# Petition for Writ of Certiorari — Foretich v. Lifetime Cable > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_1781%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1990 - **Citation:** 498 U.S. 847 ## Text |, Supreme Court, U8, 90-35 {i Fired | | || suk 9 tm 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 BURR ED OE EPO BED «0... scan sacvascccccececceccecccecceccce iv i cunucuenaeensnussbansenenccounes 1 sc csusmunniaasnaacacsennens oe 1 Ss snslinnuucncdasbbecicubevecascccues 1 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 Be I MII vccccnnxsscncccsesnsccees 6 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 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]