acts of the girls who artifi-
cially raped the appellant.
The issue of fact should never have been decided by
the judge, and particularly before any testimony, in-
cluding experts’ testimony, was even permitted to be
introduced in evidence.
Again at page 47, the Supreme Court states:
“Liability is imposed only if the risk of harm re-
sulting from the act is deemed unreasonable—-
i.e., tf the gravity and likelihood of the danger
outweighed the utility of the conduct involved.
(See Prosser, Law of Torts, 4 Ed. 1971, pp. 146-
149)”
13
It is interesting to note that the California Medical
Association has involved itself in this ease and filed a
brief amicus curiae. This brief advises the Court that
the doctors of this State believe that this type of
broadcast, under the circumstances of this case, caused
children to perform the wrongful act and the doctors
further believe that such conduct does stimulate vio-
lence by minors.
Conceding this to be true for the purpose of argu-
ment, this certainly involves serious danger of a very
grave nature. This charge made by the doctors of this
State is based on expert opinion. Regardless of this
warning of grave danger by the Medical Association
of this State can it be said there is no duty?
Now let us look at the utility of the conduct in-
volved.
Does not the prevention of injury or death to a per-
son greatly outweigh the conduct that is involved in
this case, which is to permit a large audience of
youths to view at an early evening hour the simulated
rape by a plumber’s helper into the vagina of a 15-
year-old child actress?
As so well stated by Your Honorable Court in the
ease of Young v. American Mini Theaters, 49 L.Ed.
2d 310, decided in June, 1976, at page 325:
“Few of us would march our sons and daughters
off to war to preserve the citizens’ right to see
specified sexual activities exhibited in the theaters
of our choice.”
To paraphrase this language of Your Honorable
Court, few of our parents would be willing to see
| F
14
their beys march off to war to enfore> the right for
children at either 7:00 p.m. or 8:00 p.n.. at night dur-
ing the family hour to be able to see an act of per-
version simulated upon the body of a 15-year-old girl.
In President’s C-uncil District 25 v. Community
School Board No. 25, 457 F.2d 289, the Court held that
public libraries did not violate the First Amendment
by refusing to make all hooks which they considered
had pornographic material available to minors.
The Supreme Court of California stated that they
were not persuaded that the imposition of a duty in
the Wetrum case would lead to unwarranted exten-
sions of liability.
The finding of duty in this case will likewise not
lead to the censorship of all plays and books and
newspapers as the briefs on the opposing side would
have the Court believe.
As in the Weitrum ease, the damages sought here
ean only be obtained if it is proven that the Respond-
ents committed a negligent or reckless act and that
harm was foreseeable and that harm was proximately
caused.
The Supreme Court of California has stated in the
ease of Tarasoff v. Regents of the University of Cali-
fornia, 17 C.3d 425, that the most important of the
considerations in establishing duty is foreseeability
and cites with approval the case of Wetrum v. RKO
General, Inc., supra, and Dillon v. Legg, 68 C.2d 728,
738, and Rodriguez v. Bethlehem Steel Corp., 12 C.3d
382, 399.
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15
In the ease of Writers Guild of America West v.
Federal Communications Commission, 423 F.Supp.
1064, the Court states at page 1150:
“When broadcasters deviate from their own inde-
pendent determinations of what is in the public
interest, they violate their FIDUCIARY respon-
sibilities.” (Emphasis added)
Here the Federal District Court likewise recognized
the fiduciary responsibility of a television network to
the general public. Certainly where there is a fidu-
ciary responsibility, there is a legal duty.
After the California Supreme Court in Wetrum
had found under the tort of negligence that there was
duty and that the jury properly could find as a ques-
tion of fact foreseeahility this Court then turned to
the contention that the First Amendment was an ab-
solute defense.
There is only one paragraph of the entire decision
that deals with the applicability of the First Amend-
ment as a defense. That is the second paragraph of
the decision that appears on page 48 which reads as
follows:
“Defendant’s contention that the giveaway con-
test must he afforded the deference due society’s
interest in the First Amendment is clearly with-
out merit. The issue here is civil accountability
for the foreseeable results of a broadeast which
created an undue risk of harm to decedent. (7)
The First Amendment does not sanction the in-
fliction of phvsieal injury merely hecause achieved
by word, rather than act.”
16
If as Respondents contend Wetrwm is distinguish-
able because based on incitement which is an exception
to the First Amendment, then the California Supreme
Court would have stated that normally the First
Amendment would have been a defense in the Wetrum
ease but because of the exception of incitement, it did
not apply.
The Court clearly stated that deference to society’s
interest in the First Amendment is clearly without
merit where the issue of civil accountability for the
foreseeable result of a broadeast creates undue risk
of harm. The Court’s language also is crystal clear
that the First Amendment does not sanction the in-
fliction of physical injury merely because achieved
by word rather than act.
What greater proof of undue risk of harm is there
than the very fact that the California Medical Asso-
ciation has joined with appellant and has filed a
brief in this case setting forth the severe medical
effect on children by this particular broadcast?
Any attempt to distinguish the facts of the Wetrwm
ease from the facts in the instant case is meaningless
in the context of what the California Supreme Court
has stated with relation to a First Amendment de-
fense.
If the First Amendment cannot be a defense to the
infliction of physical injury achieved by word, then
what can be accomplished by attempting to compare
the facts of the Wetrum case with the facts in the
instant case ?
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17
For the purpose of this argument, Respondents
admit that the telecast inflicted physica) harm upon
the appellant.
The above admission squarely brings it within the
language of the Supreme Court which holds that
under such circumstances the First Amendment is not
a defense.
Whether those words were more provocative or
more inciting to action than those in the instant case
has nothing to do with the defense of the First
Amendment under the guidelines outlined by our
Supreme Court.
Once Petitioners admit, as they did, that their words
caused physical injury to another, the defense of the
First Amendment could not be urged and that ends
the matter.
Justice Harlan in the case of Rosenbloom v. Metro
Media, 403 U.S. 29, states at pages 323 and 324 of the
opinion as follows:
“T think we all agree on certain core purposes,
First, as a general matter, the States have a per-
fectly legitimate interest exercised in a variety of
ways in redressing and preventing careless con-
duct no matter who is responsible for it, that in-
flicts actual measurable injury upon individual
citizens. . . .”
And at pages 325 of said opinion:
“A business is not immune from paying damages
because it happens to be the media. THE MEDIA
HAS NO SPECIAL IMMUNITY FROM THE
GENERAL LAW OF NEGLIGENCE. THAT
18
DAMAGE HAS BEEN INFLICTED BY A
PICTURE RATHER THAN BY OTHER IN-
STRUMENTALITIES CANNOT INSULATE
IT FROM LIABILITY.” (Capitals ours)
“SO LONG AS THE EFFECT OF THE LAW
OF NEGLIGENCE IS SIMPLY TO MAKE
THE MEDIA PAY FOR HARM THEY HAVE
NEGLIGENTLY CAUSED TO THOSE TO
WHOM THEY OWE A DUTY, THE FIRST
AMENDMENT SHOULD NOT BE A DE-
FENSE.”
“Tf a network refused to pay its bills because
to do so would put it out of business, would the
First Amendment dictate that this be treated as a
defense ?”
“Tf an automobile carrying a newsman to the
scene of a history-making event ran over a pedes-
trian, should a verdict in favor of the pedestrian
be based upon generally applicable tort law prin-
ciples or must it be assessed against the probabil-
ity that it would deter broadcasters from news
gathering before it could pass muster under the
First Amendment ?”
“THE USUAL TORT RULE IS THAT ONCE
SOME FORESEEABLE INJURY HAS BEEN
INFLICTED, THE NEGLIGENT DEFEND-
ANT MUST COMPENSATE FOR ALL DAM-
AGES HE PROXIMATELY CAUSED IN
FACT, NO MATTER HOW PECULIAR THE
CIRCUMSTANCES OF THE PARTICULAR
PLAINTIFF INVOLVED. (Prosser, The Law
of Torts, Section 50 [3rd Ed.].”
“TT DOES NO VIOLENCE TO THE VALUE
OF FREEDOM OF SPEECH AND PRESS TO
19
IMPOSE A DUTY OF REASONABLE CARE
UPON THOSE WHO WOULD EXERCISE
THOSE FREEDOMS.” (Capitals ours)
The case of Zacchini v. Scripps-Howard Pub. Co.,
45 U.S.L.W. 4954, 4957 (U.S. June 28, 1977), was a
ease involving a suit to recover for the unauthorized
televising of a plaintiff’s circus act. The Court held
that the First nor the Fourteenth Amendment do not
immunize the media when they broadcast a performer
actor without his consent. At page 4958, it states:
“Petitioner does not seek to enjoin broadcast
of his performance; he simply wants to be paid
for it. Nor do we think that a state law damages
remedy against respondent would represent a spe-
cies of liability without fault contrary to the let-
ter or spirit of Gertz.”
So in the instant case, we do not seek to immunize
the media. We merely want to be paid for damages.
We do not seek to impose any prior restraint on the
media. We merely seek damages for a negligent and
reckless act that has already occurred by the improper
time, place and method of telecasting the production.
Petitioners have cited the case of New York Times
Co. v. Sullivan (1964) 376 U.S. 254, 11 L.Ed.2d 686,
for the legal proposition that the First Amendment
should apply in civil lawsuits between private parties
just the same as in criminal actions.
It was never the intention of Your Honorable Court
to hold that whenever words cause injuries that the
First Amendment is an absolute defense.
20
The very proof of this fact is that the New York
Times ease involved an Alabama statute which related
to the tort of libel.
While it is true that the tort of libel today is no
longer based upon strict liability but rather upon the
principle of negligence, yet the tort still exists.
The tort of invasion of privacy still exists.
Justice Carter in writing the opinion of the Court
in the case of John W. Gill v. The Curtis Publishing
Company, 38 Cal.2d 277, pointed out that while it is
true that the right of privacy does infringe upon the
absolute freedom of speech and of the press and it
also clashes with the interest of the publie in having
a free dissemination of news and information yet
these constitutional guaranties of freedom and speech
and of the press do not warrant the publication of
matter constituting an invasion of the right of privacy
any more than they give the right to defame a person.
Fraudulent representations of the intentional inflic-
tion of emotional distress by language or the wrongful
interference of a business contract involve speech and
yet in the balancing of interest, the innocent person
injured by these torts is entitled to redress.
Years ago this Honorable Court made famous the
distinction in freedom of speech cases with the ex-
ample of one who cries fire in a crowded theater.
The person who cries “fire” in a crowded theater
does not tell the people in the theater to block the en-
tries or jostle their fellow patrons or do anything
illegal.
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The use of the word “fire” instills fear and fear re-
sults in causing panic.
In the instant case, psychiatrists will testify that
just as the person who yelled “fire” may cause panic,
the type of scene that was shown in “Born Innocent”
may likewise stimulate injurious acts by minors.
The legal doctrine of “The Attractive Nuisance
Cases” came into being based upon the well known
principle that with children “monkey see, monkey do”.
The tort in the instant case was committed by both
words and actions.
The Petitioners did not do any imitating.
By their negligent actions it is alleged that they
caused someone other than a party to the action to
imitate and thus cause the psychic injury to the minor
plaintiff.
As Petitioners admit there was a warning given by
Petitioners preceding the showing of “Born Innocent”
in that parental discretion was advised because of the
nature of the production and that it might be harmful
to minors.
This warning could not have protected the Respond-
ent who is the innocent victim as she did not receive
her injury by viewing the televised picture.
On the other hand, this warning was an admission
by Petitioners that some parents might not want their
children to see this degenerate scene because it might
have a bad effect on their minds.
22
Whenever there is a compelling State interest in-
volved then there is a compelling interest of the
courts to limit it.
When speech and non-speech elements are combined
in the same course of conduct a sufficiently important
interest in regulating the non-speech element can jus-
tify incidental limitations on the First Amendment
freedoms.
The above principles of law were stated in the case
of United States v. O’Brien (1968) 391 U.S. 367
(20 L.Ed.2d 672, 88 S.Ct. 1673). In this opinion Your
Honorable Court stated:
“This court has held that when ‘speech’ and
‘non-speech’ elements are combined in the same
course of conduct a sufficiently important govern-
mental interest in regulating the non-speech ele-
ment can justify incidental limitations on First
Amendment freedoms. To characterize the quality
of the governmental interest which must appear,
the Court has employed a variety of descriptive
terms: compelling ; substantial; subordinating;
paramount; cogent; strong. Whatever imprecision
inheres in these terms, we think it clear that a
government regulation is sufficiently justified if it
is within the constitutional power of the Govern-
ment; if it furthers an important or substantial
governmental interest; if the governmental inter-
est is unrelated to the suppression of free expres-
sion; and if the incidental restriction on alleged
First Amendment freedoms is no greater than is
essential to the furtherance of that interest.” (See
Va. Pharmacy Bd. v. Va. Consumer Council
(1976) 425 U.S. 748 [48 L.Ed.2d 346, 96 S.Ct.
1817].)
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23
Your Honorable Court in Bates v. State Bar of
Arizona (.... U.S. pp. ._., ... 53 L.Ed. pp. ... ... 97
S.Ct. pp. 2701-2707) holds that the justifications of
the restriction of the price advertising by attorneys
of routine legal services is permissible. The Court,
however, pointed out that even though under the lim-
ited facts of this opinion in stating First Amendment
rights, a clear tenor of its opinion, including a specific
disclaimer of any intent to resolve the problems asso-
ciated with in-person solicitation, is that it would not
accord similar protection to in-person solicitation.
Again, Your Honorable Court in the case of Big-
elow v. Virginia (1975) 421 U.S. 809 (44 L.Ed.2d
600, 95 S.Ct, 2222) stated in effect that a communica-
tion that serves no discernible purpose other than the
attraction of clients is outside the scope of First
Ameudment protection.
Recently in the case of People v. Kitsis, 77 C.A.3d
Supp. 1 (Cal. Rptr.) decided 12/21/77, the Court held
that an attorney could not escape soliciting business
otherwise known as “ambulance chasing” by contend-
ing that he had freedom of speech under the First
Amendment.
The Court held that the First Amendment of the
Federal Constitution did not afford an attorney an
avenue of escape by claiming that he had the right of
free speech.
The Court held that the compelling State interest
was protection of its citizens from the probability of
fraud, deception and overreaching inherent in the
practice of “ambulance chasing”.
24
The compelling State interest involved in this case
which requires tort (negligence) liability is the com-
pensation for serious psychological injury proximately
caused to a child by the dissemination of a television
production during the family hour and by attracting
children to watch it by its type of advertising.
Tort liability is the compelling State interest to see
that an innocent victim of negligent or willful acts is
adequately compensated for the wrongdoing.
II.
EVEN ASSUMING THAT THE FIRST AMENDMENT IS A DE-
FENSE TO A TORT CAUSED BY WORDS AS WELL AS CON-
DUCT IT IS NOT AN ABSOLUTE DEFENSE.
A. There is no Louis IV absolutism concerning the First Amend-
ment Defense.
Your Honorable Court many years ago uttered the
famous quotation “One cannot yell fire in a crowded
theater”.
If, during oral argument before this Honorable
Court a spectator stood upon his seat and yelled out
his political beliefs he would either be immediately
rushed out of the chambers by the bailiff or most
likely arrested. Could he urge the defense of protec-
tion under the First Amendment?
Can one with a truck and loud speaker go through
a sleeping neighborhood at 1:00 a.m. proclaiming in
loud tones the Bill of Rights?
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25
Can pornographic movies be displayed at a kiddie’s
matinee in a motion picture theater?
There must always be a balancing of place and time
and conditions when the defense of the First Amend-
ment is considered.
Certainly calling out fire in a theater does not con-
stitute fighting words. The result of yelling fire in a
crowded theater might lead to a rush by the crowd to
the doors thus causing a loss of life and injuries. This
is merely injury and proximate cause rather than the
test of incitement under the case of Brandenberg v.
Ohio, 395 U.S. 444.
B. If the trier of fact in the instant case finds negligence there
will be no threat to the vigor of journalistic and creative
endeavors.
The California Supreme Court’s language in Gill v.
Curtis, 38 Cal.2d 277, which states that if the recogni-
tion of the right involves many cases near the border
line and presents perplexing questions this is not good
ground for denying protection of such rights where it
is clearly shown legal wrong has been done, applies
here.
In considering the First Amendment defense there
is always bound to be a certain clash of interest and
the Court must balance the public interest.
The psychiatrists and psychologists and experts in
the trial will testify that this particular scene was dif-
ferent than the sword stabbing in Hamlet or the re-
lating of a rape or murder on the 6:00 p.m. news.
How often do we hear that girls insert foreign ob-
jects into the vaginas of other girls?
26
The girls that were portrayed in this scene were
modern day girls and in surroundings that were sim-
ilar and familiar to the children viewers.
The experts will testify that because of this these
children could place themselves in the scene and be-
come emotionally involved. Likewise there is the med-
ical likelihood that some of these children would want
to attempt to get the thrill out of actually experiment-
ing with this unusual type of act.
These professors and experts have been preaching
this message to the broadcasters for years and it has
fallen on deaf ears.
This case proves conclusively that the doctors and
experts were correct because the children in this case
confessed as to their motive in imitating the act and
further the very fact that such an unusual and bizarre
act was repeated only four days after it was televised
is positive proof in itself.
Thus this case must be looked at by itself and on its
own facts just as any other negligence case is exam-
ined.
If two cars hit at an intersection under certain
circumstances, one would not expect the Court to be
comparing with what might happen to the impact of
different types of cars hitting in different intersec-
tions at different times and under different circum-
stances. There are acts of negligence in this case that
would apply to this case and not to others.
Tn this case, we find commercial companies advising
respondents that they will not sponsor “Born Inno-
cent” because of this violent scene.
15
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27
We will prove that Petitioners put this particular
picture on at this particular time for solely commer-
cial reasons in order to meet competition from other
networks at this time slot. We will show that the
advertisements for this picture were designed to at-
tract children audiences despite the knowledge of the
officers of Petitioners that this type of scene should
not be shown at this particular hour.
When one is told that at 7:30 p.m. and 8:00 p.m. a
five minute scene is presented where one girl simu-
lates jabbing a plumber’s helper between the legs of a
15-year-old girl while other children watch and that
the scene is so graphic that hundreds of people write
letters that they thought they saw penetration it can
hardly be believed. It shocks by the mere telling that
such an act took place.
How can this compare with an actor placing the
point of his sword at the chest of another actor and
then the actor pretending to fall dead? Shakespeare
contains scenes that suggest adultery and fornication,
yet the stark portrayal in textbooks of minors of
such acts shown to children would not be acceptable.
As yet, news reporters have found no necessity to
plant their cameras in lovers’ lane so that they may
be on the 6:00 p.m. news to show to the public that
fornicating is actually going on in parked ears or
even on the 6:00 p.m. news showing actual rapes if
they were fortunate enough to have their cameras
ready at the time.
Petitioners concede that the First Amendment
would not go so far as to permit pornographic movies
28
to be shown at a Saturday afternoon kiddies’ per-
formance even though adults may see them. Why not
if there is to be an unlimited defense of the First
Amendment ?
Perhaps some adults would like to join the audience
with the children and watch these pornographic pic-
tures.
We submit that a jury is entitled to hear the medi-
cal professors advise them as to their opinion why
these minors committed this unusual crime after
seeing the scene in “Born Innocent” and give their
medical reasons for the same.
Freedom of speech or press does not mean that one
ean talk or write where, when and how one chooses
(see Beard v. Alexandria, 341 U.S. 622, 95 L.Ed.
1233).
Your Honorable Court has held that words, pic-
tures and printed matter that come through the mail
and harm minor members of the household are not
protected (see Redrup v. New York, 386 U.S. 767, 18
L.Ed.2d 515).
Respondent contends that a theater can protect
children from seeing a pornographic picture or
x-rated pictures because they know who comes into
a theater and have the power to bar them.
Do Petitioners seriously contend that because they
use the public airwaves that belong to the people that
they can come into homes and cause harm to minors
because they have no control over the homes into
which broadcasts enter?
29
How many children watch television when their
parents are not home? Many children have televi-
sions in the bedrooms. Must their parents patrol the
room of the child after he closes his door?
The Petitioners justify their position by stating
that they put on the screen a warning that this pic-
ture may be harmful to the minds of minors.
This very warning is like a red flag in front of a
bull to a child. If he was never going to watch the
show, he will certainly watch it when this warning
appears.
The Petitioners are very careful that they do not
affect the minds of adults by commercial ads of
lingerie. They would never think of having a live
model appear in bra and panty hose because it might
invite some man to rape. Thus bras and panty hose
float through the air free of any human form.
Petitioners would not permit a glass of beer to
touch the lips of the actor or even permit the sight of
hard liquor on their screen. Here they do not seem
worried about the First Amendment.
C. It has always been the law that every society has a legiti-
mate interest in protecting the health of its children and
when this interest clashes with the First Amendment, the
protection of the health of the child predominates. (See Vol.
1, Modern Constitutional Law, Antieau, pages 57 and 58 with
decisions of the United States Supreme Court within the
text.)
Tne following United States Supreme Court opin-
ions held that whenever there is a clash between the
United States Constitution damaging the health of
30
children and freedom of speech, the former must pre-
vail: Thornhill v. Alabama, 310 U.S. 88, 84 L.Ed.
1093; Hughes v. Superior Court of California, 339
U.S. 460, 94 L.Ed. 985; Prince v. Massachusetts, 321:
U.S. 158, 88 L.Ed. 645.
In the case of Akins v. County of Sonoma, 67 C.2d
185, the Court approved an instruction recognizing
the tender and complex character of children and the
need to exercise greater care for their protection and
safety.
Why did the Petitioners go to the Walt Disney
Productions who refused among 15 others to sponsor
this production if they did not anticipate through
their negligence and recklessness that they would se-
cure a children’s audience ?
Again, we state emphatically that this case must be
viewed narrowly and considered as any other action
based upon negligent and reckless conduct would be
considered.
There is a different constitutional standard concern-
ing the First Amendment defense when there is a
specific aim to direct words or pictures to juveniles
as distinguished from adults.
See First Unitarian Church of Los Angeles v. Los
Angeles County, 311 P.2d 508, which holds the well-
known principle of law that there is no absolute right
of free speech.
See the case of Davis v. Macon Telegraph Publish-
ing Co., 92 S.E.2d 619, that holds that free press and
responsible press should be synonymous.
31
We respectfully call to the Court’s attention those
cases which hold that whenever clear and present dan-
ger outweighs the utility of the speech or picture in-
volved, the First Amendmeni is no longer a defense.
Winters v. People of the State of New York, 330 U.S.
507, at page 510, 92 L.Ed. 840.
The question of what constitutes clear and present
danger is always a question of fact. Danskin v. S. D.
Unified School District, 28 C.2d 536, at page 542;
Bridges v. State of California, 86 L.Ed. 172; People
v. Garcia, 37 C.A.2d Supp. 753 at 761; Roth v. United
States, 354 U.S. 476, 1 L:Ed.2d 1498.
Your Honorable Court has always shown a special
regard for juveniles concerning publications by the
media. See Redrup v. New York, 386 U.S. 767, 18
L.Ed.2d 515, at page 517.
To the same effect, Your Honorable Court states
in the case of Paris Adult Theater v. Slaton, 413 U.S.
49, 37 L.Ed.2d 446 at page 486:
“The opinion in Redrup and Stanley v. Georgia
reflected our emerging view that the state inter-
ests in protecting children and in protecting un-
consenting adults may stand on a different footing
from the other asserted state interest ....
“If children are not possessed of that full ca-
pacity for individual choice, which is the pre-
supposition of the First Amendment guarantees,
then the state may have a substantial interest in
precluding the flow of obscene material, even to
consenting juveniles.”
The Court has recognized pictures as encouraging
or carrying anti-social behavior in juveniles. We call
32
the Court’s attention to the case of Kaplan v. Caley,
413 U.S. 115, 37 L.Ed.2d 492, at 497:
“For good or ill, a book has a continuing life. It
is passed hand to hand, and we can take note of
the tendency of widely circulated books of this
category to reach the impressionable young and
have a continuing impact. (Footnote—Report of
the Commission on Obscenity and Pornography
401 [ Hill-Link Minority Report]). A state could
reasonably regard the ‘hard core’ conduct de-
scribed by Suite 69 as capable of encouraging or
causing anti-social behavior, especially in its im-
pact on young people.”
It is interesting to note that Your Honorable Court
here recognizes that the media can produce an anti-
social behavior reaction by what it publishes in its
import on young people.
This is of particular importance when we observe
the language of other United States Supreme Court
decisions that are cited in Appellant’s Opening Brief
that emphasizes that motion pictures and television
have far more impact on their listening audience than
does the printed word,
The concern for young people with regard to the
media is again expressed by the Ninth Circuit in the
ease of United States v. Pellegrino, 467 F.2d 41 at
page 44:
“This is not to say that in cases of distribution
or exposure to juveniles or of intrusion upon un-
willing or unsoliciting adults, the First Amend-
ment protects distribution of all non-obscene
materials. Ginsberg v. New York, 390 US 629, 20
33
L.Ed.2d 195, holds to the contrary that certain
non-obscene (under general constitutional stand-
dards) material deemed harmful to youth is sub-
ject to regulation ... The point is that in these
areas special regulations are necessary to meet
these special problems. (Jacobellis v. Ohio, 378
US 184, 195, 12 L.Ed.2d 793; Emerson, Toward
a General Theory of the First Amendment, 72
Yale L.J. 877, 938-39; Magrath, The Obscenity
Cases; Grapes of Roth, 1966 Sup. Ct. Rev. 7,
75-76 and n.295.)”
The Court then held that in the instant case there
was no evidence that the appellant was attempting to
appeal to an audience of minors. The book involved
contained explicit color photographs of female geni-
talia.
It is obvious that photographs of the naked body
have never been considered obscenity. Yet the Ninth
Circuit let it be known that if such literature had
been distributed and aimed at audiences of juveniles,
the standard would be different.
The case of Rowan v. Post Office Department, 25
L.Ed.2d 763, reminds us that television intrudes upon
the privacy of the home.
Again Your Honorable Court considers minors dif-
ferent from adults in the case of Young v. American
Mini Theaters, 49 L.Ed.2d 310, decided in June, 1976.
In this case an ordinance was passed that adult
book stores and adult movie houses had to be located
more than 500 feet from a residential area.
34
In considering the constitutionality of such a stat-
ute in face of the alleged defense of the First Amend-
ment, Your Honorable Court states at page 321:
“The ordinances are not challenged on the ground
that they impose a limit on the total number of
adult theaters which may operate in the City of
Detroit. There is no claim that distributors or
exhibitors of adult films are denied access to
the market or, conversely, that the viewing public
is unable to satisfy its appetite for sexually ex-
plicit fare. Viewed as an entity, this commodity
is essentially unrestrained.”
It might be noted that there is no attempt here to
keep the public from viewing violence on children or
viewing child pornography but this is merely a case
seeking damages because of the negligent time and
manner in which these scenes were shown.
The Court continues at page 325: ;
“Indeed the members of the Court who would
accord the greatest protection to such materials
have repeatedly indicated that the state could
prohibit the distribution or exhibition of such
materials to juveniles. Surely, the First Amend-
ment does not foreclose such a prohibition ... .
Moreover, even though we recognize that the
First Amendment will not tolerate the total sup-
pression of erotic materials that have some ar-
guably artistic value, it is manifest that society’s
interest of expression is of a wholly different and
lesser magnitude than the interest in untram-
meled political debate that inspired Voltaire’s
immortal comment.”
35
In the case of Ginsberg v. United States, 390 U.S.
629, the facts involved the sale to a 16-year-old boy
of two girly magazines that can be found on all of
our newsstands. This sale was made in violation of
an ordinance that made it unlawful to sell that which
is obscene to minors rather than what is obscene to
adults. The Supreme Court states as follows in the
opinion:
“The ‘girly’ picture magazines involved in the
sales here are not obscene for adults. But 484-h
does not bar the Appellant from stocking these
magazines and selling them to persons 17 years
of age or older and, therefore, the conviction is
not invalid .... We have recognized that even
where it is an invasion of protected freedom ‘the
power of the state to control the conduct of chil-
dren reaches beyond the scope of its authority
over adults’. Prince v. Massachusetts, 321 US
158, 170, 88 L.Ed. 645, 654... . But despite the
vigor of the ongoing controversy whether obscene
material will perceptibly create a danger of anti-
social conduct or will probably induce its recip-
ients to such conduct, a medical practitioner
recently suggested that the possibility of harmful
effects to youth cannot be dismissed as frivolous.
Dr. Gaylin of the Columbia University Psycho-
analytic Clinie reporting on the views of some
psychiatrists in 77 Yale L.J. at 592-593.” (Italies
ours)
Miller v. California, 413 U.S. 15, 37 L.Ed.2d 419
at 430:
“This much has been categorically settled by the
Court that obscene material is unprotected by the
First Amendment.”
36
And at page 431: |
“It is possible, however, to give a few preliminary
examples of what a state statute could define for
regulations under part (b) of the standard an-
nounced in this opinion, supra;—(a) Patently
offensive representations or distributions of ulti-
mate sexual acts, normal or perverted, actual or
simulated. In resolving the inevitably sensitive
questions of fact and law, we must continue to
rely on the jury system.” (Italics ours)
Thus, Your Honorable Court points out that a state
statute under the standard now set forth by the Court,
can prevent an offensive perverted sexual act, even
if simulated, and certainly if performed on a 12-year-
old girl, as was done in the instant case. Again it is
interesting to note that in considering such standards,
the Supreme Court specifically points out that we
must rely on the jury system.
Your Honorable Court continues at page 435:
“The adversary system with lay jurors as the
usual ultimate fact finders in criminal prosecu-
tions has historically permitted the triers of fact
to draw on the standards of their community
guarded always by limiting instructions on the
law.”
Another case that points out the difference between
the standards for juveniles and the standards for
adults is Quarterman v. Byrd, 453 F.2d 54 at page 57:
“Free speech under the First Amendment, though
available to juveniles and high school students as
well as to adults, is not absolute and the extent of
its application may properly take into consider-
37
eration the age or maturity of those to whom it is
addressed. Thus, publications may be protected
when directed to adults, BUT NOT WHEN
MADE AVAILABLE TO MINORS. ( Footnote—
Prince v. Massachusetts, 321 U.S. 158, 170; Gins-
berg v. New York, 390 U.S. 629, 638, Tinker v.
Des Moines School District, 393 U.S. 503.” (Capi-
tals ours)
In the case of Russo v. Central School District No. 1,
Town of Rush, New York, 469 F.2d 623 (1972), at
page 631:
“CHILDREN IN MANY INSTANCES HAVE
MORE LIMITED FIRST AMENDMENT
RIGHTS THAN DO ADULTS.” (Capitals ours)
The Federal Court again recognized the difference
between children and adults when considering a First
Amendment defense and states in the case of Egner v.
Texas City Independent School District, 338 F.Supp.
931 at 944 as follows:
“School officials are entitled to consider the special
characteristics of their charges, such as emotional
immaturity. See Ginsberg v. New York, 390 U.S.
629, 20 L.Ed.2d 195.”
The same holding may be found in the cases of
Sullivan v. Houston Independent School District, 333
F.Supp. 1149, 1162-1163; 82 Harvard L.Rev. 63, 124-
130; Conners v. Riley, 395 F.Supp. 1244.
Special legislation concerning censorship as applied
to books sold to children was upheld in the ease of
People v. Kahan, 206 N.E.2d 333 at 334:
38
“REASONABLE RESTRICTIONS MAY BE
PLACED ON BOTH THE TIME AND THE
PLACE AND THE MANNER OF THE EXER-
CISE OF FREE SPEECH. Chambers v. Mu-
nicipal Court for Oakland, Piedmont Judicial
District, Alameda County, 135 C.Rptr. 95.” (Capi-
tals ours)
To the same effect, see Koppinger v. City of Fatr-
mont, 248 N.W.2d 708.
It is interesting to note that in the Chambers case
the Court points out that REASONABLE RESTRIC-
TIONS MAY ALWAYS BE PLACED ON BOTH
THE TIME AND THE PLACE AND THE MAN-
NER OF THE EXERCISE OF FREE SPEECH.
This is particularly applicable to the instant case
where we claim that the negligence and reckless con-
duct of Petitioners consisted in the time in which they
broadcast the picture and the manner in which they
did so and the manner in which they framed their
advertisements in order to induce a youthful audience.
The Federal District Court of New York likewise
considered the different standards concerning children
than adults in the case of Trachtman v. Anker, 426
F.Supp. 198 (December, 1976). This case involved the
distribution of questionnaires in a school concerning
the sexual attitudes of the students. The Court states
at page 201:
“First Amendment rights must be applied in the
context within which they are asserted . . . what
is the potential for psychological harm as a result
of the distribution? .. . If defendants can prove
pats aan ae
alata lek oi te Sey done.
39
there is a strong possibility the distribution of
the questionnaire would result in significant
harm to members of Stuyvescent High School
then the distribution could be denied .. . The
thrust of defendants’ evidence is that serious harm
could result if certain students are confronted
with particular questions in the survey. The re-
sults, defendants claim, is that certain students
may become quite apprehensive or even unstable
as a result of answering this questionnaire. The
Court finds that this reason applies only to stu-
dents as young as 13 and 14 years of age. De-
fendants, therefore, did not violate the Constitu-
tion in prohibiting distribution at this level.”
At page 202:
“FREE SPEECH UNDER THE FIRST
AMENDMENT, THOUGH AVAILABLE TO
JUVENILES AND HIGH SCHOOL STU.
DENTS, AS WELL AS TO ADULTS, IS NOT
ABSOLUTE, AND THE EXTENSION OF ITS
APPLICATION MAY PROPERLY TAKE
INTO CONSIDERATION THE AGE OR MA.
TURITY OF THOSE TO WHOM IT IS AD.
DRESSED. Quarterman v. Byrd, 453 Fed.2d 54
57 (4th Cir. 1971) ... INFORMATION ABOUT
SEX, BOTH CORRECT AND INCORRECT
IS IMPARTED DAILY ON TELEVISION.
ON RADIO AND VIA THE RASH OF NEW
SEX MAGAZINES ABOUT TOWN. THE
COURT FINDS THAT THE SURVEY, AS TO
THE OLDER STUDENTS, WOULD OUT.
WEIGH ANY HARM. THE COURT FINDS
THAT THE DOCUMENTS SHOULD NOT BE
DISTRIBUTED TO THE 9TH AND 10TH
GRADE STUDENTS; THAT SAFEGUARDS
40
SHOULD BE PROVIDED FOR GRADES 11
AND 12.” (Capitals ours)
The Petitioners cite the cases of Erznoznik v. City of
Jacksonville and Pacifica Foundation v. FCC (which
relied on Erznoznik) for the proposition that dissem1-
nation of protected materials may be limited so as not
to reach minors only in very limited circumstances.
But both cases invalidated speech regulating statutes
on grounds of overbreadth, claiming that the laws in-
volved in each case could have been drafted more
narrowly. This case presents no overbreadth issue he-
cause no law, and no direct attempt at regulation by
the state, is being challenged; rather the Respondent
seeks merely to initiate a cause of action sounding in
tort and the Petitioners certainly can level no over-
breadth claim against the decisional precedent or
statutes sanctioning such an action.
Moreover, Erznoznik has since been distinguished
by Your Honorable Court. Young v. American Mint
Theaters, 427 U.S. 50, involved a Michigan ordinance
restricting the location of adult theaters. The Petition-
ers cited Erznoznik as a basis for invalidating the
ordinance. The Court said:
“The city council’s determination was that a
concentration of ‘adult’ movie theaters causes the
area to deteriorate and becomes a focus of «rime.
effects which are not attributable to theaters show-
ing other types of films. It is this secondary effect
which this zoning ordinance attempts to avoid,
not the dissemination of ‘offensive’ speech. In con-
trast, in Erznoznik ... the justification offered by
the city rested primarily on the city’s interest in
41
protecting its citizens from exposure to unwanted,
‘offensive’ speech.”
Here, the Respondent’s tort action is not instituted for
the purpose of stifling speech; nowhere does Respond-
ent contend that “Born Innocent” should never have
been televised at any time. Rather, she contends it was
negligent to telecast this film in early evening hours.
The purpose of her lawsuit, then, is focused upon a
“secondary effect” making Petitioners liable for their
negligent act. Thus, Respondent’s suit fits within the
exception engrafted by Young upon Erznoznik.
The New York Court of Appeals was asked to pass
upon the validity of a statute prohibiting the sale of
explicit but non-obscene materials to minors. It said:
The clear implication . . . is that material which
is protected for distribution to adults is not nec-
essarily constitutionally protected from restriction
upon its dissemination to children. In other words,
the concept of obscenity or of unprotected matter
may vary according to the group to whom the
questionable material is directed or from whom
it is quarantined. Because of the State’s exigent
interest in preventing distribution to children of
objectionable material, it can exercise its power
to protect the health, safety, welfare and morals
of its community by barring the distribution to
children of books recognized to be suitable for
adults.
Three years later, in a case involving a challenge
to the same law, Your Honorable Supreme Court ex-
pressed similar sentiments;
42
We do not regard New York’s regulation in de-
fining obscenity on the basis of its appeal to
minors under 17 as involving an invasion of
such minors’ constitutionally protected freedoms.
Rather [the challenged enactment] simply adjusts
the definition of obscenity “to social realities by
permitting the appeal of this type of material to
be assessed in terms of the sexual interest . . .”
of such minors... That the State has power to
make that adjustment, for we have recognized
that even where there is an invasion of protected
freedoms “the power of the state to control the
conduct of children reaches beyond the scope of
its authority over adults... .” Prince v. Massa-
chusetts, 321 U.S. 158, 170 [1943].
The rule of Ginsberg, supra, has been reiterated by
later decisions. Thus, the same term, in Interstate
Circuit v. Dallas, 390 U.S. 676, 690 (1968), the Court
said: “We have indicated more generally that because
of its strong and abiding interest in youth, a state
may regulate the dissemination to juveniles of, and
their access to, material objectionable as to them but
which a State clearly could not regulate as to adults.”
Similarly, it was noted in Trachtman v. Anker, 426
F.Supp. 198, 201 (S.D. N.Y. 1976) that Tinker v. Des
Moines School Dist., 393 U.S. 503 (1969) “did not
delineate the circumstances under which the school
authorities may proscribe students’ First Amend-
ment rights. If defendants can prove there is a strong
possibility the distribution of the questionnaire [con-
cerning students’ sexual attitudes] would result in
significant psychological harm to members of Stuy-
43
vesant High School, then the distribution could be
denied.”
Similarly, in Conners v. Riley, 395 F.Supp. 1244
1251 (W.D. Ark. 1975), the Court remarked: “The
Ginsberg doctrine applies not only in the context of
an actual sale of material in question to a minor but
is equally viable in the situation where the material
is displayed publicly or displayed in an area to which
children have access.” The Fourth Circuit has adopted
a similar stance: “Free speech under the First
Amendment, though available to juveniles and high
school students, as well as to adults, is not absolute
and the extent of its application may properly take
into consideration the age of maturity of those to
whom it is addressed. Thus, publications may be pro-
tected when directed to adults but not when made
available to minors. . . .” (Quarterman v. Byrd, 453
F.2d d4, 57-58 (4th Cir. 1971)). So has the Ninth
Circuit: “This is not to say that in eases of distribu-
tion or exposure to juveniles or of intrusion upon
unwilling or unsolicited adults the First Amendment
protects distribution of all non-obscene materials.
Ginsberg . . . holds to the contrary that certain non-
obscene (under general constitutional standards)
material deemed harmful to youth is subject to regu-
lation. The same surely applies to undue intrusion. . . .
The point is in these areas special regulation is
necessary to meet these special problems.” (United
States v. Pellegrino, 467 F.2d 41, 44-45 (9th Cir.
1972) ).
44
All these rulings sanction direct state control over
the dissemination of otherwise protected materials to
juveniles. They authorize regulation of both the sales
of and the access of such materials. Here, the State
is, if at all, regulating indirectly by providing a
forum for a tort suit against a broadcaster who tele-
vised such an objectionable program. Given the
State’s interests in protecting minors, this degree of
regulation is entirely permissible and well within the
parameters of the Ginsberg rule, But Petitioners
claim broadcasters, who have no control over their
audience, ought to be entitled to a special exemption
from this rule. They cite one case (Butler v. Michi-
gan, 352 U.S. 380 (1957)) decided by the Supreme
Court eleven years before Ginsberg to support their
view; but that case, besides expressing an antiquated
view of the problem, dealt with booksellers, not broad-
casters. Conversely, the cases cited (on pages 16-17)
refer generally to objectionable materials and make
no distinction among the disseminators of such ma-
terials.
This Honorable Court in the case of Young v.
American Mini Theaters, 427 U.S. 50, 69-71, did not
distinguish among the ways in which such objection-
able films could be accepted or the ability to exclude
minors from theaters. Written films could be regu-
lated on the basis of content which even protected
materials could be withheld from minors. Thus, the
Ginsberg-Y oung rationale evinces courts’ desire to
afford states great leeway in protecting juveniles and
that rationale is broad enough to support the prose-
cution of a tort action in State courts.
45
Petitioners would attempt to counter this argument
by citing cases like Erznoznik v. Jacksonville, 422
U.S. 205 (1975) and Pacifica Foundation v. FCC, 556
F.2d 9 (D.C. Cir. 1977). Both these cases invalidated
either a State law of a Federal regulation restraining
certain types of communications; but both did so on
grounds of overbreadth, in that the challenged enact-
ments were phrased too loosely to withstand judicial
scrutiny. In this case, no overbreadth issue exists.
Certainly Petitioners do not claim the judicial prece-
dent or State statutes vesting plaintiff with a cause
of action are themselves constitutionally infirm, In-
stead, Petitioners rely on dicta taken from these cases
to support their dubious thesis. But Young, too,
talked about Erznoznik. In Young, a challenge was
raised to a Detroit ordinance restricting the placement
of adult theaters. The Court distinguished Erznoznik
as follows:
The [Detroit] City Council’s determination was
that a concentration of “adult” movie theaters
causes the area to deteriorate and become a focus
of crime, effects which are not attributable to
theaters showing other types of films. It is this
secondary effect which this zoning ordinance at-
tempts to avoid, not the dissemination of “offen-
sive” speech. In contrast, in Erznoznik, supra,
the justifications offered by the city rested pri-
marily on the city’s interest in protecting its
citizens from exposure to unwanted, “offensive”
speech. The only secondary effect relied on to
support that ordinance was the impact on traffie—
an effect which might be caused by a distracting
open-air movie even if it did not exhibit nudity
(Young, supra at 71 n. 34),
46
Here, the State’s provision of a forum to try a tort
action is not aimed at stifling speech. The Respond-
ent’s claim is that a specific scene in a broadcast film
caused her harm, for which she seeks a recovery. The
focus of the tort action, then, is not on the curtailment
of a type of communication, but rather on ensuring
that a specific media defendant pays for the conse-
quences of his negligence. This goal is an example of
the “secondary effect” referred to by Young. There-
fore, Respondent’s use of State courts to impose
liability on the Petitioners falls within the specific
exception engrafted upon Hrenoznik (and, by ex-
tension, Pacifica Foundation, which relied on the
logic of Erznozntk) by Young.
D. Assuming that the First Amendment defense applies, it does
not mean Respondent should be deprived of a trial. Dis-
putes over constitutional questions and the existence of
constitutional facts are no exception to the Seventh Amend-
ment.
Even assuming that in this case there are “consti-
tutional facts” which we strongly dispute, constitu-
tional fact rubric requires de novo appeilate review
by judges.
Petitioners engaged in a lengthy discussion of
“constitutional fact” and the implications in that
term that have been explained by various decisions in
libel and obscenity cases.
Nowhere, however, do they indicate what constitu-
tional facts are at issue in this lawsuit. As defined by
New York Times Co, v. Sullivan, 376 U.S, 254, 284-
286, 11 L.Ed.2d 686 (1964), the rubric “constitutional
47
fact” will be invoked whenever “*‘. . . a conclusion of
law as to a Federal right and a finding of fact are so
intermingled as to make it necessary, in order to pass
upon the Federal question, to analyze the facts.” In
this case, however, it is never suggested that any
intermingling of law and fact (such as, for example,
the concepts of “actual malice” or “public figure” in
a libel action) exists with respect to any issue in this
lawsuit. Indeed, the Petitioners seem to suggest (p.
16) that the only constitutional fact involved herein
is whether or not “Born Innocent” is actionable. But
that, of course, involves the question of whether the
telecasting of that film engendered tortious liability,
a question for the jury to decide, and a question which
differs significantly from the types of problems re-
ferred to by Your Honorable Court in New York
Times, supra.
Even assuming, however, that this case presents an
issue of constitutional fact, Petitioners’ analysis of
the problems raised by such a designation is specious.
They point out, as they must, that whenever a case
contains such issues, appellate courts must engage in
a de novo review of the facts. This obligation has been
summarized well by the Court in New York Times:
“This Court’s duty is not limited to the elaboration of
constitutional principles; we must also in proper cases
review the evidence to make certain that those princi-
ples have been constitutionally applied . .. We must
‘make an independent examination of the whole rec-
ord.’” New York Times, supra, at 285-86. Accord,
Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 54
(1971) ; Time, Inc. v. Pape, 401 U.S. 279, 284 (1971).
48
From such language the Petitioners derive the prin-
ciple that whenever a suit is based on a publication,
a Court must determine whether or not that publica-
tion is constitutionally privileged (p. 15). They claim
that the Court of Appeals erred in remanding this
ease for trial; in fact, the only error is in their
misapprehension of relevant precedent.
Although many eases contain dicta to the effect that
summary judgments or directed verdicts may be use-
ful in libel suits where media defendants are involved,
the following propositions are nevertheless control-
ling:
1. While New York Times announces a standard
by which evidence in libel cases will be judged, the
manner in which that standard is applied is the same
as in all other cases in which it is claimed no issue
exists for a jury to decide.
2. Disputes over constitutional fact are no excep-
tions to the Seventh Amendment.
3. The very fact that a case involves an issue of
constitutional fact requires independent de novo re-
view of the trial record by appellate courts; if a sum-
mary judgment is granted too hastily, there is no
appreciable record available for review and thus such
courts are, in effect, precluded from fulfilling their
constitutional duties.
4. The key case cited by Petitioners in support
of its conclusions about the rule regarding summary
procedures in suits involving the First Amendment
are (and have been) limited to their facts.
49
5. Regardless of the presumed need for summary
dismissals in libel cases that same necessity does not
exist in negligence actions such as this one.
First, Petitioners claim that questions of constitu-
tional fact ought to be decided by judges, not juries.
In support of this contention, they cite Guam Fed’n
of Teachers Local 1581, A.F.T. v. Ysrael, 492 F.2d 438
(9th Cir. 1974), to the effect that a presiding judge in
a case involving a media defendant should himself
closely scrutinize the evidence in order to determine
whether or not a suit should be terminated in the de-
fendant’s favor. But this citation is incomplete and
is, aS a consequence, misleading. The Ninth Circuit
went on to state:
“However, with respect we are not persuaded
... that in deciding these motions, the trial court
should judge the credibility of witnesses and draw
its own inferences from the evidence. We think
that in a libel case, as in other cases, the party
against whom a motion for summary judgment, a
motion for a directed verdict, or a motion for
judgment notwithstanding the verdict is made is
entitled to have the evidence viewed in the light
most favorable to him and to all inferences that
can properly be drawn in his favor by the trier
of fact. We think, too, that in such eases it is
not only not the duty of the judge, or of this
court of appeal, to weigh the credibility of the
evidence, or to draw inferences in favor of the
moving party ... but that neither the judge nor
this court on appeal has the authority to weigh
credibility or to choose among legitimate infer-
ences in such cases,
50
The standard against which the evidence must
be examined is that of New York Times and its
progeny. But the manner in which the evidence
is to be examined in the light of that standard
is the same as in all other cases in which it is
claimed that a case shouid not go to the jury.”
(Guam Fed’n of Teachers, Local 1581, A.F.T. v.
Ysrael, 492 F.2d 438, 441 (9th Cir.), cert. denied,
419 U.S. 872 (1974)).
In accord with the above citation we respectfully
eall the Court’s attention to Alioto v. Cowles Com-
munication, 519 F.2d 438, pp. 441-443 (9th Cir. 1975).
Thus, under Ysrael, the scope of a judge’s scrutiny
in response to a request for a summary dismissal ts
very limited; indeed, the decision indicates no special
procedures exist in suits against media defendants, at
least on this point. Later rulings of the Seventh and
Ninth Cireuits concur with this view. Carson v. Allied
News Co., 529 F.2d 206, 213 (7th Cir. 1976); Virgil
v. Time, Inc., 527 F.2d 1122, 1130-31 (9th Cir. 1975),
cert. denied, 425 U.S. 998 (1976); Alioto v. Cowles
Communications, Inc., 519 F.2d 777, 780 (9th Cir.
1975), cert. denied, 423 U.S. 930 (1976). The Court
in Virgil said at 1130:
We cannot agree that the First Amendment re-
quires that the question [of whether or not a
given publication concerns a matter of public in-
terest] must be confined to one of law to be de-
cided by the judge. Courts have not yet gone so
far in other areas of the law involving First
Amendment problems ... The testing of facts
against a standard founded on community mores
does entail judgment of the court itself. But if
51
there is room for differing views as to the state of
community mores or the manner in which it
would operate upon the facts in question, there is
room for the jury function. The function of the
court is to ascertain whether a jury question is
presented.
All these cases indicate that merely because a suit
involves First Amendment issues, the usual procedures
governing the granting or denial of a summary judg-
ment are not thereby displaced. The judge in such
cases is not licensed to view the evidence in any fash-
ion when a media defendant seeks dismissal of a com-
plaint, but must conform to the usual practice and
give the benefit of his doubts to the plaintiff.
Second, a plaintiff who sues a media defendant is
also entitled to trial by jury as guaranteeed by the
Seventh Amendment. If summary procedures are too
liberally relied upon in such cases, that entitlement is
unjustly abrogated. Several Federal courts have em-
phasized this point. In Hotchner v. Castillo-Puche,
404 F.Supp. 1041, 1050 (S.D.N.Y. 1975), rev’d on
other grounds, 551 F.2d 910 (2d Cir. 1977), it was
said: “Although summary judgment in a defamation
action might serve the prophylactic function of spar-
ing authors and publishers the chilling effect of liti-
gation, ‘[t]his procedural weapon is a drastic device
since its prophylactic function, when exercised, cuts
off a person’s right to present his case to the jury.’ ”
Similarly, in Taggert v. Wadleigh-Maurice, Ltd., 489
F.2d 434, 439 (3rd Cir. 1973), cert. denied, 417 U.S.
937 (1974) :
52
Article III, section 2 of the Constitution gave
the Supreme Court appellate jurisdiction “both
as to law and fact.” This clause produced an
adverse public reaction which resulted in the
Seventh Amendment preserving the right to trial
by jury in civil cases and providing further that
“no fact tried by a jury, shall be otherwise re-
examined in any Court of the United States,
than according to the rules of the common law.”
Disputes over “constitutional fact” are no ex-
ception to the seventh amendment. . . . just as
disputed facts in a nonjury case are determined
by trial and not on summary judgment motion,
a trial judge’s decision to instruct the jury with
the New York Times standard or an appellate
court’s de novo review of “constitutional fact”
are both made after a full trial on the contested
factual issues.
The plaintiff here asks only for the same considera-
tion.
Third, as noted earlier, when constitutional fact
issues exist in a case, appellate courts must engage
in an independent de novo review.
An appellate court, of course, can only review a
trial record. If, however, summary judgment is
granted too quickly, this precludes the compilation
of any trial record capable of being reviewed mean-
ingfully. As a result, a court of appeal is denied any
opportunity to fulfill its constitutional obligation.
This point has been aptly summarized by the Third
Cireuit in Taggert at page 438, wherein it said that
a ruling on constitutional privilege in the context
of an invasion of privacy claim
53
. . . Should be made on a record in which the
facts have been fully developed. Only with such
a record can the necessary balance between the
conflicting rights of personal privacy and of free-
dom of expression properly be struck. We realize
that requiring the defendants to defend in a trial
rather than to obtain summary judgment puts
them to additional expense, and arguably sub-
jects their First Amendment rights . . . to that
much extra “chill.” In the context of the problem
... this degree of “chill” seems to us de minimis
when compared with the unsatisfactory alterna-
time of ruling on a potentially serious conflict
between legally protected rights without a com-
plete record.
Accord, Gordon v. Random House, Inc., 486 F.2d
1356, 1360-61 (3d Cir. 1973), vacated on other grounds,
419 U.S. 812 (1974).
The above cited case holds that summary judg-
ments should never be granted with resolve by the
Court where the issue of a constitutional fact pre-
cludes compellation.
E. Films and television are not entitled to the same constitu-
tional protections afforded newspapers or other written
publications.
Your Honorable Court in the case of Times Film
Corporation v. Chicago, 361 U.S. 43 at p. 49 in re-
ferring to motion pictures states:
“Petitioner would have us hold that the public
exhibition of motion pictures must be allowed
under any circumstances, The State’s sole remedy,
it says, is the invocation of criminal process. . . .
o4+
But this position as we have seen, is founded
upon the absolute privilege against prior re-
straint under the First Amendment—a claim
without sanction in our cases.”
Similarly, in the case of Southwestern Promotional
Limited v. Conrad, 420 U.S. 546, 557 (1975) the Court
warned :
“Each medium of expression, of course, must
be assessed for First Amendment purposes by
standards suited to it, for each may present its
own problems.”
This cautionary stance had been evinced sixteen
years earlier, in Kingsley Pictures Corp. v. Regents
of New York, 360 U.S. 684, 689-90 (1959), wherein
the Court stated: “Nor need we here determine
whether, despite problems peculiar to motion pictures,
the controls which a State may impose upon this
medium of expression are precisely coextensive with
those allowable for news, books, or individual speech.”
All these cases stand for the proposition that be-
cause visual representations differ so significantly
from the written word, such representations are sub-
ject to distinctive constitutional protections,
Nowhere is this point made clearer than in Joseph
Burstyn, Inc. v. Wilson, 348 U.S. 495 (1952). That
litigation involved a challenge to a provision of New
York’s education code forbidding the commercial
showing of films without the approval of a state
censor and allowing that official to withhold his ap-
55
proval on the grounds that a film is sacrilegious. At
page 502, the Court said:
It is further urged that motion pictures possess
a greater capacity for evil, particularly among
the youth of a community, than other modes of
expression. Even if one were to accept this hy-
pothesis, it does not follow that motion pictures
should be disqualified from First Amendment
protection. If there be capacity for evil, it may
be relevant in determining the permissible scope
of community control but it does not authorize
the unbridled censorship such as we have here.
Unlike Burstyn, this case presents no “unbridled
censorship”. Respondent does not allege ‘‘Born In-
nocent” should never have been shown at any time;
nor does she advocate the creation of a censor from
whom the networks must seek permission before they
telecast a program. Instead, the Respondent merely
seeks to impose liability for negligence; the state’s
granting of such a cause of action is surely within
the “permissible scope of community control” to which
the Court referred. On pages 502-03, the Court
declared :
To hold that liberty of expression by means of
motion pictures is guaranteed by the First and
Fourteenth Amendments, however, is not the end
of our problem, It does not follow that the Con-
stitution requires absolute freedom to exhibit
every motion picture of every kind at all times
and places. ... Nor does it follow that motion
pictures are necessarily subject to precise rules
governing any other particular method of ex-
56
pression. Each method tends to present its own
peculiar problems.
Here, too, Respondent asks only for damages that
result from the Petitioners’ failure to telecast an
explicit film at a reasonable time. Certainly, her
expectation that the Petitioners would observe rea-
sonable restraints in its televising falls well within
the ambit of the limits referred to by Burstyn. More-
over, the Court went on to say at page 503:
The statute involved here does not seek to punish
as a past offense, speech or writing falling within
the permissible scope of subsequent punishment.
On the contrary, New York requires that per-
mission to communicate ideas be obtained in ad-
vance from state officials who judge the content
of the words and pictures sought to be commu-
nicated. This Court recognized many years ago
that such a previous restraint is a form of in-
fringement upon Freedom of expression to be
especially condemned.
Unlike Burstyn, this case involves no prior restraint.
The Respondent seeks to impose liability after the
fact for specified conduct. Burstyn notes this dis-
tinction and indicates that punishment for prior
conduct is constitutionally acceptable. The same should
be true in the case of the imposition of tortious
liability for such conduct. Thus, Burstyn and all
these cases establish the fact that the First Amend-
ment provides no absolute privilege for filmmakers,
but rather affords a degree of protection narrowly
circumscribed by the state’s ability to exact reason-
57
able restrictions on the time, place and manner in
which a motion picture may be exhibited.
Courts have expressed similar limitations with
respect to television. In 1969, in Red Lion Broad-
casting Co. v. FCC, 395 U.S. 367, 386-87 (1969), Your
Honorable Court noted “Although broadcasting is
clearly a medium affected by a First Amendment
interest . . . differences in the characteristics of new
media justify differences in the First Amendment
standards applied to them.” Four years later, the
Court explained in its holding this case as follows:
“,.. Red Lion ... makes clear that the broadcast
media pose unique and special problems not
present in the traditional free speech case. Un-
like other media, broadcasting is subject to an
inherent physical limitation. Broadcast frequen-
cies are a scarce resource; they must be portioned
out among applicants. All who possess the
financial resources and the desire to communicate
by television and radio cannot be satisfactorily
accommodated. The court spoke to this reality
when, in Red Lion, we said ‘It is idle to posit an
unabridgeable First Amendment right to broad-
cast comparable to the right of every individual
to speak, write or publish.” (Columbia Broad-
casting Sys. v. Democratic Comm., 412 U.S. 94,
101 (1973)).
Lower Federal courts have expressed similar views.
Thus, in National Lampoon, Inc. v. American Broad-
casting Co., 376 F.Supp. 733, 740 n. 2 (S.D.N.Y.
1974), it was said: “Jt has generally been recognized
that the freedom of expression, and indeed the First
58
Amendment rights of licensed broadcasters, are sub-
ject to more limitations than publishers, and per-
formers on the stage.” Similarly, in Mt. Mansfield
Television, Inc. v. FCC, 442 F.2d 470, 477 (2d Cir.
1971), the Court warned “However, the extent of
permissible regulation under the First Amendment is
not identical for all means of communication, The
peculiar character of the broadcast media requires the
application of constitutional standards to their regu-
lation which differ from those applicable to other
types of communication.” The point was best ex-
pressed in Banzhaf v. FCC, 405 F.2d 1082, 1100-01
(D.C. Cir. 1968), cert. denied, 396 U.S. 842 (1969):
The First Amendment is unmistakably hostile to
governmental controls over the contents of the
press, but that is not to say that it necessarily
bars every regulation which in any way affects
what the newspapers publish. Even if it does,
there may still be a meaningful distinction be-
tween the two media justifying different treat-
ment under the First Amendment. Unlike
broadcasting, the written press includes a rich
variety of outlets for expression and persuasion,
including journals, pamphlets, leaflets, and cir-
cular letters, which are available to those without
technical skills or deep pockets. Moreover, the
broadcasting medium may be different in kind
from publishing. ... Written messages are not
communicated unless they are read, and reading
requires an affirmative act. Broadcast messages,
in contrast, are “in the air.” In an age of omni-
present radio, there scarcely breathes a citizen
who does not know some part of a leading
cigarette jingle by heart, Similarly, an ordinary
59
habitual television watcher can avoid these com-
mercials only by frequently leaving the room,
changing the channel, or doing some such other
affirmative act. It is difficult to calculate the sub-
liminal impact of these pervasive propaganda,
which may be heard even if not listened to, but
it may reasonably be thought greater than the
impact of the written word.
All these cases conclude that the First Amendment
does not absolutely shield broadcasters from regula-
tion by the state. Each of these suits involved direct
control exercised by the FCC and, in each case, the
controls imposed were upheld as constitutionally per-
missible. Here, the state is regulating, if at all, only
indirectly, by providing the forum for a tort suit
against a broadcaster. If Federal courts are amenable
to allowing direct governmental interference with
broadcasting policies, surely the principles announced
in such cases should support the kind of indirect
“interference” at issue in this case. Any suggestion
that the First Amendm at exempts negligent tele-
casts from liability simply ignores the fact that the
First Amendment protections accorded broadcasters
are not coextensive with those granted other types of
media defendants.
F. Even protected speech is subject to a balancing test.
Even if ‘‘Born Innocent” were determined to be
protected speech that would not foreclose further
judicial inquiry. A number of courts have pointed
out, in the context of cases involving the media, that
even protected speech is subject to a balancing test
60
in order to determine whether or not it is thoroughly
immune from regulation in the public interest.
To this effect, see Buckley v. American Fed. of
Television & Radio Artists, 496 F.2d 305, at p. 311
where the Court states as follows:
‘‘Acts of speech and of expression, although
protected by the First Amendment are not so
exalted that they can never be, even indirectly,
obstructed. Cox v. New Hampshire, 312 U.S. 569,
61 S.Ct. 762, 85 L.Ed. 1049 (1941). Indeed, even
with reference to freedom of the press, the
Supreme Court has recently reaffirmed what has
long been understood to be the law: ‘[O]therwise
valid laws serving substantial public interest may
be enforced against the press as against others,
despite the possible burden that may be imposed.’
Branzburg v. Hayes, 408 U.S. 665, 682-683, 92
S.Ct. 2646, 2657, 33 L.Ed.2d 626 (1972). More
specifically, where there is a proper governmental
purpose for imposing a restraint and where the
restraint is imposed so as not to ‘unwarrantedly
abridge’ acts normally comprehended within the
First Amendment, there is no abridgment of
First Amendment rights.” Cox v. New Hampshire,
supra, at 574.
The Court is respectfully directed to the case of
Banzhaf v. FCC, supra, at page 1102 concerning this
question of balancing of interest.
The case of Writers Guild of America West, Ine.
v. FCC, 423 F.Supp. 1064, 1134-35, 1140, 1154 (C.D.
Cal. 1976) holds that the First Amendment is not
violated by self-regulations of the time and place of
televising a program, Here again, the Court is point-
61
ing out that television stations have a duty to the
public and must recognize times and places where
certain telecast matter is proper and that such self-
regulation does not violate the First Amendment.
That is the exact contention used by Respondent in
this case and that because Petitioners who had a duty
to the public negligently and with recklessness failed
to self-control themselves, a child was seriously in-
jured and for this tortious act on their part they
must pay damages. As stated by the Court, this has
nothing to do with the First Amendment.
In the case of Interstate Circuit v. Dallas, 390 U.S.
676, 690 (1968) the Court states:
“We have indicated more generally that because
of its strong and abiding interest in youth, a
state may regulate the dissemination to juveniles
of, and their access to, material objectionable as
to them but which a state clearly could not regu-
late as to adults.”
In Conners v. Riley, 395 F.Supp. 1244, 1251 the
Court states:
“The Ginsberg doctrine applies not only in
the context of an actual sale of material in ques-
tion to a minor but is eque!\y viable in the situa-
tion where the material is either displayed pub-
licly or displayed in an area to which children
have access.”
In Young v. American Mini Theaters, 44 U.S.L.W.
at 5005, it states that the context of material is
different involving children than adults. Thus, con-
62
text may be considered in addition to time and place
if the First Amendment is conceded to be a defense.
In Buckley v. American Fed. of Television & Radio
Artists, 496 F.2d 305, 311 (2d Cir. 1974), it was said:
Acts of speech and of expression, although
protected by the First Amendment, are not so
exalted that they can never be even indirectly
obstructed. Cox v. New Hampshire, 312 U.S.
569, 61 S.Ct. 762, 85 L.Ed. 1049 (1941). Indeed,
even with reference to freedom of the press, the
Supreme Court has recently reaffirmed what has
long been understood to be the law: ‘*[O]therwise
valid laws serving substantial public interests
may be enforced against the press as against
others, despite the possible burden that may be
imposed.” Branzburg v. Hayes, 408 U.S. 665, 682-
683, 92 S.Ct. 2646, 2657, 33 L.Ed.2d 626 (1972).
More specifically, where there is a proper govern-
mental interest for imposing a restraint and
where the restraint is imposed so as to not ‘‘un-
warrantedly abridge” acts normally compre-
hended within the First Amendment, there is no
abridgment of First Amendment rights. Cox v.
New Hampshire, supra at 574.
An illuminating example of such balancing is pro-
vided by Zacchini v. Scripps-Howard Pub. Co., 45
U.S.L.W. 4954 (U.S. June 28, 1977). That litigation
involved a tort action to recover for the unauthorized
televising of the plaintiff’s circus act. The Court ad-
mitted that entertainment enjoyed First Amendment
protection in general, but said at page 4957:
It is evident, and there is no claim here to the
contrary that Petitioner’s state-law right of pub-
63
licity would not serve to prevent Respondent
from reporting newsworthy facts about the Peti-
tioner’s act. Wherever the line in particular
situations is to be drawn between media reports
that are protected and those that are not, we
are quite sure that the First and Fourteenth
Amendments do not immunize the media when
they broadcast a performer’s entire act without
his consent.
At page 4958, the Court noted:
““Petitioner does not seek to enjoin broadcast
of his performance; he simply wants to be paid
for it. Nor do we think that a state-law damages
remedy against Respondent would represent a
species of liability without fault contrary to the
letter or spirit of Gertz [v. Robert Welch, Inc.,
418 U.S. 323 (1974) ].”
In Zacchini, supra, the Court never did decide
whether the speech in question was or was not un-
protected. It merely held that, upon balancing the
interests of the media vis-a-vis those of Petitioner,
one could not say that the First Amendment im-
munized the former from liability. The Court went
on to point out that Gertz did not bar tort actions
against the media premised upon some underlying
theory of fault. The principles of Zacchini apply in
this case. Here, too, Respondent is not alleging lia--
bility without fault. She claims that a specific act
of negligence on the part of the Petitioners proxi-
mately caused harm to her. Nor is the social utility
inherent in televising “Born Innocent” at 8 p.m.
(rather than 9 p.m. or 10 p.m.) so great as to pre-
64
clude a state-law damages remedy against the Peti-
tioners. Therefore, under the balancing test as stated
in Buckley and as applied in Zacchini, it can be seen
that the’ interests of the Petitioners simply do not
outweigh those of the Respondent, even assuming
that the speech involved in this case is protected.
Assuming that imposition of liability in this case
would lead to self-censorship such a result would not
be unconstitutional.
This conclusion is borne out by language appearing
in the case of Writers Guild of America West, Inc.
v. FCC, 423 F.Supp. 1064 (C.D. Cal. 1976), which
dealt, inter alia, with the constitutionality of the
family viewing hour. In that case, the Court repeat-
edly held that it was “constitutional (even assuming
state action) for the networks in the capacity as
station owners (i.e., licensees) to adopt a family view-
ing policy and independently apply it...” (ld. at
1134). Thus, the Court claimed: ‘‘The question of
what the needs of the community are at particular
times is peculiarly the province of the licensee. If
the licensee should determine that an audience is
likely to be composed of children and adults at
particular hours, nothing in the First Amendment
prohibits it from programming accordingly.” (/d.)
At page 1135, the Court went on to say: ‘Those
excluded from the airwaves call this censorship.
Those permitted to participate call it visionary edi-
torial decisionmaking. But such decisions are inherent
to the broadcasting function and constitutionally pro-
65
tected whether or not state action is present. There-
fore independent adoption of and application of a
family viewing policy by a licensee does not violate
the First Amendment.”
Here, Respondent does not ask for state regulation
of network telecasting policies; she merely wants to
recover for harm caused to her by Petitioners’
negligence.
Even assuming such an award will cause networks
to televise certain programs at later hours, this uni-
lateral decision is, according to Writers Guild, not a
violation of the First Amendment.
Thus, the regulatory policy which Petitioners claim
will be compelled by recognition of a damage remedy
here is itself constitutionally permissible because it
entails no more than self-regulation. Consequently,
Respondent perceives no harm in allowing her to
press a lawsuit where an alleged indirect effect of
that lawsuit will, at best, yield a course of conduct
affirmatively sanctioned by the First Amendment.
CONCLUSION
We respectfully submit that the First Amendment
is not a defense to a negligence action.
Respondent’s action does not call upon the Court
for any prior restraint or for any repression or
censorship involving broadcasting.
66
Even conceding for the purpose of argument only
that the First Amendment applies, for the reasons
above stated, a writ of certiorari would not be proper
at this time.
Dated, April 3, 1978.
Respectfully submitted,
MarvIN E. Lewis,
Lewis, Roupa & LEwIs,
Attorneys for Respondent.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.