Petition for Writ of Certiorari — Foretich v. Lifetime Cable
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JOSEPN F. SPANIOL, UR,
CLERK
IN THE
Supreme Court of the United States
OCTOBER TERM, 1990
HILARY FORETICH,
Petitioner,
Vv.
LIFETIME CABLE and BRITISH BROADCASTING CORP.,
Respondents,
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
- NATHAN LEWIN
(Counsel of Record)
STEPHEN L. BRAGA
DOUGLAS F.. CURTIS
MILLER, CASSIDY, LARROCA
& LEWIN
2555 M Street, N.W.
Washington, D.C. 20037
(202) 293-6400
Attorneys for Petitioner
WILSON - EPES PRINTING Co., Itic. - 789-0096 - WASHINGTON, D.C. 20001
QUESTION PRESENTED
Whether a federal district court’s temporary restrain-
ing order, entered at the request of a child’s court-
appointed counsel, barring the broadcast on national tele-
vision of a surreptitiously filmed intimate private meet-
ing between the child and her mother was an unconstitu-
tional “prior restraint.”
(i)
TABLE OF CONTENTS
Page
GUBSLION PRESENTED ..........................cccccccccccccccccccs. i
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1. Introduction ..................... An 1
sc sinanisinnndinnnunanannen 3
8. The Graphic Interview Session ....000 0... 3
4. The Tapes Are Provided ..........0.00000........ wore. ee 5
5. The Timing of the Broadcast........ . 6
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7. Tee Deseries COURS TOOTING ................................ 6
i eee Eeeernee Gene © CONUIOP qu... 7
9. The Court of Appeals’ Action ... .............. eae 8
REASONS FOR GRANTING THE WRIT .................... 9
1. Not Every Order Affecting Future Expression
Is Presumptively Unconstitutional -....... BN a 9
2. Judicial Preservation of an Individual’s Right
to Privacy May Justify a Court Order Barring
a Television Broadcast .................................... 10
8. The Issue Is a Recurring One Which Is Not
Moot and the Court of Appeals’ Ruling Affects
the Ultimate Relief Available ....... Be eeiiedgelidesphallachas 13
SS RE <n Ai ERE we 14
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iv
TABLE OF AUTHORITIES
CASES: Page
Commonwealth v. Wiseman, 356 Mass. 251, 249
F_un retin ea OR IO ne ue ane 11
The Florida Star v. B.J.F., 109 S.Ct. 2603 (1989) .. 13
Honig v. Doe, 484 U.S. 305 (1988) 0.00. 14
Huskey v. National Broadcasting Co., 632 F. Supp.
I I I 11
In re King World Productions, Inc., 898 F.2d 56
UG ee et 11,12
Lewis v. Continental Bank Corp., 110 S. Ct. 1249
IRIN: codeatekihtdeidachiiactiiahs atc claan bees tics cadeeenaeaantanamendanes 14
Maryland v. Craig, 58 U.S.L.W. —— (June 27,
1990) (1990 U.S. LEXIS 3457) .......... a... 12
Meyer v. Grant, 486 U.S. 414 (1988) 14
Morgan v. Foretich, 528 A.2d 425 (D.C. App.
STI ‘nishccsediabicceucsdebeeeaaanacaeianibiiaianehaahabtitieldibiisbeslehisiaoiaciais 12
Morgan v. Foretich, 846 F.2d 941 (4th Cir. 1988) .. 3
Murphy v. Hunt, 455 U.S. 478 (1982) .....0.. 14
Near v. Minnesota, 283 U.S. 697 (19381) ........ 10
Nebraska Press Ass’n v. Stuart, 427 U.S. 539
IEE ee Ie aD NN eR, ee ae 10
New York Times Co. v. United States, 403 U.S.
I tee 10
Organization for a Better Austin v. Keefe, 402
ee 10
Smith v. Daily Mail Publishing Co., 443 U.S. 97
6 RRR Araneae ate RN neon aN nee aCe 13
Wiseman v. Massachusetts, 398 U.S. 960 (1970).... 11
OTHER AUTHORITIES:
Blasi, “Toward a Theory of Prior Restraint: The
Central Linkage,” 66 Minn. L. Rev. 11 (1981)... 9
Comment, “Indirect Gag Orders and the Doctrine
of Prior Restraint,” 44 U. Miami L. Rev. 165
RRR Sr Lee es eee INN de eo ee SA 10
Freund, “The Supreme Court and Civil Liberties,”
es tits SG MID IIE coco vaca ccacxtdcimaiakesneseceses 9
Jeffries, “Rethinking Prior Restraint,” 92 Yale L.
J. 409 (1983) 20.00. a lict abate edie ac anne eee 10
v
TABLE OF AUTHORITIES—Continued
Mayton, “Toward a Theory of First Amendment
Process: Injunctions of Speech, Subsequent Pun-
ishment, and the Costs of the Prior Restraint
Doctrine,” 67 Cornell L. Rev. 245 (1982) ...........
Murphy, “The Prior Restraint Doctrine in the Su-
reme Court: A Reevaluation,” 51 Notre Dame
Lawyer 898 (1976) ...... 5 slacosiueiididennhaliuamccahanmasioet
Redish, “The Proper Role of the Prior Restraint
Doctrine in First Amendment Theory,” 70 Va.
Be, Bea. GB CAGED annncccccccsncccccncesecsecsscscecenscescesenseens
Smith, “Prior Restraint: Original Intentions and
Modern Interpretations,” 28 William & Mary L.
in, GD CUD ececscencetnnccintceneneninennnnatanenensnsinnninsinn
Page
10
10
pn em
IN THE
Supreme Court of the United States
OCTOBER TERM, 1990
No. ——
HILARY FORETICH,
Petitioner,
v.
LIFETIME CABLE and BRITISH BROADCASTING CORP.,
Respondents.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
OPINIONS BELOW
The per curiam order of the court of appeals issuing
a writ of mandamus (App. A, p. la) is not reported.
The temporary restraining order of the district court
(App. B, pp. 3a-4a) is not reported.
JURISDICTION
The order of the court of appeals issuing a writ of
mandamus was filed on April 6, 1990. The jurisdiction
of this Court rests on 28 U.S.C. § 1254(1).
STATEMENT
1. Introduction
Petitioner is Hilary Foretich, a 7-year-old child who
is the subject of an internationally publicized marital
2
dispute.’ This case concerns approximately four minutes
of a one-hour commercial film that was produced by the
British Broadcasting Company and that was aired by
Lifetime Cable to cable subscribers in the United States
on April 6, 7, 14 and 19, 1990. The sole issue is whether
Hilary, who was covertly filmed in a private session
with her mother when she was four years old, during
which she described sexual abuse by her father, is con-
stitutionally precluded frein obtaining an injunction pre-
venting the broadcast on television of the surreptitiously
taped private conversation she had with her mother.
The district court issued a narrowly drawn temporary
restraining order against broadcast of the film and set
the matter down for an evidentiary hearing on the is-
suance of a preliminary injunction. Approximately three
hours later, without hearing argument from the parties,
the court of appeals issued a writ of mandamus vacating
the temporary restraining order on the ground that it
“constitutes a prior restraint of the use of the video
footage of Hilary Foretich” (App. A, p. la). The court
1 See, e.g., “Charges of Parent Sex Abuse, and a Family Left in
Tatters,” N.Y. Times, Nov. 14, 1987, § 1, at 1, col. 5; “Mother Cites
Sex Abuse, Won’t Let Father See Child; Allegations Called ‘A Total
Lie’; She’s Jailed for Contempt in Custody Battle,” L.A. Times,
Dec. 20, 1987, § 1, at 2, col. 5; Mary McGrory, “When a Judge and
a Mother Collide in Court,” Newsday, Dec. 16, 1988, at 86; “Judge
Refuses to Release Mother Jailed for Hiding Her Daughter,” L.A.
Times, June 20, 1989, § 1, at 4, col. 1: “In the Best Interests of the
Child?”, The Boston Globe Magazine, July 16, 1989, at 16; “Bill to
Free Morgan Signed by President: Attorneys File for Release from
D.C. Jail,” Wash. Post, Sept. 24, 1989, at D1; “Girl in Custody Case
Emerges in New Zealand,” N.Y. Times, Feb. 24, 1990, § 1, at 9, col.
4; “Parents See Girl in Custody Fight,” N.Y. Times, March 19,
1990, § 1, at 16, col. 6; Suzanne Fields, “Doubts that Stalk Hilary’s
Sad Saga,” Wash. Times, March 1, 1990, at Fl; Mary McGrory,
“Hilary’s Appalling World,” Wash. Pest, March 4, 1990, at Cl.
See also M.A. Faber, “The Tormenting of Hilary,” Vanity Fair,
June 1990, at 120; C. Fremon, “The Real Elizabeth Morgan Story,”
Moxie, Feb. 1990, at 20; “Hiding Hilary,” Glamour, Nov. 1988,
at 248.
3
of appeals ruled that Hilary’s rights may only be “re-
dressed in legal actions that do not require a prior re-
straint in derogation of the First Amendment.” Jd. We
seek review by this Court because we believe the court
of appeals erred in concluding that the restraining order
against the public broadcast of the surreptitiously taped
private conversation violated the First Amendment.
2. Background
Hilary Foretich is the daughter of Dr. Eric A. Fore-
tich and Dr. Elizabeth Morgan. Her mother gained in-
ternational celebrity because of her refusal to produce
Hilary and make her available for court-ordered visita-
tions with her father. The mother alleged that the father
had sexually abused Hilary. The parents’ charges and
countercharges are recounted in Morgan v. Foretich, 846
F.2d 941 (4th Cir. 1988). After spending 25 months
in prison for civil contempt because of her refusal to
disclose Hilary’s whereabouts, Dr. Morgan was released
when Congress enacted Pub. L. No. 101-97 (1989).
3. The Graphic Interview Session
In December 1986, when Hilary was four years old,
her mother brought her to the office of Dr. Mary L.
Froning, a psychologist who had been assigned in Jan-
uary 1986 by the Chesapeake Institute to see Hilary in
therapy sessions. The Chesapeake Institute had been
selected by Dr. Morgan and was paid a fee by Dr. Mor-
gan for these sessions.
Hilary and her mother were taken to a room where
their session was photographed by a video camera. Hil-
ary was asked by a psychiatrist, in the presence of Dr.
Froning and her mother, to describe, by the use of dolls,
what her father had done to her. Hilary then stated
that she did not want to tell her story in the presence
of the psychiatrist and Dr. Froning. Both then left the
4 ‘
room, but the video camera continued to photograph the
session between Hilary and her mother.’
While using the dolls, Hilary described, in graphic
terms and with animated gestures, what her father had
done to her. On the film of this session in the respond-
ents’ one-hour film feature, the graphic conversation be-
tween Dr. Morgan and Hilary is also set forth in sub-
titles.?
2 The record in the district court does not discluse whether the
video equipment was visible, but Dr. Froning testified that the four-
year-old child had been told she would be filmed. App. C, p. 44a.
Dr. Froning’s testimony, which was presented at the hearing on the
request for a temporary restraining order, is set out in full at
pp. 37a-54a of Appendix C, which contains the unabridged tran-
script of proceedings before Judge Sporkin on April 6, 1990.
3 The text reads as follows:
HILARY: Make the Daddy doing ... to make the bad
things. Now take off...
DR. MORGAN: Okay, now you tell me you want me to take
the pants off, or do you want to take the pants off?
HILARY: Because the daddy took the pants so he could
poke the little child in the hiney.
Poke her . . . poke her in the hiney.
DR. MORGAN: Okay. And then we’ll pretend.
Now, when I say we’ll pretend we’re just going to pretend
that the dolls are doing it because it makes me a little unhappy
to really do that to the dolls.
So you tell me if that’s...
HILARY: Poke her like that.
DR. MORGAN: And then what else?
HILARY: Slaps her with his clothes off.
DR. MORGAN: Does he slap her with his hand?
HILARY: Yeah.
DR. MORGAN: And anything else?
HILARY: No.
DR. MORGAN: Does he slap her with his clothes on?
Should I put his clothes back on? Or does he slap her without
the clothes on?
* * * *
[Continued]
5
During the conversation with her mother, Hilary used
the dolls that were made available to her to show how
the individuals were positioned. Her voice—including in-
flections exhibiting exuberance, anger and excitement—
is clearly portrayed in the film, as are her bodily gyra-
tions during the narration.‘
4. The Tapes Are Provided
The BBC received the tapes for incorporation into its
film from Dr. Froning, who said she had been given
permission to provide the tapes by Dr. Morgan. The only
condition imposed by Dr. Froning on their use was that
Hilary’s face had to be obscured. Dr. Froning testified
3 [Continued]
HILARY: And Heather was sleeping, and then she got
poked, okay? Okay, she got poked. Daddy comes along and
pokes her.
DR. MORGAN: Show me what the other scary...
[Child slaps. !}
* * * *
HILARY: Writing right there.
DR. MORGAN: That’s what you wrote, and that’s what I
write okay?
HILARY: My daddy has a penis.
DR. MORGAN: Tell me where he puts it. Okay, what is
that?
HILARY: Mouth.
DR. MORGAN: Where else does he put it?
HILARY: [Points to her genitals. ]
DR. MORGAN: Okay, what do you call that?
HILARY: A hiney.
DR. MORGAN: Where else does he put it?
HILARY: In the ear.
4 A second portion of the film was taken in Dr. Morgan’s home by
a video camera. It shows Hilary crying loudly and wriggling in her
mother’s arms when a social worker comes to take her for a visita-
tion with her father. The crying continues for approximately one-
and-a-half minutes. In the district court, respondents voluntarily
agreed that they would not broadcast this portion of the film involv-
ing Hilary if they were restrained from broadcasting the sexual
abuse portion of the film. See App. C, p. 57a.
6
that the reason for this limitation was that Hilary was
still in hiding, and that she did not want her to be dis-
covered (App. C, p. 40a). Upon examination by Judge
Sporkin, Dr. Froning acknowledged that she had not se-
cured permission from Hilary’s court-appointed guardian
ad litem to provide the tapes to the BBC (App. C, pp.
5la-52a).
5. The Timing of the Broadcast
The Morgan-Foretich marital dispute was and con-
tinues to be a subject of substantial public interest. No
urgency was stated by respondents for broadcasting the
film Hilary in Hiding on the particular dates in April.
The respondents’ commercial arrangements with televi-
sion stations apparently controlled the timing of the
broadcast.
6. The Lawsuit
Dr. Foretich initiated this action on April 5, 1990,
seeking temporary and permanent relief on his own be-
half and on Hilary’s against any “airing, licensing or
distribution” ov the film Hilary in Hiding so long as it
contains the above segments of Hilary on camera. The
initial Complaint appears as Appendix D, pp. 59a-63a.
Joining the complaint as one of counsel for the plaintiffs
was Linda P. Holman, Esq., who had been appointed by
the Superior Court of the District of Columbia as guar-
dian ad litem for Hilary.
The complaint stated that Ms. Holman objected to the
airing of the tape of the therapeutic session as well as
the tape of Hilary’s reaction to the arrival of the court-
appointed social worker. She stated that “[t]he thera-
peutic tape is being broadcast in violation of Hilary’s
doctor-patient privilege, as I have not waived her right
to confidentiality” (App. D, p. 62a).
7. The District Court Hearing
The case came on for hearing on the plaintiffs’ re-
quest for a temporary restraining order before District
ae eed A ee a wt mi dc erent nate
7
Judge Stanley Sporkin on the morning of Friday, April 6,
1990. After hearing from counsel for Dr. Foretich and
for the respondents, Judge Sporkin concluded that Hilary
required separate representation. He appointed Nathan
Lewin, Esq., undersigned counsel, to represent Hilary on
a pro bono basis. App. C, p. 20a; App. E, p. 64a.
Undersigned counsel appeared at a reconvened hearing
called for 4:00 p.m. on April 6. Counsel argued that the
challenged portions of the film violated Hilary’s rights
of privacy and that the television broadcast would do
substantial present and future harm to Hilary. Counsel
noted that the availability of home recording devices
made it possible for total strangers to retain permanent
records of Hilary’s most intimate conversations with her
mother regarding a subject that is likely to be highly
distasteful and embarrassing during her entire life.
Each broadcast of this film increases the accessibility of
this filmed episode and the potential intrusion of total
strangers into Hilary’s private affairs, causing her ir-
reparable harm. App. C, pp. 23a-24a.
Counsel also cited to the district court judicial prece-
dent and other authority for issuing an injunctive order
to prevent such private wrongs even if the matter en-
joined might otherwise be protected by the free speech
and free press guarantees of the First Amendment. And
the court took the testimony of Dr. Froning, which was
offered by the respondents. On cross-examination, Dr.
Froning acknowledged that it is ordinarily harmful to a
child to broadcast publicly the child’s account of sexual
abuse. In Dr. Froning’s opinion, publication was justi-
fied in this case only because Hilary had to be protected
from further sexual abuse (App. C, pp. 45a-50a).
8. The District Court’s Order
At the conclusion of the hearing, Judge Sporkin issued
an order that temporarily restrained the defendants
8
from broadcasting “‘the scenes of the program, Hilary
in Hiding, involving the minor’s description of alleged
sexual abuse.” Appendix B, pp. 3a-4a. The order was
entered “in view of the irreparable harm that would be
caused to the minor Hilary Foretich if the broadcast of
scenes involving her description of alleged sexual abuse
were shown as planned” (/d., p. 3a). The judge sched-
uled a preliminary injunction hearing for April 17,
1990, at which time he indicated that he wished to hear
more detailed testimony concerning the circumstances
under which the videotape of Hilary had been made
available to the BBC and the potential harms to Hilary
from its showing.
9. The Court of Appeals’ Action
Without hearing from either Dr. Foretich’s lawyer or
Hilary’s appointed counsel, the court of appeals at 8:45
p.m. issued a writ of mandamus vacating the temporary
restraining order. The court relied entirely on the legal
proposition that the order “constitutes a prior restraint
on the use of the video footage of Hilary Foretich” and
that because there is “‘a heavy presumption against its
constitutional validity’”’ such a “ ‘prior restraint’ ” must
be vacated. The court of appeals concluded that Hilary’s
only remedy is “in legal actions that do not require a
prior restraint in derogation of the First Amendment”
(Appendix A, p. la). On April 11, 1990, Chief Justice
Rehnquist denied petitioner’s application to vacate the
writ of mandamus and reinstate the temporary restrain-
ing order.
9
REASONS FOR GRANTING THE WRIT
The court of appeals summarily vacated the district
court’s restraining order in the mistaken belief that
every court order banning future expression is a pre-
sumptively unconstitutional “prior restraint.” In fact,
the order issued by the district court presented few, if
any, of the evils of advance censorship that have gen-
erated the constitutional “prior restraint” doctrine. This
Court should grant certiorari in this case to clarify the
“prior restraint” doctrine and to prevent its misapplica-
tion to other cases involving injunctions needed to pro-
tect private rights.
1. Not Every Order Affecting Future Expression Is
Presumptively Unconstitutional—The primary error of
the court of appeals was its assumption that Judge Spor-
kin’s temporary restraining order was a “prior re-
straint” with constitutional significance. Although the
order would have prevented a small fragment of a fu-
ture television broadcast, it was not censorship in the
classic sense.
Almost forty years ago, Professor Paul A. Freund
noted, in a landmark article, that “prior restraint” can-
not automatically be placed “in a special category for
condemnation.” Professor Freund concluded, “The gen-
eralization that prior restraint is particularly obnoxious
in civil liberties cases must yield to more particularistic
analysis.” Freund, “The Supreme Court and Civil Liber-
ties,” 4 Vand. L. Rev. 533, 539 (1951).
More recent commentators have arrived at similar
conclusions. E.g., Murphy, “The Prior Restraint Doc-
trine in the Supreme Court: A Reevaluation,” 51 Notre
Dame Lawyer 898 (1976); Blasi, “Toward a Theory of
Prior Restraint: The Central Linkage,” 66 Minn. L.
Rev. 11 (1981); Mayton, “Toward a Theory of First
Amendment Process: Injunctions of Speech, Subsequent
10
Punishment, and the Costs of the Prior Restraint Doc-
trine,” 67 Cornell L. Rev. 245 (1982); Jeffries, “Re-
thinking Prior Restraint,” 92 Yale L. J. 409 (1983);
Redish, “The Proper Role of the Prior Restraint Doc-
trine in First Amendment Theory,” 70 Va. L. Rev. 53
(1984); Smith, “Prior Restraint: Original Intentions
and Modern Interpretations,” 28 William & Mary L.
Rev. 439 (1987); Comment, “Indirect Gag Orders and
the Doctrine of Prior Restraint,” 44 U. Miami L. Rev.
165 (1989).
There is a world of difference between a carefully lim-
ited temporary restraining order preventing, for not
more than ten days, the nationwide broadcast of a sec-
retly filmed intimate conversation between a child and
her mother and a system of broad administrative censor-
ship or a sweeping court order that forever bans future
expression of a certain kind. The former may be the
only effective means of preserving a cherished personal
right of privacy and may have negligible impact on pub-
lic issues. The latter could chill or freeze the expression
of opinion or important issues of governmental policy.
2. Judicial Preservation of an Individual’s Right to
Privacy May Justify a Court Order Barring a Television
Broadcast.—In an instance such as this one—when spe-
cifically identifiable expression is only marginally related
to public issues® but its disclosure unquestionably results
in a serious private wrong—the proper and constitu-
tionally permissible remedy is an injunction against pub-
lication. This Court’s language in Near v. Minnesota,
283 U.S. 697, 709 (1931); Organization for a Better
Austin v. Keefe, 402 U.S. 415, 418 (1971); and Nebraska
Press Ass’n v. Stuart, 427 U.S. 539, 557-58 (1976), sug-
5It is precisely because the specific fragment of videotape at
issue, as opposed to the information conveyed by Hilary’s words
alone, has no particular public importance that this case is entirely
different from New York Times Co. v. United States, 403 1).S. 718
(1971).
11
gests that the “prior restraint” doctrine would not apply
in these circumstances.
The classic illustration of an injunction to protect the
rights of privacy, sustained by this Court, was the court
order prohibiting commercial distribution of a documen-
tary film taken at the Bridgewater State Hospital for
the criminally insane. Commonweaith v. Wiseman, 356
Miss. 251, 249 N.E.2d 610 (1969). The grounds for issu-
ing the injunction were that the privacy of individual
inmates of the institution was invaded by commercial
distribution of the film. Over a dissent by three Justices,
this Court denied a writ of certiorari. Wiseman v. Massa-
chusetts, 398 U.S. 960 (1970).
The Bridgewater film was surely far more relevant to
a “debate on public issues” than the four minutes of film
that the plaintiff sought to bar in this case. The present
segment of film relates entirely to a private meeting
between a 4-year-old and her mother. Nonetheless, the
Massachusetts court and this Court recognized in the
Bridgewater case that, when privacy rights are involved,
an injunction that might otherwise appear to be a “prior
restraint” is a suitable remedy.*
The principal decision on which the court of appeals
relied in this case, In re King World Productions, Inc.,
898 F.2d 56 (€th Cir. 1990), involved the claim of a
6 The same analysis was provided by District Judge Milton I.
Shadur (an expert on First Amendment law, see 632 F. Supp. at
1294, n.17) in his opinion in Huskey v. National Broadcasting Co.,
632 F. Supp. 1282, 1294-95 (N.D. Ill. 1986). The Huskey case in-
volved a lawsuit against a film showing prisoners in the United
States Penitentiary in Marion, Illinois. Judge Shadur denied a
motion to dismiss the complaint alleging invasion of privacy by the
broadcast of the film. He observed that the “prior restraint” doc-
trine did not necessarily bar injunctive relief that is “narrowly
tailored” to preserve a privacy interest. Judge Shadur held that
“prevention of a private wrong” is different from “an injunction
against publication of the communication of ideas.” 632 F. Supp.
at 1294.
12
doctor whose alleged malpractice and unethical conduct
had been viedotaped by investigative TV reporters. The
doctor sought to enjoin broadcast of the film on the
ground that the filming had violated the federal wiretap
statute, 18 U.S.C. § 2511. The Sixth Circuit held that the
kind of information being disseminated by the broadcast
—the ethics of a doctor with “a national reputation for
his diet program and medical practice”’—was “the corner-
stone of the free press clause of the first amendment.”
898 F.2d at 57.
This case is totally different. Hilary’s parents have
thrust themselves into the spotlight of substantial public
interest, and they themselves may have no right to pre-
vent a public broadcast of a surreptitiously recorded film
that embarrasses them or invades their own privacy. But
their child—-who was 4 years old when the film was made
and is 7 now—should not be sacrificed for the sins of her
parents.
Hilary has a personal right to privacy with regard to
the details of her allegations of sexual abuse that over-
rides the interests and expressed wishes of either of her
parents. In Morgan v. Foretich, 528 A.2d 425 (D.C. App.
1987), the District of Columbia Court of Appeals affirmed
the trial court’s decision to close the hearings of this
marital dispute to the press and the public. The appellate
court quoted and approved the trial court’s finding that
the allegations “are highly sensitive’ and that “if re-
vealed to the public would be embarrassing and damaging
to the child and the child’s reputation, now and in the
future.” 528 A.2d at 426. The court held that publica-
tion of the allegations to the world would compromise
“this innocent child’s right to privacy and freedom from
notorious public scrutiny” and would be “adverse to the
best interests of the child.” Id. Cf. Maryland v. Craig,
58 U.S.L.W. (June 27, 1990) (1990 U.S. LEXIS
3457) (Recognizing that a State’s interest in the pro-
tection of minor victims of alleged sex crimes “ ‘from
POOL chet ey PLA DLE ass. ne ol
AS TOME ends Sime a ae
13
further trauma and embarrassment’ is a ‘compelling’
one” (citation omitted) ).
Nor is this a case in which the material that invades
the plaintiff’s privacy has been cast into the public domain
by operation of law or by the actions of public officials.
In The Florida Star v. B.J.F., 109 S.Ct. 2603 (1989), a
newspaper was found to be constitutionally privileged to
print the name of a rape victim who had been fully iden-
tified in a publicly available police report. This Court’s
opinion made it clear that the result would have been
different if the government agency had not provided the
information that the newspaper publicized. 109 S.Ct.
at 2611-12. And the same principle governed the deci-
sion on which the majority relied in B.J.F.—Smith v.
Daily Mail Publishing Co., 443 U.S. 97 (1979).
There is simply no legitimate free press interest in
Hilary’s highly personal communication with her mother,
with whom she wanted to speak in total privacy. Dis-
semination of that conversation to the entire world is
nothing more than a “private wrong” that can and should
be enjoined.
3. The Issue Is a Recurring One Which Is Not Moot
and the Court of Appeal’s Ruling Affects the Ultimate
Relief Available—After the court of appeals ruled, the
offending fragments of the film were shown on national
television on the scheduled dates. The broadcast of the
film did not, however, moot the case or the constitutional
issue.
The respondents retain control of the film, and they
may choose to show it any time in the future. The court
of appeals’ ruling obviously prevents a judge from en-
joining any future broadcast.’ Moreover, by its very
7 Petitioner has now amended her complaint to seek damages for
the respondents’ invasion of her privacy. She has retained, however,
a claim for injunctive relief should this Court reverse the decision
of the court of appeals.
14
nature, a request for a temporary restraining order
against a television broadcast, if denied, will become moot
if review in appellate courts is not permitted after the
broadcast takes place. Hence this is a situation involving
the two circumstances justifying appellate review in this
Court even after “abatement of the underlying injury.”
See Lewis v. Continental Bank Corp., 110 8S. Ct. 1249,
1255 (1990); Meyer v. Grant, 486 U.S. 414 (1988) ;
Honig v. Doe, 484 U.S. 305 (1988), Murphy v. Hunt,
455 U.S. 478, 484 (1982).
CONCLUSION
For the foregoing reasons, the petition for a writ of
certiorari should be granted.
Respectfully submitted,
NATHAN LEWIN
(Counsel of Record)
STEPHEN L. BRAGA
DOUGLAS F. CuRTIS
MILLER, CASSIDY, LARROCA
& LEWIN
2555 M Street, N.W.
Washington, D.C. 20037
(202) 293-640!
_ , . )
Attorneus for Pet
Julv 1990
APPENDICES
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APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 89-7046
IN RE: LIFETIME CABLE and BRITISH
BROADCASTING CORP.,
Petitioners
[Filed April 6, 1990]
Before: Mikva, D.H. Ginsburg and Sentelle*, Circuit
Judges
Upon consideration of the emergency petition for writ
of mandamus, it is
ORDERED that the motion be granted. The district
court’s temporary restraining order constitutes a prior
restraint of the use of the video footage of Hilary Fore-
tich. Since a prior restraint has an immediate and irre-
versible impact, see Nebraska Press Ass’n v. Stuart, 427
U.S. 539, 559 (1976), “[a]ny prior restraint bears ‘a
heavy presumption against its constitutional validity.’ ”
In Re: King World Productions, Inc., et al., Case No.
90-1122, slip op. (6th Cir. January 29, 1990) (quoting
New York Times Co. v. United States, 403 U.S. 718,
714 (1971)). Any rights that Eric Foretich or Hilary
Foretich may have must therefore be redressed in legal
actions that do not require a prior restraint in deroga-
tion of the First Amendment. It is
FURTHER ORDERED that the district court’s tem-
porary restraining order entered on April 6, 1990 be
and is hereby vacated.
Per Curiam
* A separate statement by Judge Sentelle is attached.
2a
Sentelle, Circuit Judge, concurring in the grant of the
petition for writ of mandamus: Although I am deeply
concerned that mandamus not become a means to
render appealable temporary restraining orders, in the
case of prior restraint I find the necessary exceptional
circumstances to support issuance of this extraordinary
writ, for the reasons stated by the Sixth Cirevit in Jn
Re: King World Productions, Inc., et al., Case No. 90-
1122, slip op. (6th Cir. January 29, 1990).
38a
APPENDIX B
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Civil Action No. 90-796
(Stanley Sporkin )
Eric A. FORETICH, et al.,
Plaintiffs,
V.
LIFETIME CABLE, et al.,
Defendants.
ORDER
[Filed April 6, 1990]
On consideration of the plaintiffs’ application for a
temporary restraining order and the argument of counsel
appointed by the Court ad litem to represent the minor
involved in the film, and the Court’s examination of
portions of the film Hilary in Hiding that is scheduled
to be broadcast on April 6, 7, 14, and 19, 1990, by the
defendants, and the testimony of Dr. Mary Froning, and
in view of the irreparable harm that would be caused to
the minor Hilary Foretich if the broadcast of scenes in-
volving her description of alleged sexual abuse were
shown as planned, it is
ORDERED that the plaintiffs’ application is granted,
and it is further
ORDERED that the defendants are restrained from
airing, licensing or distributing the scenes of the pro-
4a
gram, Hilary in Hiding, involving the minor’s descrip-
tion of alleged sexual abuse until April 17, 1990, at
9:30 a.m., when the Court will hold a preliminary in-
junction hearing on this matter.
Dated: 4/6/90
/s/ Stanley Sporkin
United States District Judge
5a
APPENDIX C
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Docket No. CA 90-796
Eric A. FORETICH and HILARY FORETICH,
Plaintiffs,
Vs.
LIFETIME CABLE and BRITISH
BROADCASTING CORPORATION,
Defendants.
Washington, D.C. April 6, 1990 9:55 a.m.
TRANSCRIPT OF MOTION FOR TEMPORARY
RESTRAINING ORDER BEFORE
THE HONORABLE STANLEY SPORKIN
UNITED STATES DISTRICT JUDGE.
APPEARANCES:
For the Plaintiffs: KLAINE MITTLEMAN, Esq.
For the Defendants: LEE LEVINE, Esa.
6a
[2] INDEX
_
Witnesses for the Plaintiff: Direct Cross Redirect Recross
Mary Froning 45 53 — —
Exhibits: Marked Received
Plaintiff’s Exhibit No.1 40 40
Defendant’s Exhibit No. 1 48 48
Defendant’s Exhibit No. 2 52 52
7a
[3] PROCEEDINGS
THE DEPUTY CLERK: Eric A. Foretich, et al.
versus Lifetime Cable, et al., Civil Action 90-796. Elaine
Mittleman represents the plaintiff. Lee Levine repre-
sents the defendant.
THE COURT: [I'll hear the plaintiff.
MS. MITTLEMAN: Good morning, Your Honor.
Elaine Mittleman for—
THE DEPUTY CLERK: Please come to our lectern.
MS. MITTLEMAN: Your Honor, Linda Holman, who
is the Court appointed guardian ad litem for Hilary is
ill today, and she can’t be here.
THE COURT: Go ahead.
MS. MITTLEMAN: We have asked for what is well
acknowledged to be an extraordinary remedy which would
be the—we structured our request as narrowly as pos-
sible to omit the screening of tapes involving Hilary
herself on this upcoming Lifetime Cable.
One segment of the tape in particular to the best of
my knowledge has not been seen on any other program
besides this Lifetime Cable. It was produced by the BBC,
which shows Hilary under her mother’s control discussing
really in a very offensive manner. I mean it is pathetic
for this child to be subjected to this, specific sexual acts.
She points to her own body parts. She refers to her
father’s genitals. It has no redeeming social value
whatsoever.
[4] It is not enlightening to the public. It is inflam-
matory. It appeals to the prurient interests, and it is an
utter invasion of Hilary’s privacy. It does not edify
the public.
THE COURT: Are you arguing on behalf of Hilary?
I don’t understand who—what your standing is?
MS. MITTLEMAN: I represent Dr. Foretich. I
would be glad to speak on behalf of Hilary as well.
There has been some controversy, confusion, whatever you
want to call it, as to Hilary’s legal representation. I
8a
am now representing her in another legal action, but in
a third legal action, Judge Gesell just recently ruled
that since she had a guardian ad litem, it was up to the
guardian ad litem to represent her.
Now, under the Rule 17(c), a child, if she has a
cause of action, you know, the Court has its authority to
appoint someone to represent her. And from the cases
I read, if it is felt that the person coming forward is
adequate, the Court, you know, can accept that person
as the child’s representative.
Linda Holman’s appointment was pursuant to the
visitation in the Superior Court.
THE COURT: That’s the problem I have. I don’t
know where the standing is here, quite frankly, because
I didn’t appoint any guardian ad litem.
MS. MITTLEMAN: Well, that’s correct, and that
was [5] just the issue in front of Judge Gesell. And
my position, frankly, is different than what Judge Gesell
ruled. I’d be glad to—
THE COURT: Well, has Judge Gesell been in this
case?
MS. MITTLEMAN: No, but we have a case in which
we are suing Glamour, and I’ve got the opinion if you’d
like to see it.
THE COURT: You’re suing who?
MS. MITTLEMAN: Glamour Magazine, under def-
amation, and we sought to add Hilary as a plaintiff,
and Dr. Foretich as her next friend, and Judge Gesell
just ruled that she already had a guardian ad litem.
But as I said, in another case where we have just a
standard tort case, I am her attorney. So we’ve had
conflicting rulings on that.
THE COURT: You are her attorney? Appointed
by whom?
MS. MITTLEMAN: I’m not appointed by anybody.
We have yet another case in front of Judge Henry
Green in which we are suing under traditional tort
cases. We’re suing Dr. Morgan and a variety of the
9a
experts, and Hilary is a plaintiff in that case. I am the
attorney for Hilary in that case, and that has—
THE COURT: Well, who hired you in that case?
MS. MITTLEMAN: Dr. Foretich.
THE COURT: Hired you to represent Hilary.
MS. MITTLEMAN: Well, I’m representing him as
well. [6] I’m representing him, Hilary and his parents.
THE COURT: Well, you see, here’s my problem.
MS. MITTLEMAN: Linda Holman, who is Hilary’s
attorney, guardian ad litem, joins in this request.
THE COURT: But did Judge Gesell rule that a
guardian ad litem appointed in another court action
could have standing in his action?
MS. MITTLEMAN: No, he didn’t. May I read you
his—
THE COURT: Sure.
MS. MITTLEMAN: I just got this yesterday.
THE COURT: Is this a related case, by the way,
Betty?
MS. MITTLEMAN: I don’t think it could be consid-
ered a related case. I mean I don’t know how broadly
you want to define related.
It says, “Under Rule 17(c), this provision is not
applicable under the circumstances of this case. In the
course of the continuing dispute over Hilary, the Su-
perior Court appointed a guardian ad litem to protect
Hilary’s interest. Plaintiffs do not dispute this point.
The battle over Hilary continues in the Superior Court.
It would be wholly inappropriate to recognize either
parent as an appropriate guardian in any case.”
So that’s where that was left.
THE COURT: Well, I understand that. But my
problem [7] is that they have appointed—as I understand
the guardian ad litem, is that that was appointed for
that particular case.
MS. MITTLEMAN: That would be my understand-
ing as well.
10a
THE COURT: And it would seem to me that if
anything, I would have to appoint somebody.
MS. MITTLEMAN: I think that would be an ac-
ceptable alternative, and that would be something I
would—
THE COURT: But as this point we don’t have the
time to appoint and, you know, I don’t know how I could
make that appointment without having all the interests
represented.
MS. MITTLEMAN: That’s right. There are cases,
as I said, in which the parent’s attorney was—or else
in another case, I don’t remember the name of it, but
where teachers sued on behalf of retarded children and
they were allowed to go forward because the Court said
they were skilled at doing that.
THE COURT: Well, let’s get by that. Let’s get
to the issue in this—the other issue in this case. As I
understand from the papers that just came in, this
television program has already been shown in the United
States?
MS. MITTLEMAN: That’s correct, Your Honor. It
was aired once. The first time I saw the tape was two
days ago. Dr. Foretich, as you may know, was in New
Zealand for about three weeks, and I wasn’t really able
to confer with him, and it is our position that this up-
coming four planned showings [8] have been widely
publicized and, you know, it’s on the newsletter. It’s
on the media, and—
THE COURT: How did they get the tape? Do you
know?
MS. MITTLEMAN: That I don’t know. I assume it
came from the BBC. It was a BBC production. It was
aired in Britain. It was enjoined—to the best of my
knowledge, it was enjoined in New Zealand from being
aired.
THE COURT: It has been enjoined in New Zealand?
lla
MS. MITTLEMAN: That’s my understanding. New
Zealand, as everyone has been saying, has different laws
than we do.
THE COURT: Where was this shown in the United
States?
MS. MITTLEMAN: It was under the Lifetime Cable,
I believe.
THE COURT: It was shown on the same—
MS. MITTLEMAN: My understanding is the Life-
time Cable licensed this program from the BBC. The
BBC produced it.
THE COURT: Soit’s already been shown once?
MS. MITTLEMAN: Right. Now, on that point, I'd
like to say something, if I could. Under the Pentagon
papers cases, to the best of my ability to read the opin-
ions, there were simultaneous actions in New York and
here about the release of those papers. And both Courts
went forward and different newspapers had released dif-
ferent amounts of materials and I [9] think this Court
even acknowledged that, well, we know some of the stuff
has already been printed somewhere else. It might go
to the L.A. Times or who knows where. That didn’t seem
to be significant.
In other words, it is still a republication, if you will,
and on that point, I’d also like to mention something
about Judge Gesell’s opinion, which is that on Glamour
Magazine, it has been alleged that they gave permission
to the friends of Elizabeth Morgan, who are the same
people that are touting this program, and they distributed
it to Glamour Magazine, and Judge Gesell said that that
could be a republication under defamation. So I’m say-
ing—
THE COURT: We’re not talking defamation. You
still have that claim.
MS. MITTLEMAN: That’s right.
THE COURT: You’re not going to lose that claim.
MS. MITTLEMAN: No, but my point is that four
more screenings of Hilary is just four more times to have
her privacy invaded. People are on notice now. They
12a
can tape this thing, keep it in their libraries. The Ferber
Court emphasized that putting these child—you know,
the visual images of children in the mass media is a per-
manent record. It’s not just a one time thing.
THE COURT: What are the particular problems?
Can you do it quickly to show me what it is that you’re
complaining |10] about?
MS. MITTLEMAN: Yes, I’d have to find the spot on
the tape, but it’s only a limited segment of the tape that
is particularly offensive.
THE COURT: How long is the tape?
MS. MITTLEMAN: The whole tape is I think about
40 minutes.
THE COURT: No, I don’t want to see the whole tape.
MS. MITTLEMAN: No, no, I didn’t—what?
THE COURT: Can you just get to the right part?
MS. MITTLEMAN: I think it’s somewhere in the
middle of the tape. Is there some way—I’m not—
THE COURT: Who set that up? Is that your tape?
MS. MITTLEMAN: I think it’s Mr. Levine’s tape.
MR. LEVINE: Your Honor, we will be specially ap-
pearing for the defendant. We provided the tape. I think
the Court set up the tape machine.
THE COURT: Do you know how to get to the right
parts? =
MS. MITTLEMAN: I think we can fast forward it.
I could clarify, there are two different tapes of Hilary.
One of the tapes, Mr. Levine is correct, was seen on other
shows, and it really isn’t as offensive as the tape with
the specific—I mean if you want to get the most narrow
limiting, it’s the one with the specific body parts that are
offensive.
[11] THE COURT: I just want to see what you are
complaining about.
MR. LEVINE: It will probably take a few minutes,
Your Honor.
MS. MITTLEMAN: If you want me to, I can try to
fast forward it while they are talking if that will help.
13a
THE COURT: Well, Tom, you know how to use that
machine, don’t you? Go ahead. Help her. You do it for
me. Go ahead. You can do it for them. Come on. Do I
have to get you an order?
(Brief pause. )
MS. MITTLEMAN: This is it, Your Honor.
(Whereupon, the videotape was shown in the court-
room. )
MS. MITTLEMAN: I was just going to say, to the
best of my understanding, that man is Dr. David Corwin,
who was one of Dr. Morgan’s expert witnesses, and the
woman next to Dr. Morgan is Mary Froning, who is
described as Hilary’s therapist, who is a_ psychologist
and have participated in the litigation throughout, and
as far as I know, this was not admitted into evidence by
any Court.
(Whereupon, the videotape was continued to be shown
in the courtroom. )
MS. MITTLEMAN: I believe that’s the sum of the
most offensive tape. Now, I'd like, if I could just say
something, if that is convincing to anyone of the reality
of the [12] charges—
THE COURT: That’s bad stuff, I admit that.
MS. MITTLEMAN: It’s staged. It would be like
third hand hearsay, you know, under the Rules of Evi-
dence, according, you know, I mean it doesn’t go to the
truth of the facts, and it has no—its content is of no
value. It is not informing the public and the way I read
the Supreme Court cases, including New York Times
versus—I mean the Pentagon papers case, it isn’t a ques-
tion—Ii was surprised at this myself, but under what is
considered obscenity. which with children is a broad defi-
nition of obscenity, it is considered outside the First
Amendment. It is not considered prior restraint.
Justice Brennan stated that in—
til
l4a
THE COURT: Are you arguing that this is obscene?
Is that your argument?
MS. MITTLEMAN: I’m arguing that it’s represent-
ing—it’s showing a child referring to sexual acts, refer-
ring to her father’s genitals, having her point to body
parts which are purportedly describing sexual acts. It is
certainly concerning sexual acts of a child, and, you know,
there is great concern now with revealing the names of
women, adult women, rape victims, much less having
them act it out on camera. I find subjecting a child to
that is totally offensive.
I mean if that were my own daughter, I don’t know
what I would do. It serves no—it has no value. It serves
[13] no purpose besides further the claims of Dr.
Morgan, which have not prevailed in Court, and it’s com-
pletely abusive of Hilary’s rights.
THE COURT: Thank you.
MR. LEVINE: Your Honor, Lee Levine appearing
specifically for the defendants. I’d just like to make a
few points that do not go to the substance of the broad-
cast.
First, as Your Honor has pointed out, I have severe
questions about whether there is any standing here.
When you are asking for the kind of extraordinary relief
that we’re talking about here, the guardian is not present
in the courtroom.
THE COURT: Can’t I appoint a guardian?
MR. LEVINE: I suppose the Court has the power to
do that. However, there has been no indication that any-
one acting on behalf of the child has suggested that this
broadcast should be enjoined.
THE COURT: Well, the father. You don’t think a
father has an interest?
MR. LEVINE: I think the father has an interest,
but I also think that there has been a guardian appointed.
The guardian is not here.
THE COURT; But that guardian is appointed in an-
other matter. I think I have the right with the father
15a
coming in here and saying that the child’s interests are
being abused, [14] but I mean that’s pretty bad stuff.
MR. LEVINE: Your Honor, that stuff has been
broadeast on several prior occasions. A prior restraint
here would do absolutely no good to protect the interests
that they are seeking to protect here.
THE COURT: How did you get the video?
MR. LEVINE: From my client.
THE COURT: And who did your client get it from?
MR. LEVINE: From Dr. Morgan.
THE COURT: Who?
MR. LEVINE: From Dr. Morgan, who is the child’s
mother.
THE COURT: Boy.
MR. LEVINE: Your Honor, this same information,
this same exact broadcast was broadcast in early March
all over the United States on this cable network. Before
that broadcast, as the declarations that we’ve submitted
demonstrate, Ms. Mittleman was in contact with the cable
company.
THE COURT: The fact that it has been broadcast
once, does that mean that the child doesn’t have a right
after that? I mean, here’s the problem as I see it from
your standpoint. Here you have an innocent little babe,
a child, who I’m just wondering in the interest of that
child should this be broadeast? And I don’t see how the
mother can exercise those rights for that child. I really—
I must tell you that I am very [15] troubled by this.
MR. LEVINE: Your Honor, I would submit that to
the extent that the Court is troubled, there are legal
remedies involving subsequent awards of damages that
are available. The law of prior restraint is very clear,
that once publication has been made, especially in this
case. We’re not talking about simply one prior broadcast,
albeit nationwide of this particular program—
THE COURT: But then what you’re arguing is there
has been no prior restraint. It’s been broadcast once.
But are you saying to me that if there is after a trial
16a
and the child’s rights are so paramount that this thing
should not be broadcast again that a Court can’t issue as
part of its relief an injunction?
MR. LEVINE: I think under the circumstances of
this case, I would say you cannot, Your Honor. I would
say that in the first place the information has been
broadly disseminated already. Second of all, the domicile
of this plaintiff is the Commonwealth of Virginia, which
does not recognize the tort of invasion of privacy.
Second of all, even if it did, there is a well recognized
exception to the tort of invasion of privacy when the mat-
ter broadcast is of public interest.
THE COURT: That’s a public interest?
MR. LEVINE: Your Honor, Ms. Mittleman referred
to [16] the concern over the identity of the publication
of names of rape victims. The Supreme Court last term
in the Florida Star versus B.J.F. case, specifically said,
so long as it deals generally with matters—
THE COURT: Well, let me tell you what I think I’ve
got to do here before I make a decision. I want to ap-
point somebody in the interest of this child, and we got
to do it quickly, I realize. When is this supposed to be
broadcast, tonight?
MR. LEVINE: This evening, Your Honor.
THE COURT: Well, let me—I don’t know who to ap-
point. I mean this is going to be a pro bono situation
obviously. I can’t pay anybody, but I do want to hear
somebody with the interest of the child, other than with
the respect to the plaintiff here. But I have to get some-
body. We’ll have to schedule this for later this afternoon.
MS. MITTLEMAN: Your Honor, may I make one
point?
THE COURT: Surely.
MS. MITTLEMAN: These cases have had a lot of
jurisdictional questions and although it is true Dr.
Foretich resides in Virginia, I would say that Hilary,
although she’s in New Zealand now, her residence, at
least it was before she was abducted away, it was the
17a
District of Columbia, so this is where the Courts have
dealt with her.
THE COURT: Who is a prominent preeminent First
[17] Amendment lawyer in this city that I could ap-
point?
MR. LEVINE: Your Honor, I’m trying to think of
one.
THE COURT: Iknow of Abrams in New York.
MS. MITTLEMAN: That’s what I was going to say.
THE COURT: But I think he might have a conflict.
MS. MITTLEMAN: A lot of major firms are already
involved.
THE COURT: Griswald, and he’s here in town; isn’t
he? Maybe I could call him.
MS. MITTLEMAN: That firm would not have had
any conflicts in this case. -
THE COURT: P. Griswald. Anybody in the schools
around here?
MR. LEVINE: Your Honor, may I make a recom-
mendation?
THE COURT: Sure.
MR. LEVINE: Barrett Prettyman at the Hogan and
Hartson firm.
THE COURT: He’s good.
MR. LEVINE: He argued the Nebraska Press Asso-
ciation case in the Supreme Court.
THE COURT: Okay. Let me see if I can get some-
body in her interest.
MS. MITTLEMAN: Your Honor, J think that’s an
excellent suggestion. I would support that.
THE COURT: How about Lloyd Cutler?
[18] MS. MITTLEMAN: Wilmer, Cutler, Pickering
is Dr. Morgan’s attorney.
THE COURT: Oh, I’m sorry. He’s Morgan’s attor-
ney.
MS. MITTLEMAN: Does the name of Kevin Bain
mean anything to anybody?
MR. LEVINE: Your Honor, the problem I’m having
is that most First Amendment lawyers in this town are
18a
engaged in litigation with Ms. Mittleman on behalf of
Mr. Foretich defending various—
MS. MITTLEMAN: Which leads me to a point that
I was also hoping to make, which is that I agree that
normally damages after the fact, that’s the standard
First amendment thing, but we'll be suing from now
until doomsday.
THE COURT: That’s just pretty rough stuff, and
my point is that if this kid has any rights, they ought to
be—whatever, they ought to be protected. Again, I’m not
the First Amendment authority. I might become one
after this case, but I do know from the little that I’ve
read, that the Courts do take some great pains when a
child is involved. And, indeed, they have passed all kinds
of legislation protecting children.
The FCC doesn’t allow certain shows at certain times,
So we do have a very delicate matter here, which has got
to be protected.
MS. MITTLEMAN: On that point, it occurred to me
that since this was produced by the BBC, I wonder if a
domestic [19] company may not have even been willing
to put that on the air. I mean, that may be—
THE COURT: Well, what’s that mean? I—
MR. LEVINE: Your Honor, may I have a word?
THE COURT: Surely.
MR. LEVINE: If the Court feels most comfortable
appointing a guardian, obviously that’s fine with the de-
fendants. But may I respectfully suggest that even as-
suming that Hilary—+that there is an invasion of privacy
here and that Hilary has an interest that is due to be
protected, I must respectfully submit that this Court
simply has no authority to issue a prior restraint.
Ms. Mittleman’s—the basis for her claim that the prior
restraint doctrine doesn’t apply is that this is child porno-
graphy under the Ferber case. The Ferber case, which
we have submitted a copy to the Court, makes two
points—
xt nce
19a
THE COURT: Look, believe me, I understand prior
restraint a little bit. But I am not convinced that when
a child is involved, when a session—when she’s involved
with a doctor, and that doctor videotaped that which
whether she was agreeable to that or not, I don’t know.
And then when they use that videotape for purposes other
than it was designed for and to say that that child does
not have an interest—
MR. LEVINE: I’m not suggesting that the child
doesn’t have an interest.
[20] THE COURT: Let me ask you. Suppose there,
for example, there was a parent put a kid into prostitu-
tion, a youngster what, four years old. Are you saying—
and then they took pictures of the kid. Are you saying
that that child would not have any interest in having
her rights vindicated?
MR. LEVINE: I’m not suggesting that at all.
THE COURT: Are you saying that a prior restraint
would not lie there?
MR. LEVINE: If we were here in the District of
Columbia, Your Honor, and the District of Columbia or
Congress passed a statute that empowered Courts to is-
sue prior restraints pursuant to a specifically defined
kind of sexual act that constituted in the judgement of
the legislature child pornography, the Ferber case would
say that there was no First Amendment protection and
that an injunction could issue.
But the Ferber case says—
THE COURT: I'll appoint you as guardian. You
made a very powerful argument.
MR. LEVINE: The Ferber case says in the absence
of a legislative enactment specifically defining child por-
nography and in the absence of the kind of definition of
child pornography that you just described, a child en-
gaging in actual sexual conduct with lewd exhibition of
the genitals and that sort of thing that a Court does not
have power to override the First Amendment protections
at stake.
20a
\
[21] THE COURT: I don’t understand why—how
does a statute amend the Constitution? Why is it that
a statute can be so powerful, but a Court’s decision can-
not be as equally as powerful?
MR. LEVINE: Because, Your Honor, the Ferber
case, which is the case upon which she relies, starts from
the premise that the explicit sexual conduct depicted in
that case did not rise to the level of obscenity if it had
been adults involved. And the Court was asked to ad-
dress the question of can it nevertheless be penalized,
and I should point out that’s not even a prior restraint
case. That’s a subsequent punishment case, but the
Court was asked to decide whether, even though it didn’t
rise to the level of adult obscenity, could it still forfeit
its protection under the First Amendment, and the Court
said, yes, but only under one circumstance, where a legis-
lature has thought about it and defined it and declared it.
THE COURT: All right. Let me—we will reschedule
this for 5:00 tonight, and I hope you’ll be in touch—
who is handling this? David or Susie, are you handling
this? Either David or Ms. Cohen will be in touch.
Let me take a few minutes. I want to see if I can get
one of these people. Is Prettyman—are both of you sat-
isfied with Prettyman or Griswald?
MS. MITTLEMAN: Yes, Your Honor.
[22] MR. LEVINE: Fine, Your Honor.
THE COURT: All right. Thank you.
(Brief recess. )
THE COURT: We’re back on that case. Let me tell
you what I’ve done. I’ve appointed Mr. Nathan Lewin of
Miller and Cassidy as the guardian ad litem, but we
have to get all the documents over to his place imme-
diately. So who can—including the tape. Who can—
MR. LEVINE: We can take it over.
THE COURT: Would you do that?
2la
MR. LEVINE: There is only the one copy of the
tape.
THE COURT: Could you do that? We got to call—
who do we have to call? We have to call Ms. Mittleman
to tell her, and I don’t mind either one of you filling him
in. I don’t have any problem with that.
MR. LEVINE: Is he expecting us?
THE COURT: Well, would you call him and tell
him? He’s expecting all the papers. The only thing is to
get them over as quickly as possible.
(Recess from 10:45 a.m. until 4:20 ».m.)
THE DEPUTY CLERK: Eric A. Foretich, et al.
versus Lifetime Cable, et al., Civil Action 90-796.
THE COURT: Mr. Lewin, as the first order of busi-
ness, do you have any objection of my appointing you
guardian ad litem in this case?
[23] MR. LEWIN: No, Your Honor, I have no ob-
jection.
THE COURT: All right. And I want to thank you
so very much for being willing to take the appointment
in the best traditions of the legal profession on an ab-
solutely pro bono basis.
Now, I guess I want to hear from you. I’ve heard
from the other parties today. You’re the only one I
haven’t heard from.
MR. LEWIN: Well, Your Honor, just let me say that
since I was advised this morning by Your Honor, I have
met with the counsel for the parties who were kind
enough to come to my office and provide me with the doc-
umentation and with the film regarding .this particular
action, and I had a brief telephone conversation as well
with Dr. Froning, who I think the defendants have an
affidavit that they are filing with the Court from Dr.
Froning and she told me that in substance on the phone
as well.
Let me say to Your Honor that—
THE COURT: Who is Dr. Froning? Is she in the
picture?
22a
MR. LEWIN: Yes, she’s in the picture. She’s the
psychologist who apparently examined—
THE COURT: Let me just read this for a second.
(Brief pause. )
THE COURT: Fine. Thank you. I’ve read it.
[24] MR. LEWIN: And let me just say, Your Honor,
that in the limited time, of course, that I have had since
being advised this morning and appearing here this af-
ternoon, I have viewed it as being my function in terms
of being appointed by the Court to represent the inter-
ests of Hilary, not to really make any evaluations or
judgments of as it were the global battle, which I cannot
do certainly within the limited period of time that’s
available,—
THE COURT: Neither can I.
MR. LEWIN: —the battie between Drs. Foretich
and Morgan.
THE COURT: That’s why you’ve been appointed. I
need somebody who is going to represent this child.
MR. LEWIN: Yes, Your Honor.
Well, let me say that having viewed the film and hav-
ing considered the law in the area, I believe on behalf of
Hilary that the Court should issue an order enjoining
the showing of at least what amounts to I think two and
a half minutes of this film, because there are two and
a half minutes of it which I believe do invade the privacy
rights of this child, and which I think under existing law
there is authority for the Court to issue an order that
would enjoin the showing of those two and a half min-
utes and there are another approximately minute and
a half where the child or her voice appears in the film,
and which I must say is not as invasive of her privacy
[25] rights, but nonetheless, I think certainly does her
no good, and in the long run may prove to be embar-
rassing to her, which on her behalf, I would also request
that the Court enjoin, but not with the compelling na-
ture, I think of the two and a half minutes.
23a
THE COURT: What was the other minute? The one
I saw, the one that bothered me extremely is the one with
the mentioning of the private part of the human being
and telling where that part gets placed. That to me—
MR. LEWIN: Yes, Your Honor, that is—
THE COURT: That’s the part you’re agreeing to?
MR. LEWIN: No, that I believe ought to be enjoined.
THE COURT: Yes.
MR. LEWIN: Yes, definitely. That’s I think the
most clearly invasive of her privacy rights. They are
really three separate little segments which are just tied
together I think by narration of Dr. Morgan in between,
first a minute and approximately 38 seconds, then ap-
proximately 46 seconds and then approximately 35 sec-
onds, all of which take place apparently in the psychol-
ogist’s office, and I must say under circumstances which
indicate to me from the introductory statements that the
child believed she was in privacy with her mother, that
there was nobody else who was watching at the time.
She had asked that the doctor leave and everybody
[26] else leave, and I think she was not aware that this
was being videotaped. Consequently, she was engaged in
what was a private conversation which to this four
year old was a conversation with her mother.
She then described using dolls in some graphic detail
what I thing she was recounting was episodes with her
father. First, an episode that she had with her father,
then an episode, the second portion, that her sister had
with ker father, and then the third again with her
father. Those are I think particular events which I must
say given today’s technology, if this were to go out on
public—I understand it’s been shown one time, but it
gets more publicity I think every time. If it goes out
on television, there is, of course, the facility for any-
body in the world to tape it. If appears on public tele-
vision. It appears on television to the public.
So anybody can record it, and simply this recording of
these very private moments that this four year old had
24a
with her mother, I think would be available 10, 15 years
from now to haunt her at any time that she goes, any
place that she goes. People can play this recording back
to her where she thought she was speaking privately
with her mother.
Consequently, I believe that in her interest, her pri-
vacy interest, I know that the plaintiff has made a claim
based on obscenity or pornography. Our view on behalf
of Hilary is that there is quite a different rationale
here, which [27] is one of privacy interests that would
entitle the Court I think under the prior restraint cases.
There is a very strong line certainly of cases that say
that Courts may not issue prior restraints, but what they
cover are by and large matters of political discussion or
of public attention. There is a very fine discussion in
a case called Husky versus National Broadcasting Com-
pany in the Northern District of Illinois decided in 1986
by Judge Shadur, if that’s the way he pronounces his
name, S-H-A-D-U-R, and particularly pages 1294
through 1296. There is a discussion of the availability
of injunctive relief, prior restraint when there is an in-
vasion of privacy.
In addition, there was a celebrated instance involving
a film called Titticut Follies, which was a documentary
of events at Bridgewater State Hospital, where the State
of Massachusetts successfully obtained an injunction
against the showing of that film, because it invaded the
privacy of the inmates of the institution. The Supreme
Court denied certiorari. The case is reported at 249
Northeast 2d. 610, and the denial of certiorari is at 398
US 960.
And if I had to find parallel situations, there are pa-
rallel cases where even the Court of Appeals for this
Circuit directed that portions of tapes that were pub-
licly available and that there was a public interest in be
redacted so that privacy not be invaded.
\28] Specifically at the time of the ABSCAM eases,
there were, as I’m sure Your Honor will recall, there
> scene anaeielll
25a
were tapes that were taken of various Congressmen and
others who were charged and convicted, and the Court of
Appeals here said in a case reported at 653 F. 2d. 609
at page 619, when it authorized that they be made pub-
lic, that the possible injury to innocent third persons is
a factor that may properly be taken into account by the
District Court in passing upon applications to copy and
make such records public, and that, therefore, it would
be appropriate to require that wherever there would be
an invasion of injury to innocent third persons that the
tapes be redacted or amended so that those portions are
removed.
And on the basis of those authorities, it appears to
us, it appears to me as counsel for Hilary, that there is
ample authority for this Court to say that when there
is an invasion to privacy and when it can be very spe-
cifically designated what it is that has to be removed
from the film because of the invasion of privacy, this
Court can issue an order that says that those portions
that relate to Hilary should be enjoined.
The rest of the firm is a matter of public interest. The
parties are there, but at least those portions that relate—
that show her in there very private moments with her
mother discussing these matters we think should be en-
joined, should not go out to the public, because it would
harm her privacy interests.
'29| Ithink the fact that she’s not in the United States
today is a factor that certainly lessens the interest some-
what, but I think the fact that this is available gener-
ally is going to harm her in the future, and, therefore,
as an attorney whe is here and is not obviously able
either to speak with my client, but nonetheless, trying to
present to the Court the interests om behalf of this child,
I think that there is authority and basis for issuing such
an injunction, and I would request that it be done.
THE COURT: Have you drafted papers along those
iines, Mr. Lewin?
26a
MR. LEWIN: Unfortunately, given the time, we
have not.
THE COURT: All right. I want to hear. I’m just
saying in case I issue it whether—all right. The first
time I think I’ve ever caught you asleep.
Go ahead.
MR. LEVINE: Your Honor, a few housekeeping
matters first. With me at counsel table at the end of
the table is Larry Scharff, who is a partner in the Reed,
Smith firm here in Washington.
THE COURT: Pleased to have you.
MR. LEVINE: He’s general counsel to the Radio,
Television News Directors Association and they are here.
Given the short notice, they haven’t had a chance to file
any papers, {30] but they are here as amicus in sup-
port of the defendants.
In addition, we’ve handed up to the Court and filed
with the Clerk this morning two declarations, one that
Mr. Lewin referred to from Dr. Froning and the other
one from Mr. Lambert who is the producer of the pro-
gram in Britain.
I’d like to spend a minute talking about what is in
those declarations because I’d like to emphasize to the
Court that the moving parties here, Mr. Lewin, because
of the shortness of time, Ms. Mittleman for reasons I
don’t quite understand, have made absolutely no, zero,
evidentiary showing, other than the fact that we brought
the broadcast and showed it to the Court.
We seem to have been focusing on one question here
which is the question of whether—
THE COURT: I would think that the father has
some rights as to his daughter. I mean if you can’t
understand it, I’ll explain it to you.
MR. LEVINE: No, no. I can’t understand why
they’ve made no evidentiary showing when they are ask-
ing for the extraordinary relief of an injunction and
that’s my point. And the point that I am trying to make,
Your Honor, is that we have provided to the Court an
27a
affidavit from a psychologist who has examined Hilary
on some 80 some odd occasions who is of the view clin-
ically that there is nothing wrong with this broadcast
and it is not invasive of her privacy, and I would ask
the [31] Court to pay due regard to that.
Your Honor, the trouble that I’ve had with this pro-
ceeding today is basically the Court has reacted, Mr.
Lewin has reacted, I think many reasonable people react
to this broadcast by saying, this is offensive. I don’t
like it. I wouldn’t broadcast it. I don’t think it should
be shown.
With all due respect to Mr. Lewin and to ail the rest
of us, unless there is a legally cognizable cause of action
that empowers a Court to say I can make the decision
for the editors in this case, and I can decide and_ not
leave it to the editors under the First Amendment to
decide whether this should be broadcast, and unless there
is a legally cognizable cause of action that authorizes
a prior restraint in this setting, I think that there isn’t
much any of us can do about it, other than leave Hilary
and Dr. Foretich to their remedies at common law.
THE COURT: You see, the problem you have is how
you phrase the issue. And it reminds me of the story
that Justice Scalia once said—once told about he was in
a—a young priest who liked to smoke was talking to
another priest who also liked to smoke, and he asked
the priest, he said, well, you know, I don’t understand
how you get away with this. When I’m smoking, the
Father in charge tells me I can’t do it. And he says,
what you did, he says, you asked the wrong question.
(32) He said, what happened, you probably said, is it
all right to pray while I’m smoking, and what the ques-
tion should be is it all right to smoke while praying.
And so you see, you get to the point of how you ask—
the other thing is is the glass half filled or is the glass
half empty.
The point that I’m trying to make is and I think
what Mr. Lewin, who I think you know, I asked him
ES
28a
this morning to come in as objective as he knew how.
I don’t think we spoke more than a couple of minutes
because he said he was busy doing a lot of other things,
and he said, just get the papers over. And I told both
of you to go over and talk to him as much as you like.
But the concern I have is really not with the first
amendment. The concern I have is with this young
child. If you start asking what is in this child’s best
interest, and it seems to me that this child’s rights have
been—possibly been extremely violated here. The child
doesn’t know what’s going on. What can this little child
consent to?
Let’s assume some pornographer went out and took
pictures of this, as I mentioned to you this morning,
and to say that there is no way to remedy a situation
such as that and to say that the First Amendment rears
its wonderful head and says that that is not—cannot be
dealt with is terribly, terribly troublesome. That’s the
problem I have with this case. It’s the child’s interests
and the child’s rights and [33] for—I cannot see how,
and I’ll give you your opportunity, but how is the in-
terest of this child being protected here?
And let me just go one step further. Let’s just go
with me along this line. Let’s suppose we have, as we
do here, a full lawsuit, and let’s suppose that this child
is now suing to have her rights vindicated, and let’s
suppose that a Court should find that her rights have
been violated.
Now, are you trying to tell me that at the end of that
trial and case, and a Court is saying I’m going to issue
relief, to say that that child can—I think you would
agree would be able to get some money damages from
somebody, but to say that you couldn’t withdraw that
film from the public view, I think that would be in
keeping with our traditions in the law. That is a proper
measure of an equitable relief and could be granted as
damages or conceded as damages by the Court.
29a
That’s the way that I see it, and I don’t see it as
this—how is the First Amendment vindicated here by
showing this tape?
MR. LEVINE: Your Honor, let’s put the First
Amendment aside for just a second and go with just
your hypothetical. We have a lawsuit. A complaint comes
in. Let’s say it alleges invasion of privacy, and I come
in here and I bring a motion to dismiss. And I say to
Your Honor, Your Honor, the District of Columbia—
let’s assume Hilary lives in the District of Columbia and
the District of Columbia is involved [34] here.
The District of Columbia has issued a decision saying
that we don’t recognize the tort of invasion of privacy.
That’s what the District of Columbia Court of Appeals
has said. I think in that situation you have to say, gee,
I think this is terrible and I think it is really bad that
Congress—
THE COURT: I said we’ve been talking invasion of
privacy, but I don’t think that that is the sole cause
of action that we’re talking here. You’re talking about
giving something a label. I don’t know, again, what my
point right now is that I’ve got before me is really a
restraining order question, because I want to consider
these issues, but I don’t know if I have to now phrase
this in terms of whether it is invasion of privacy or
whether it is some other kind of tort that’s like defama-
tion or a tort that is an assault on this young child.
I don’t know how if this young child had been taken
out and hit by somebody, there would be an assault and
a battery. Now, when this child is now being whacked
by a person who has, in effect, invaded her most sacred
kinds of things, that’s terrible.
Let me ask you something. Suppose this doctor had
told her to undress, and suppose he had asked her to
demonstrate and graphically use instruments to demon-
strate. We gave her a penis to actually demonstrate.
Are you trying to say to [35] me that this Court could
do nothing about that? I’m not saying it’s obscene or
80a
pornographic, because obviously if you are trying to
demonstrate something like that, that would bother me.
MR. LEVINE: Your Honor, it would be hard for
me to deal with that hypothetical ‘in the abstract, because
I have a hard time knowing how an editor could make
what would be a decision that that would be worth
broadcasting, and secondly, if it did, under the invasion
of privacy tort, as I understand it, how it could shelter
under the newsworthiness, public interest exception to
the privacy tort.
In this case, and I think it’s something that needs to
be said, and it’s said in the afhdavit of Mr. Lambert that
we have submitted to the Court. The issue of whether
those sessions, of whether Hilary’s testimony that she
has been abused was coached in those sessions or whether
they were given of her own free will and were due to be
credited has become a major issue in this dispute be-
tween the parents.
I don’t want to get into the dispute between the par-
ents either, but I think that given the intense public
attention that has been given to this matter, including
broadcasts of this program before and other programs
and written material that has described these sessions in
great detail that this Court cannot say that a prima facie
case of invasion of privacy has been made out.
[36] THE COURT: Let me give you another hypo-
thetical. Suppose—as I understand it, this was supposed
to be utilized in the trial. Am I wrong on that?
MR. LEVINE: I think it was. 1 don’t know.
THE COURT: Now, are you saying that if a Court
took this at a trial, an open trial, that a Court could not
have put a protective order and said that they were not
going to permit that to be shown? I mean other than to
the immediate fact finders. Of course, a Court could
have done that.
MR. LEVINE: But that’s a very different situation,
Your Honor. That’s a situation where the Court is
3la
— _aniniinnssiscccasumaiaalagaailll
being asked to affirmatively grant rights of access to
information that is in its possession because it’s a Court.
There is a much lower level of First Amendment pro-
tection granted in that situation than there is to when
someone has independently and totally lawfully gotten
the material and someone is trying to restrain them from
publishing it or broadcasting it in advance.
THE COURT: [I'll tell you what I’m going to do
here. I believe I don’t have enough data or information,
and I will—I don’t know. Because I think you do raise
a good issue of the question of how are we going to label
whatever this cause of action. But I do believe there is
enough here to issue a TRO, and I’m going to issue a
TRO for 10 days, and I’ll set it for trial.
I want to get all of these for a preliminary [37] in-
junction, but I would like to get all of these matters
squared away, just exactly what is the—I believe there
is a cause of action. I don’t know how to be able to—
how the parties are going to be able to articulate it. I
do hope that perhaps some more information can be ob-
tained as to how this occurred, and getting probably
testimony from the mother and the father and how they
feel that this is in the interest of this child.
And I must tell you that, while I believe that the First
Amendment has virtually unlimited bounds, and I am a
very strong believer in the First Amendment, I think
that in this case it has been exceeded. I must tell you
that I just—those bounds have been exceeded, and, there-
fore, I am going to issue the TRO, and I believe there
is the strong likelihood that the parties will prevail be-
cause I believe this is in the interest of this child, and
I will set this down for a hearing in 10 days.
Do I have a date? And I don’t believe that your organ-
ization will be hurt one bit if you just wait until we
get this thing litigated.
Mr. Lewin, are you going to be able to stay in on
this?
32a
MR. LEWIN: Your Honor, as I advised the Court,
I am now personally in the middle of a trial in Los
Angeles.
THE COURT: You personally?
[38] MR. LEWIN: It will be—I think it will be con-
cluded in two weeks. Either I or somebody else from
my firm will handle it.
THE COURT: Good. Just let me know who that is.
MR. LEVINE: Your Honor, I know you’ve entered
your ruling. There was—at least for the record, I’d
like to get in one other thing, if that’s permissible.
Ms. Mittleman alluded to it this morning. I’d like
to hand up to the Court a copy of the decision issued
by Judge Gesell two days ago. In that decision, Your
Honor, Judge Gesell dismissed an invasion of privacy
claim brought by Dr. Foretich against Glamour Maga-
zine on the grounds that the State of Virginia in which
Dr. Foretich lives does not recognize the cause of action,
and under District of Columbia choice of law rules, it
is the Virginia law that applies.
I would argue just for the record that that ruling
should control this case and that there should be no cog-
nizable right to privacy.
THE COURT: Well, I’ll read it. Again, all these
things, and I have a great respect for Judge Gesell. It’s
unusual that we would see things differently, but I don’t
know whether this is the same type of case.
MS. MITTLEMAN: Your Honor, I’d like to respond
to what he said.
THE COURT: Well, I will in just a second. Just
give [39] me a chance here. That I am not making
any final decisions at this point. I am giving you what
I believe that I think when I balance the interest of the
young child and I balance the interest of the First
Amendment, and of your client, I believe that I am com-
pelled to give the child’s interests the higher priority
here and to put a TRO on it as this time until this
matter can be further fully explored.
33a
What did you want to say? You’ve been quiet and
I think you have a right to say something.
MS. MITTLEMAN: Ill just be very brief, but in
terms of the invasion of privacy, Your Honor is correct.
We have not mentioned anything about a tort. We have
not couched it as invasion of privacy. But Dr. Foretich
is a resident of Virginia. As I said this morning, Hilary
is presumably a resident of the District of Columbia,
which does have the tort of invasion of privacy. The
Vaciliatis case is well known.
THE COURT: Well, this is going to be a nationwide,
and I assume there has got to be an invasion of—if
that’s the tort, there has got to be somewhere in this
country where that applies.
MS. MITTLEMAN: I’m saying that relying on
Judge Gesell’s opinion based on Dr. Foretich’s residency
in Virginia. It’s not our point.
THE COURT: I understand. At this point, I am
issuing a TRO.
[40] MS. MITTLEMAN: I'd like one more thing.
In terms of the evidence, I don’t know if the tape was
introduced into evidence. If so, I don’t know if you
would want to introduce it in—
THE COURT: Yes, the tape will be in evidence as
your Exhibit 1 and as the guardian ad litem’s Exhibit
1. I will enter into evidence both of these declarations.
(Plaintiff’s Exhibit No. 1 marked for identification
and received in evidence. )
MR. LEVINE: Can we also—
THE COURT: But I do think that I would like to
see some testimony. I would like to hear from the mother
as to how she believes that this is in the best interest
of this child as opposed to being in the best interest of
herself. I would like to know, and I think these have
all got to be resolved at the hearing. I think that we
need some experts, quite frankly, other than experts
who have an interest in this matter.
ee
iene
34a
MR. LEVINE: Your Honor, in—
THE COURT: Wait a minute. Another thought I
just had, I would like to know how the mother—i mean
how this whole thing was arranged and why it was, in
fact, given, something as private as this turned over to
the media. To make a circus out of this thing? I really
must—you got me really worked up now, but I really
must tell you that I can’t see how this is much different
than—-not that this is child [41] pornography, but dif-
ferent than a child pornographer that goes out and abuses
a little child. I really don’t.
While motives might be different, the effect is the
same on this little child. And, you know, as I review
that, the business of cutting off this child’s face is ab-
solutely brutal. I think it adds to the terrible impression
you get from this film. I mean that was particularly
bothersome.
By the way, I’m going to limit it only to that first—
to the part that I saw. I assume you know what it is.
The part that involves where you put that thing. All
right. Does that properly describe it or is there some—
MR. -LEWIN: Well, Your Honor, I guess I was
speaking of that part, and then I mentioned there was
another part, and I guess the proposed order that the
plaintiffs had submitted related to any part in which
Hilary is shown. Now, I assume they—there are photo-
graphs of Hilary. I think photographs of Hilary have
been generally available, but there is another portion
where again her face is as Your Honor has said is sort
of blocked out where there is a social worker who comes
to the house to take her for visitation with her father.
THE COURT: I didn’t see that.
MR. LEWIN: That’s in the film.
THE COURT: I know. But you got to understand.
I didn’t have 40 minutes today to see it. I didn’t have
your luxury, Mr. Lewin.
35a
[42] If you want me to look at that, I'll look at that at
this time, but i did nut see that part. The part that I
saw was the part that you saw.
MR. LEWIN: Well, I don’t know whether the de-
fendants will be playing this film if that portion is re-
moved or whether the choice is that the entire film will
not be played without it. If so, that question may be
moot. On the other hand,—
THE COURT: Describe what you saw that you
didn’t like, and why you didn’t like it.
MR. LEWIN: Well, because what happens is she
is sitting there in her mother’s lap. The social worker
says, you know, I’ve come to take you for your father.
She starts crying. Her face again is sort of blocked out.
She’s crying. Then there is the scene—what happens
is it pans away from that particular view. She continues
to cry in the background while Dr. Morgan is describ-
ing the fact that she went through great turmoil in
terms of permitting her child to go through this. So you
have the voice of Hilary in the background.
It is not, as I say, as offensive as the other portion,
not as much of an invasion of privacy, but, again, if
I was viewing it from the child’s interest, which Your
Honor has instructed me, then—
THE COURT: All right. Ill order that other part,
and if it is reversed, it can be reversed from that. But
the key to this is again, I hope you folks understand what
I’m [43] saying that I’m looking that if there is such
a cause of action, which I believe there is, and at the
end of the case, I believe that I would be entitled to say
that that document should not be shown any more, even
if it had been shown 100 times out there. That I be-
lieve that that is enough to—now, I could be wrong.
But that’s where I am, and does somebody have a piece
of paper for me to sign?
MR. LEVINE: Your Honor, before you irrevocably
put pen to paper on this, may I think in fairness to
36a
the Court because of some comments you made, I need
to make a couple of comments.
Dr. Froning who executed the affidavit who was the
person who gave permission to give the tapes for use in
this documentary and advised Dr. Morgan that that
would be a good idea is here. She—
THE COURT: What?
MR. LEVINE: She is here.
THE COURT: She’s here?
MR. LEVINE: Yes.
THE COURT: Well, why didn’t you put her on the
stand?
MR. LEVINE: If you want to, I’ll be happy to do
that. Also, Dr. Foretich is here. Dr. Morgan who you
alluded to is in New Zealand, and I don’t think she’s
going to be here [44] in the next 10 days.
THE COURT: Well, I would like to have those peo-
ple, but we’ll do that at the preliminary injunction. At
this stage, it’s 10 minutes to 5:00. I promised Mr.
Lewin, who has some religious beliefs that he has to sat-
isfy tonight that I would not tie him up that tong, and
I assume you are going to try to appeal this, and so,
therefore, I think if the Court of Appeals wants to send
it back and you can keep these people here to take some
testimony, I’ll be prepared to take testimony. Do you
have somebody from your office here who can—
MR. LEWIN: Yes, I have my partner, Mr. Braga,
is here.
THE COURT: And I know him well. The child will
be ably represented.
MR. LEVINE: I just feel that I need for the record,
Your Honor, to make it clear that she is here and is
available.
THE COURT: I know. But I wish you would have
told me before.
MR. LEWIN: Your Honor, if it is going to take
another 20 minutes or half an hour, I can be here. I
mean, I don’t mind, if Your Honor wants to have—
37a
THE COURT: Well, if you feel that—do you want
to introduce some testimony?
MR. LEVINE: Your Honor, my feeling is—
[45] THE COURT: Well, put your witness on.
MR. LEVINE: All right.
Now, did I understand Your Honor to say that you
would be enjoining this other portion?
THE COURT: No, I’m not going to be enjoining
anything. I’m going to hear testimony.
MR. LEVINE: I understand that. But if you were—
I didn’t understand the result of the last colloquy before
we got to this testimony. —
THE COURT: Well, let me just hear this testimony.
MARY FRONING, DEFENDANTS’ WITNESS,
SWORN >
BY MR. LEVINE:
Q. Could you state your name for the record please?
A. Dr. Mary L. Froning, F-R-O-N-I-N-G.
Q. What is your occupation, Dr. Froning?
A. I’m a licensed psychologist.
Q. Can you tell the Court a bit about your educa-
tional background and training?
A. I received a doctorate in clinical psychology and
then began to specialize in children and families and
finally in child sexual abuse, which has been my field |
since 1984.
Q. Where are you currently employed?
A. I’m in a group private practice in Silver Spring,
Maryland.
Q. Are you familiar with the Chesapeake Institute?
[46] A. Yes, I began working there in February—
excuse me, August, 1984.
Q. And how long did you work there?
A. Until January of 1989.
Q. In what capacity?
A. Iwas the senior staff psychologist.
38a
Q. What did you do as senior staff psychologist of
the Chesapeake Institute?
A. Chesapeake Institute is a center for the study,
evaluation and treatment of child sexual abuse. I did
research, performed evaluations and treatment of all
people involved with child sexual abuse, offenders, child
and adult victims and other family members.
Q. Did you during that period at the Chesapeake
Institute have occasion to examine and treat Hilary
Foretich?
A. Yes, I did. I began to see her in January of 1986.
Q. How long did you see Hilary?
A. I saw her continuously between January of ’86
and August of 1987 for a total of 87 sessions.
Q. Were you her treating psychologist?
A. Yes, I was.
Q. Did there come a time when you were contacted
by someone named Steven Lambert?
A. Yes.
Q. Who is Steven Lambert?
[47] A. Steven Lambert is the producer for Hilary in
Hiding of the BBC.
Q. That’s the broadcast that you understand to be
at issue today; is that correct?
A. Yes.
Q. Could you tell the Court a little bit about the
circumstances under which you made available to Mr.
Lambert the videotapes that have occupied our attention
here this evening?
A. Yes. Mr. Lambert came to me first in the sum-
mer of ’89 and then for I think production reasons things
got cancelled, and then came back to me in the fall of
’°89. In order to better understand this case, he wanted
to talk to Hilary’s treating therapist, and I spoke with
him at length.
At some point in time, I don’t recall exactly how, the
existence of the videotapes became known to him, but
| 39a
he knew of them and I told him that I thought they
were heipful to the understanding of the case.
Q. Before we get to that, Doctor, how is that you felt
that you were professionally permitted to be having dis-
cussions with Mr. Lambert about one of your patients?
A. I had a release from Dr. Morgan, who is Hilary’s
legal custodian. We updated that every six months to
make sure that she continued to believe that was in her
child’s best interest.
MR. LEVINE: Your Honor, may I approach the
witness with a copy of the consent forms?
[48] THE COURT: You certainly may.
MR. LEVINE: Could I ask that it be marked for
identification as Defendant’s Exhibit 1, I guess.
(Defendant’s Exhibit No. 1 marked for identification. )
BY MR. LEVINE:
Q. Could you describe for the Court what Defendant’s
Exhibit 1 is?
A. There are two releases. One is—they are both exe-
cuted by Dr. Elizabeth Morgan, one for Hilary and one
for Dr. Morgan herself.
MR. LEVINE: Your Honor, I’d like to move the ad-
mission of Defendant’s Exhibit 1.
THE COURT: Admitted into evidence.
(Defendant’s Exhibit No. 1 received in evidence. )
BY MR. LEVINE:
Q. When you talked to Mr. Lambert about providing
him with copies of the tapes, what—did you tell him that
he had your permission to use the tapes?
A. At the point at which we were discussing it, it
was only to help him understand the case. At some point
in time, and he was—asked to view them with me. Un-
fortunately, I was unavailable. So Dr. Morgan picked up
the tapes. They were in my possession and viewed them
with Mr. Lambert. At some point [49] in time then
there was a decision made to use them in the broadcast.
tll
40a
Q. Did you give your permission to Mr. Lambert to
use the tapes in the broadcast?
A. I don’t believe specific permission, but through
Dr. Morgan it came to be agreed that they would be
helpful.
Q. And you had no problem with that?
A. Ihad no problem.
Q. Why did you believe that it was appropriate to use
the tape recordings in the broadcast?
A. I need to add that it was with the expressed rea-
son that permission was given only if Hilary’s face were
shadowed, and that was because that at the time she was
still in hiding and I did not want to in any way provide
help for hiding—for finding Hilary.
THE COURT: What was this? Ave you telling me
she was still in hiding, and you knew she was in hiding?
THE WITNESS: Everyone knew she was in hiding.
THE COURT: But you knew where she was?
THE WITNESS: No, no, no, sir, I did not. But I
didn’t want her picture—these were films that were taken
in 1987, before she went into hiding.
THE COURT: Oh, I see. Before she went into
hiding:
THE WITNESS: Yes.
BY MR. LEVINE:
[50] Q. Why did you believe it was appropriate to use
the tapes in the context of this documentary?
A. It’s my position that in order for people to protect
Hilary, they needa to believe her story, which she tells
pretty ably in those videotapes, that she is a sexually
abused child. And I don’t think people can understand
that other than hearing from Hilary herself.
. Has there been some problem from your perspec-
tive with the credibility vis a vis others of Dr. Morgan
when she tells Hilary’s story or when others tell Hilary’s
story?
4la
A. Right. The typical story of, you know, he says
this and she says that has left people totally confused I
think.
Q. Doctor, have you talked to Hilary about the issue
of whether or not events—the events depicted on the
videotape or others like them concerning her should be
publicized?
A. Ihad one conversation with her about it.
Q. Did you make notes of that conversation?
A. Yes, I did.
MR. LEVINE: Your Honor, may I approach the wit-
ness.
THE COURT: Yes. Now, who did you have the con-
versation with?
THE WITNESS: With Hilary Foretich.
THE COURT: When was that?
THE WITNESS: August 20 of 1986 when this case
first became public.
[51] THE COURT: These tapes became public in
1986?
THE WITNESS: No, the case did, because her
mother went to jail the first time in August of 1986.
THE COURT: And you saw her when?
THE WITNESS: I started seeing her in January and
continued to see her until she went into hiding.
THE COURT: In 1986?
THE WITNESS: Right. All through 1986 and part
of 1987.
THE COURT: And you had a conversation with her?
THE WITNESS: About publicity.
BY MR. LEVINE:
Q. I’ve handed you what I’ve asked the Court to mark
for identification as Defendant’s Exhibit 2. Can you
identify that document?
MS. MITTLEMAN: Judge Dickson has taken ex-
traordinary measures over these years to keep Hilary’s
42a
privacy maintained, and it is my understanding that this
type of material is under seal in the D.C. Superior Court.
THE COURT: And it will remain under seal here.
You have no problem with it being placed under seal?
MR. LEVINE: With the notes I have no problem.
THE COURT: What?
MR. LEVINE: I have no problem that the notes are
under seal.
[52] THE COURT: Admitted into evidence under
seal.
(Defendant’s Exhibit No. 2 marked for identification
and received in evidence under seal. )
BY MR. LEVINE:
Q. Can you describe for the Court your conversations
with Hilary concerning publicity? If the notes will help
you refresh your recollection, feel free to refer to them.
A. These were notes taken at the time, usually 10
minutes after the sessions. This particular note then was
taken on August 20, 1986. Hilary came in talking about
the fact that she had seen something on TV of which I
was a part about her having been sexually abused. So
we began to talk about it.
What I explained to her was that I had two different
ideas about this. One that I wanted to protect her pri-
vacy, and second of all, that I wanted people to know
that she and her mother were telling the truth about what
had happened. She seemed to understand that, and I
think got closer to me at the end of that session than she
had been for a long time, which is I think she thought I
understood how she felt about things.
Q. Have you had an opportunity to review the broad-
cast, Hilary in Hiding, that is at issue in this case?
A. Yes, I have.
Q. Do you have a professional judgment based on
your treatment of Hilary with respect to whether the
airing of this [53] broadcast would cause her any harm?
A. Yes, I do.
—
43a
Q. And what is your opinion?
A. In my opinion, based on my knowledge of Hilary,
I believe that it helps create an atmosphere of protection
for her, and that to me is the main reason for any press
coverage, is her protection. Based on my knowledge of
her, I do not see a negative outcome for her based on this
particular broadcast, which I think protects her privacy
as well as it can by the shadowing of her face.
Q. Have you seen other broadcasts about Hilary here
in the United States over the last six months?
A. Yes. ;
Q. Based on your observation, is this broadcast ma-
terially different in the impact that it would have on
Hilary as any of those other broadcasts?
A. I believe it is one of the ones that might have a
more positive impact for her safety.
Q. And why is that?
A. Because I think it presents Hilary’s story by see-
ing Hilary.
MR. LEVINE: Your Honor, I have no further ques-
tions.
THE COURT: All right.
CROSS-EXAMINATION
BY MR. LEWIN:
[54] Q. Dr. Froning, with regard to the episodes that
are on the film, am I correct in saying that—firs? of all,
were you there when that film was made?
A. The one with David Corwin and myself and Dr.
Morgan and Hilary, yes, I was there.
Q. And if I recall correctly, you were in the room,
but not during the period of time that makes up the bulk
of what is on the film?
A. That’s correct.
Q. And am I correct in saying that, in fact, Hilary
did not want you or Dr. Corwin to be in the room when
she was making these statements?
A. That’s correct.
44a
Q. And this is after you had been her therapist for
how long?
A. Eleven month.
Q. And this was sometime after this meeting in Au-
gust when you say you went on television; is that cor-
rect?
A. That’s correct.
Q. And so she was only ready to disclose that when
you were out of the room and Dr. Corwin was out of the
room?
A. That seemed to be more comfortable to her, yes.
Q. And just in terms of your expert opinion, is it fair
to say that the child under those circumstances is really
disclosing something that is most private to her if she
wants everybody else to leave other than her mother?
[55] <A. I don’t know if private is the word I would
use. Maybe something she’s ashamed of.
Q. She’s ashamed of. So she doesn’t want it known
by anybody other than her mother in the confidentiality
of that room?
A. I don’t know that I can interpret that from that
action of Hilary.
Q. Well, how else would you interpret her asking you
and Dr. Corwin to leave?
A. Just because it is more comfortable for her to tell
her mom. She’s more used to telling her mom. She was
thinking about the feelings she was having right then and
not who would see this or anything like that.
Q. And you think a child would not feel betrayed if
afterwards it turned out that what she told her mom
confidentially after she asked you and Dr. Corwin to
leave is broadcast to the entire world on television?
A. I don’t—she knew it was being videotaped, and
she knew chat Dr. Corwin and I would see the tape. We
made that clear to her.
Q. You told her that you were going to see the tape?
A. Yes.
45a
Q. And nonetheless, she—
THE COURT: How old was she at this time?
THE WITNESS: Four years old.
BY MR. LEWIN:
[56] Q. Now, you’ve been experienced in other cases,
haven’t you, of sexual abuse?
A. Yes.
Q. And isn’t it true that in the usual sexual abuse
case with a minor, the minor is really very reluctant to
talk about the episode?
A. Absolutely.
Q. And that it is ordinarily viewed as embarrassing
by the child to have to speak about it and to have it
made public?
A. To speak about it, sometimes to have it made pub-
lie.
Q. Well, would you say sometimes more often than
not?
A. Probably.
Q. And, in fact, isn’t it true that in order to over-
come that, you’ve got to really kind of persuade the child
that it was good for it to become public in some way?
A. I wouldn’t say that. I would talk to them about
the issues that it brings up for them. I know of a par-
ticular child, if you’d like an example of how it was
handled when it became public.
Q. But we had a conversation this afternoon in which
you told me, did you not, that really in these other cases
that you’ve had, the children have expressed concern and
then you had to be talking to them and persuading them
that it was really no shame for them to become public?
A. That’s correct.
157] Q. But that ordinarily children view it as being
an embarrassment and a shame for them for that to be
public.
A. That’s because of the context that incest occurs,
which is that it is secret and that it is done without any-
46a
one else present. They have—children have a feeling of
shame about it. You know, I don’t believe that we, as a
society, should add to that shame.
Q. Well, would you generally believe that conversa-
tions that you have with children.who have reports of
being sexually abused, would it be good for those children
if those sessions with them were broadcast on television
to the public?
A. Oh, absolutely not. I mean this—
Q. It would be harmful, wouldn’t it?
A. —is a most extraordinary situation.
Q. But in the ordinary case it would be very harmful
to a child to broadcast a session in which the child is
describing an incestuous sexual episode with a parent;
is that true? In the ordinary case?
A. Without permission of the child?
Q. Well, let’s take a four year old child, with or with-
out permission. First of all, is the permission of a four
year old child, I mean, do you think that’s really some-
thing that ought to bind whether a matter like that ought
to go on television?
A. Well, I’m a clinician, not a lawyer.
[58] Q. I understand.
But as a clinician, do you think ié is good in the long
run for a child, for that child to be bound by what she
says at the age of four years old as to whether she thinks
she wants to be on television?
A. I can’t answer that question. I don’t know. That
would be speculation.
Q. Well, you’d agree with me, that’s not really sensi-
ble that a child ought to be bound by—
A. That’s all we have. That’s all we have. If we had
something else, then—
Q. And you’d agree with me that ordinarily it would
be very harmful to a child to broadcast over television
this very private discussion that she has about a sexual
episode that she relates happened to her?
A. If she wanted people to know about it, then I don’t
think it would be very harmful. If she didn’t want people
47a
to know about it, then I would think it might be harmful
to her.
Q. Well, would you agree with me that if she wanted
everybody to leave the room at the time, she apparently
did not want everybody to know about it?
A. I don’t think that you can draw that conclusion,
because what she was saying is she is just more com-
fortable talking about it without us there. She knew—
she had told those things to me many times, and she told
Dr. Corwin many times [59] after that about her abuse.
It’s just that particular time she didn’t feel comfortable
doing it.
Q. It’s a fact, is it not, Dr. Froning, that the reason
for your conclusion is that you are firmly and totally
persuaded and you fully believe that, in fact, Hilary
Foretich was sexually abused?
A. Yes.
Q. If that were—if there was some doubt in your
mind about whether she had been sexually abused, you
would agree that it would be harmful for that kind of
intimate discussion to be broadcast publicly; is that true?
A. I don’t have any clinical experience to answer that
question.
Q. Well, let me ask you about clinical experience.
You sometimes have patients or children who report to
you that they have been sexually abused, but you may
have some doubt about whether they have or have not
been sexually abused?
A. That’s true.
Q. Would you have any doubt at all in your mind
that if you had such a meeting with a child, and there
were some doubt about whether the child was sexually
abused, that it would be harmful to that child to have
such a meeting broadcast on television?
A. That’s such a hypothetical. I’m really having a
hard time answering that hypothetical because the issue
is protection, [60] not privacy.
48a
Q. No, no. I mean you have had cases of children
about whom will tell you that they have been sexually
abused, but you are not sure whether they have or have
not. Has that happened?
A. If there were a privacy, privacy would come first,
unless protection needed to come first.
THE COURT: But he’s asking you a very simple
question. If a child has come and has been mistaken or
has told you a fantasy, he’s asking you how would the
child be better off if you put that on nationwide televi-
sion, which would only prove that the child has fantasized.
How would that child be better off?
THE WITNESS: I don’t think he or she would be
better off.
THE COURT: Is that the question you were asking?
MR. LEWIN: Well, yes.
BY MR. LEWIN:
Q. But even short of that, if you didn’t know whether
it was a fantasy or not. In other words, what I am say-
ing to you, assume with me that you have a child who
tells you this kind of an intimate story and you don’t
know whether it is true or not. You would agree, would
you not, as a professional psychologist that it would be
harmful to that child to have the confidential discussion
with you in which she describes her sexual abuse broad-
cast on television?
[61] A. Yes, I agree.
Q. And, therefore, the only reason why you are stat-
ing your conclusion from the witness stand here today is
because you believe personally from all your discussions
that there was sexual abuse?
A. Correct, and Hilary needs protection from that.
Q. But to the extent that a Court concludes that at
the present time it doesn’t know whether there was sexual
abuse, you agree, as a professional, that it would be
harmful to a child in that cireumstance where you don’t
49a
know whether there is sexual abuse to broadcast this
kind of a film?
A. I’m not a lawyer or a judge. I’m a clinician mak-
ing decisions on—
THE COURT: I think she’s answered the question.
Let’s go on.
MR. LEWIN: All right.
BY MR. LEWIN:
Q. And finally, let me ask you, you’ve said in answer
to questions from defendants’ counsel that you don’t think
that this film is materially different from any other
things that have appeared on television regarding this
case. Has there been any other—
A. I don’t believe that’s what I said.
Q. Oh, I don’t know. What did you mean when you
said it wasn’t materially different?
[62] A. The only thing that is different is the Corwin
piece, because that has not been shown before.
Q. All right.
Well, that’s what I’m asking you. Would you agree
with me that that piece which has Hilary describing all
this is materially different from anything that has ever
appeared on television before, except for this film to the
extent it has appeared on television?
A. I think it is different, yes.
Q. And it is different from your vantage point in
terms of the impact on the child as a psychologist. See
that that being on television has more—is likely to have
more of a lasting impact on her than any other thing
that has heretofore appeared on television?
A. Iwouldn’t make that conclusion.
Q. Well, do you think it makes a material difference
to her psychological well being whether or not this partic-
ular portion appears on television?
A. I don’t know whether she would have more problem
with her erying on TV or her telling about the abuse on
TV.
50a
Q. Oh, good. I’m glad you raised that.
How about the crying on TV? Would that have some
psychological impact, the crying? aint about the abuse.
A. I don’t know.
Q. You’re a psychologist. Do you think it would in
terms of [63] children of that age if their crying in these
circumstances is broadeast and is, therefore, available to
the public and can always be sort of played back to them
or people can say they’ve seen it. Could that have a harm-
ful impact on a child?
A. I suppose it’s possible. You have to weigh the
greater harm of lack of protection.
Q. And to you the ultimate thing is that this child
has to be protected from Dr. Foretich?
A. She has to be protected from further sexual abuse,
yes.
Q. And that justifies putting it on television? That’s
the thing to your mind justifies putting it on television?
A. Absolutely.
Q. And it is a fact, is it not, that in terms of your
professional relationship with Hilary that has grown out
of Dr. Morgan retaining the Chesapeake Institute?
A. That’s correct.
Q. So that you have essentially been paid for your
services through the Chesapeake Institute which was re-
tained by Dr. Morgan?
A. At $16 a hour, yes.
MR. LEWIN: Thank you.
THE COURT: He’s getting noting. Usually law-
yers, you can make them feel bad when you say some-
thing like that, but not this one.
Now, would you tell me in this Exhibit 2, there is a
[64] little asterisk and it says, “I explained my difficul-
ties.” Is that you talking?
THE WITNESS: Yes.
THE COURT: And it says, “I wanted people to be-
lieve her and her mother.” Is that what it says?
5la
THE WITNESS: That’s correct.
THE COURT: But I felt badly about sharing private
things about her on TV.
THE WITNESS: That’s right.
THE COURT: She seemed to understand. What did
you mean by that?
THE WITNESS: I was sharing things that had gone
on in our sessions, and she and I both knew that those
were private.
THE COURT: Well, what did you mean by you felt
badly about sharing private things on TV?
THE WITNESS: Oh, I had been interviewed on TV
about Hilary’s abuse.
THE COURT: And she saw that?
THE WITNESS: She saw one broadcast.
THE COURT: And she was unhappy about it?
THE WITNESS: She was initially unhappy, and
then seemed to understand after we talked about it.
THE COURT: And you said, you felt badly about it?
THE WITNESS: I did. I had some concerns. I mean
[65] psychologists are not used to sharing confidential
information.
THE COURT: In this case here, how did you meet
those concerns or satisfy those concerns when don’t you
usually try to get the permission of the patient?
THE WITNESS: Well, I got her mother’s permission.
THE COURT: You got the mother’s permission.
THE WITNESS: That’s what is required in the
ethics of a psychologist.
THE COURT: But weren’t you aware there was a
guardian ad litem here?
THE WITNESS: There was not yet one appointed
at that point.
THE COURT: There had not been one appointed at
this time?
THE WITNESS: Until September of 1987.
THE COURT: When was that, September?
THE WITNESS: Yes, and this was August.
THE COURT: So you felt—
52a
MS. MITTLEMAN: Not 1987, Your Honor. Hilary
was abducted in August of 1986.
THE WITNESS: Excuse me. September of ’86.
THE COURT: Well, can I get the date when the
guardian ad litem was appointed?
THE WITNESS: September ’86. It was after Dr.
Morgan got out of jail the first time.
[66] THE COURT: Soin September of ’86—
MS. MITTLEMAN: She was appointed to facilitate
the visitation and most of these so-called therapy ses-
sions were under court supervision, et cetera. So there
was certainly access to getting other permission besides
Dr. Morgan.
THE COURT: Are you saying that all these per-
missions that you granted and gave all took place be-
fore a guardian ad litem had been appointed?
THE WITNESS: No, my understanding of the role
of the guardian ad litem was only to do with things
that occurred in D.C. Superior Court. That was what
was explained to me by the guardian.
THE COURT: Yes but don’t you think that that
would have been a person that you should have gone
to since you knew there was this litigation between the
mother and the doctor, Dr. Foretich. I guess they are
both doctors. Between her mother and her father.
THE WITNESS: The only conversation—well, the
only—I did talk with her about publicity?
THE COURT: And what did she say?
THE WITNESS: Well, I sent her an article where
I was quoted, and she sent me back a note and said,
thank you.
THE COURT: But she’s here today opposing this. I
assume she’s still opposing this; is that correct?
MS. MITTLEMAN: Yes, Your Honor. She is just
ill [67] today.
THE COURT: All right.
THE WITNESS: We have very different views of
this case, Ms. Holman and I.
58a
THE COURT: I know you do. I must assume you
have.
All right. Anything further? Is there anything
further? Any further witnesses?
Do you have any further witnesses?
MS. MITTLEMAN: I'd like to—
THE COURT: Go ahead. But let’s do it quickly.
MS. MITTLEMAN: Very, very briefly. I would just
like to comment that if she was proffered as some sort
of an expert witness, we would object to that.
THE COURT: She hasn’t been qualified as an ex-
pert. She’s a fact witness.
MS. MITTLEMAN: Okay. Exactly. That’s my
point.
THE COURT: In this jurisdiction, usually a fact
witness cannot be an expert witness.
MS. MITTLEMAN: Okay. That would be my point
that she would be a fact witness, and so that her testi-
mony as to what is good treatment or bad treatment is
only a fact.
THE COURT: Is there anything further?
MS. MITTLEMAN: I would also like to mention that
Mary Froning and Chesapeake Institute are defendants
in another litigation pending in the United States Dis-
trict Court.
[68] THE COURT: For whom?
MS. MITTLEMAN: Whoare the plaintiffs?
THE COURT: No, who has that case?
MS. MITTLEMAN: Judge Green.
THE COURT: Well, how many judges do you have
in this case? How can we have all the judges? You
have Green. You got Gesell. Why don’t you the next
time put in a related case and then give it to the first
judge that had it. I mean I don’t think we can tie up
the whole bench here.
MS. MITTLEMAN: I agree, Your Honor. That was
one reason why asking for a remedy of coming to Court
after this thing was broadcast would just be one more
54a
case. I mean, you know, the travesty that is done to
Hilary— |
THE COURT: I think that I would suggest to my
brethren and sisters on the bench that somehow we get—
which Green was it, Joyce or Harold?
MS. MITTLEMAN: Harold Green. That would be
fine, Your Honor.
THE COURT: And who was the first judge that had
one of these cases?
MS. MITTLEMAN: Judge Gesell.
THE COURT: Are you the one that is bringing all
these cases?
MS. MITTLEMAN: Yes, Your Honor.
THE COURT: I would suggest that we get them
before [69] one judge.
MS. MITTLEMAN: That would be acceptable.
THE COURT: See, you’re running in now—I’m be-
ing accused of deciding differently than Judge Gesell,
and that’s what we’re trying to avoid.
MS. MITTLEMAN: I understand that.
THE COURT: Now, but I don’t know. I think we’re
going to have to handle it. Betty, will you talk to the
other Clerks and see how they want to handle this.
Anything further you have? Oh, I’m sorry. Go ahead.
MR. LEWIN: Your Honor, I’d just like to—
THE COURT: I cut you off. Did you want to have
any questions you want to ask?
MS. MITTLEMAN: Well, I mean, if she’s a fact wit-
ness, she stated what she observed. So I’m not going—in
other words, I’m not going to rely on her opinion.
THE COURT: I think Mr. Lewin did a pretty good
job.
Go ahead.
MR. LEWIN: As far as I’m concerned, the witness
can step down.
THE COURT: Al! right. You may step down.
(Witness excused. )
THE COURT: All right.
55a
MR. LEVINE: Your Honor, I just want to make two
very quick points. I realize the hour is getting late. One
is that [70] can we just have it agreed that for purposes
of an appellate record everything that we’ve submitted
with our papers, including the two tapes and the affi-
davits this morning are in evidence for purposes of—
THE COURT: Yes. But let me say this to you. I,
again, the last I’ve seen of the law on TRO’s, I don’t
know that they are appealable. There may be some excep-
tion. But this is a TRO that I’m issuing in this case, and
I am setting a preliminary injunction for—well, 10 days
takes us te recess. I will put it on the 17th. You’re
assuming you’re going to appeal, and I assume that for
one day that you will maintain the TRO. If you don’t,
I’ll issue another one.
This will be the 17th, at 10:00 a.m. or 9:30.
MR. LEVINE: Your Honor, just for the interest of
completeness of the record, I feel like I must make one
point.
THE COURT: Surely. You’ve been very good, I[
must tell you. I admire you. Go ahead.
MR. LEVINE: If there is one thing that is clear in
the law surrounding the First Amendment, and I’m quot-
ing directly from cases, there is a “heavy presumption”
against prior restraints. That means they have the bur-
den to show that they’ve got a cause of action, that
they’ve got evidence in support of the cause of action.
There is no heavier presumption in our law, it seems to
me than that against prior restraints.
[71] THE COURT: I understand that.
MR. LEVINE: And I’m faced with a situation here
where they have known about this broadcast for over a
month. They apply for a TRO the night before the broad-
east is supposed to come on. They put on absolutely no
evidence, not a centilla [sic] of evidence. We come forward
with evidence, including the views of a clinician who has
examined the child 80 times that this is not a problem.
They have no evidence to rebut it.
56a
THE COURT: They have had the most graphic and
the most dynamic evidence that you could conceive of,
and that’s the document itself, and I don’t know what
more—he now has the witness here I think that shows
that she may not have been as careful as she should have
been in this case. So I think they’ve got evidence.
And, indeed, this is a TRO. There is a legal issue here.
You’re looking at it strictly from the First Amendment.
I believe you’ve got to look at it from the First Amend-
ment, but you also got to look at it from the interest of
this child.
And we in this country are very protective of children,
and we’ve got a four year old girl that we’re now told
gave a consent. How conceivably could she have done
that? Unless she might be a rocket scientist. I mean
what they did to this—if there has been abuse, in my
view, there has been a grave abuse of this child, of mak-
ing her—why she needs 11 [72] months of being under
a doctor’s care when they are videotaping every one of
these sessions and then giving it to the media. I can’t
understand that.
MR. LEVINE: Your Honor, with all due respect--
THE COURT: Really, I must tell you, and, again, I
den’t want to take any sides in this crazy kind of litiga-
tion, but I wish someone would look at this child’s inter-
est. That was my concern, and I can’t conceive—as a
father, as a parent, I cannot conceive that this could in
any way be in the child’s interest.
MR. LEVINE: And Your Honor, if they had put on
a psychiatrist, if they had put on evidence, if they had
done anything to meet their burden.
THE COURT: They’ll be given that opportunity.
MR. LEVINE: But in the meantime, you are taking
a broadeast that has already been broadcast nationally
once, you say it’s a temporary restraining order. It is
still an injunction against publication, against broadcast
at this time.
57a
THE COURT: Go ahead. I’ve got to give you some
time, because he’s going to be going out of here.
MR. LEWIN: Just on that. Just on this last point,
Your Honor, I trust that the reason I sort of acquiesced
when I was told that there was a witness was that in
case there was any question about evidence, I .did want
to get something in on this. I think, frankly, if this case
is taken up on appeal, [73] the testimony of this witness
is I think helpful at least in terms of my case.
THE COURT: You got the tape.
MR. LEWIN: The tape and I would urge that the
transcript certainly be transcribed promptly, if, in fact,
counsel is planning to take this up to the Court of Ap-
peals. But I think the Court’s conclusion that there ought
to be a temporary restraining order issued can be based,
I think, on the tesitmony of this witness.
THE COURT: Fine. Will you give me a document
now? I have not seen that other piece, and since I have
not seen it, and you tell me—you know how to reach it?
MR. LEWIN: It very shortly follows—
THE COURT: We don’t have the film.
MR. LEVINE: It’s here.
THE COURT: You have it?
MR. LEVINE: It went back downstairs.
Perhaps we could short circuit this a little bit. I
talked to my clients before I came over here. They were
debating between whether they would pull the broadcast
totally or whether they would do something electronically
to remove the segment. I’ll represent to the Court that
if they are going to remove one for this purpose, they’ll
remove both. go they’ll either do neither or both.
THE COURT: Were you able to draft a piece of
paper [74] while you were waiting there?
MS. MITTLEMAN: There was an order, Your
Honor, attached.
THE COURT: Where’s the order?
58a
MR. LEVINE: Your Honor, I would vehemently ob-
ject to the order. It’s over broad. It refers to any visual
depiction of Hilary.
THE COURT: I’m not going to give an over broad
order.
Mr. Lewin, when do you think—I can give you a—I
got in my outer room a word processor.
MR. LEWIN: We’ll_draft up an order, Your Honor.
THE COURT: I want to see it. So you can wait in
the room. All right.
(Proceedings concluded at 5:25 p.m.).
* * * *
59a
APPENDIX D
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Civil Action No. 90-0796
SPORKIN, J. SS
ERIC A. FORETICH,
10440 New Ascot Drive
Great Falls, VA 22066
(703) 759-5530
and
HILARY FORETICH, an infant who sues through
her father and next friend,
Diplomat Motel
127 Papanui Road
Christchurch 1, New Zealand,
Plaintiffs,
v.
LIFETIME CABLE
36 - 12 35th Av.
Astoria, NY 11106
(718) 482-4000
and
BRITISH BROADCASTING CORPORATION
2030 M St., N.W.
Suite 607
Washington, D.C. 20036
(202) 223-2050,
Defendants.
60a
COMPLAINT FOR PRELIMINARY AND
- PERMANENT INJUNCTION
[April 5, 1990]
1. Jurisdiction is founded upon 28 U.S.C. § 1331 and
§ 1332, and D.C. Code § 13-423(a). Venue lies in this
district under 28 U.S.C. § 1391, because the claims al-
leged arose in this district.
2. Plaintiff Eric A. Foretich, D.D.S., is an oral sur-
geon and the father of Hilary Foretich. He is a citizen
of the commonwealth of Virginia.
3. Plaintiff Hilary Foretich is the infant child of Eric
Foretich and Elizabeth Morgan. Hilary was born on
August 21, 1982. She was a citizen of the District of
Columbia, residing at 4401 Westover Place, N.W., Wash-
ington, D.C. 20016, before she was taken away from the
District of Columbia in violation of a court order in
Morgan v. Foretich, C.A. No. D-684-83, a case still pend-
ing in the D.C. Superior Court before Judge Dixon.
Hilary was recently located in New Zealand, living with
her maternal grandparents. Matters are pending at this
time in the New Zealand courts which will have a bear-
ing on Hilary’s residence.
4. Defendant Lifetime Cable is, upon information and
belief, a company which airs television programs over
cable. Upon information and belief, its principal place
of business is in New York.
5. Defendant British Broadcasting Corporation is,
upon information and belief, a foreign corporation. It
maintains an office in the District of Columbia.
FACTUAL BACKGROUND
6. The British Broadcasting Corporation (‘“BBC’’)
has produced a program titled Hilary in Hiding (“pro-
gram”). It was aired in Britain for their 40 Minutes
program.
‘
a
6la
7. Upon information and belief, Lifetime Cable will
air this program on the following dates: April 6 at 9
p.m., April 7 at 10 p.m., April 14 at 3 p.m., and April 19
at 2 p.m. The program is listed on pages 49 and 51 of
the TV Week section of The Washington Post, dated
April 1-7, 1990.
8. The Organization, Friends of Elizabeth Morgan
(“FEM’’) sends out a newsletter to an unknown number
of those on the mailing list. The newsletter dated Spring
1990 gives notice of the upcoming program under the
heading “Media Watch.”
9. FEM has an 800 toll-free number that informs the
caller about matters involving Dr. Morgan. The number
is 1-800-888-MRGN. Upon information and belief, the
message on the 800 number has recommended the upcom-
ing program, Hilary in Hiding.
10. The program contains two different tapes show-
ing Hilary. These tapes involve either conversations and
demonstrations with dolls about sexual matters, including
discussion of the genitals, or show Hilary in a private
Situation, including discussion with her mother and a
social worker about a visit with her father. Upon in-
formation and belief, the tape with Dr. Morgan aud the
social worker was filmed at Dr. Morgan’s former home
in the District of Columbia.
11. Upon information and belief, the tapes of Hilary
included in the program were prepared under the auspices
of her mother for use in litigation. As such, they have
no literary, scientific, educational or any other value to
the public.
12. The tapes explicitly depict Hilary in private situ-
ations, discussing intimate and purportedly sexual mat-
ters. They include some captioning in the apparent effort
to clarify Hilary’s statements to the viewing public.
13. The allegations of sexual abuse which are dis-
cussed in the program have not been substantiated in
62a
court. See Morgan v. Foretich, 546 A.2d 407, 410 (D.C.
App. 1988).
14. Dr. Foretich is portrayed in a false light in this
»rogram, particularly through the’showing of the tapes
of Hilary, which were prepared under the auspices of
Dr. Morgan.
15. Plaintiffs will be specially and irreparably harmed
by the airing of the program, particularly the segments
showing Hilary on camera. Plaintiffs have no adequate
remedy at law.
16. I, Linda P. Holman, the D.C. Superior Court-
appointed guardian ad litem for Hilary A. Foretich,
hereby join in the request to have those portions of the
broadeast which feature Hilary enjoined from airing.
One of the videotapes of Hilary was made during a
therapeutic session with David Corwin and Mary Froning
during litigation and the other was made before a court-
ordered visit with the court-appointed social worker. As
Hilary’s guardian ad litem, I object to the tapes’ airing.
I have not granted permission to have the tapes made
public nor would I ever do so. The therapeutic tape is
being broadcast in violation of Hilary’s doctor-patient
privilege, as I have not waived her right to confidential-
ity. More importantly, however, both of the videotapes
violate Hilary’s guaranteed rights to privacy. The tapes
are explicit and I believe their airing will irreparably
harm Hilary, both now and in the future as she matures.
Because the tapes are highly personal, private and inti-
mate, in Hilary’s best interest, they must remain so and
therefore be deleted from the program. Defendants can-
not demonstrate that they are prejudiced by the deletion
of these portions of the program. Although I strongly
object herein only to those portions of the prograra with
Hilary on, air, I believe the airing of the whole program
does a disservice to Hilary and also invades her right to
privacy.
63a
WHEREFORE, plaintiffs pray as follows:
A. For an Order declaring that the program Hilary
in Hiding will not include any portions or segments with
Hilary appearing on camera;
B. For a preliminary and permanent injunction, re-
straining defendants from any airing, licensing or dis-
tribution of the program, Hilary in Hiding, containing
segments showing Hilary on camera;
C. For an Order awarding plaintiffs their costs, ex-
penses and attorney’s fees; and
D. For such other and further relief as the Court may
deem appropriate.
Respectfully submitted,
qs/ Elaine Mittleman
ELAINE MITTLEMAN
Bar No. 317172
2040 Arch Drive
Falls Church, VA 22043
(703) 734-0482
Attorney for Dr. Foretich
/s/ Linda P. Holman
LINDA P. HOLMAN
Bar No. 341578
1800 11th St., N.W.
Suite 100
Washington, D.C. 20001-5015
(202) 797-1310
Guardian ad litem
for Hilary Foretich
64a
APPENDIX E
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Civil Action No. 90-796 SS
ERIC A. FORETICH, et a/.,
Plaintiffs
Vv. is,
LIFETIME CABLE, et al.,
Defendants.
ORDER
It is this 6th day of April 1990,
ORDERED that Nathan Lewin, Esquire, is appointed
Guardian ad Litem for the minor plaintiff Hilary
Foretich.
‘s/ Stanley Sporkin
STANLEY SPORKIN
United States District Judge
Copies to:
Elaine Mittleman, Esq.
2040 Arch Drive
Falls Church, VA. 22043
Linda P. Holman, Esq.
1800 11th St. N.W., Suite 100
Washington, D.C. 20001-5015
Lee Levine, Esq.
toss, Dixon & Masback
555 13th St. N.W., Suite 1300 East
Washington, D.C. 20004
Nathan Lewin, Esq.
Miller, Cassidy, Larroca & Lewin
2555 M St. N.W., Suite 500
Washington, D.C. 20037 ;
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.