Opposition Brief — Foretich v. Lifetime Cable

No. 90-35 uc i 880

TRE NAR TENET

| ae

IN THE

Supreme Court of the United Giaten

OCTOBER TERM, 1990

HILARY FORETICH,

Petitioner,

¥.

LIFETIME CABLE and BRITISH BROADCASTING CORP.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

BRIEF IN OPPOSITION

LEE LEVINE

(Counsel of Record)

MICHAEL D. SULLIVAN

JAMES E. GROSSBERG

SHARON R. VINICK

Ross, DIXON & MASBACK

555 Thirteenth Street, N.W.

Columbia Square

Washington, D.C. 20004

(202) 662-2000

Counsel for Respondents

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

ER le mr

BEST AVAILABLE COPY

QUESTION PRESENTED FOR REVIEW

Whether a trial court’s temporary restraining order,

barring the telecast of portions of a news documentary

of conceded public interest, was properiy vacated by an

appellate court because the moving party made no show-

ing to justify the injunctive remedy it sought.*

* Pursuant to Supreme Court Rule 29.1, Respondent British

Broadcasting Corp. states that it has no parent company and holds

shares of the following companies: Listener Publications, Ltd.;

House of Commons Broadcasting Unit, Ltd.; Broadcasters Audience

Research Board, Ltd.; Secuir S.A. (Belgium); Visnews, Ltd.; and

Multi Media Corporation, Ltd. Respondent Lifetime Cable is not a

legal entity. The Lifetime Television network is owned and operated

by Hearst/ABC-Viacom Entertainment Services, a joint venture,

acting as a partnership.

(i)

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEY ...................

TABLE OF AUTHORITIES .........................-...s-eseeeeeeeeess

CONSTITUTIONAL PROVISION INVOLVED ...........

py wy | i ht) ey | ie! || eee

REASONS FOR DENYING THE WRIT.......................

I. PETITIONER DID NOT CARRY ITS BUR-

DEN OF JUSTIFYING INJUNCTIVE RE-

II. PETITIONER RAISES A HYPOTHETICAL

ISSUE THAT IS NOT RIPE FOR REVIEW

II at kn clveseandiessicntinnnnatianacenntnnecinnnnanen

IT isda naiaenaesieehonnannentnsnibananbanaeinnennann

(iii)

Page

iv

TABLE OF AUTHORITIES

CASES Page

Bowen v. Roy, 476 U.S. 698 (1986) .......00 0. 14

California v. Rooney, 483 U.S. 307 (1987) ............. 7

Commonwealth v. Wiseman, 356 Mass. 251, 249

N.E.2d 610 (1969), cert. denied, 398 U.S. 960

PRI stances esi iciei en aiken recta 8,15

Communist Party v. Subversive Activities Control

kk ER) RR RL eee _ 14

Elrod v. Burns, 427 U.S. 847 (1976) ...........0.. 5

Estes v. Texas, 381 U.S. 582 (1965) ....00000. 15

Federal Food Service, Inc. v. Marshall, 481 F.

I, Cae BOD ccistseetcettincteiretneerns 7,9

Florida Star v. B.J.F., 109 S. Ct. 2608 (1989)... 8,9

Foretich v. Glamour, No. 89-3099 (D.D.C. April 8,

IIIT si csicun-calictencpaaiiiicsemiunaiadbsieitccian cnucatadiniciesaad a edladsate 9,14

veedman v. Maryland, 380 U.S. 51 (1965) .......... 7,12

Globe Newspaper Co. v. Superior Court, 457 U.S.

a ace ah cacse eh ak tae hceili cen gameidiiiaa ta aia ala 11

Huskey v. National Broadcasting Co., 632 F. Supp.

Se a is I a SN cicensstrinnncnnthsonsabcinnsnieeen 14, 15

Lewis v. Continental Bank Corp., 110 S. Ct. 1249

8 PRESS Ieee HF mnS Ree Ween EUS CUNT 14

Maryland v. Baltimore Radio Show, Inc., 338 U.S.

eae eee 15

Maryland v. Craig, 58 U.S.L.W. 5044 (U.S. June

BY cocaehinttaeihcnaasedaieiahhdiceaoeseieaiaimennieah cial occas tekeices 10

Morgan v. Foretich, 846 F.2d 941 (4th Cir.

SUITE -scesciedatad cenenlapeenanacieainsaassiasianensiemaunannameatictaisasiaeasiub 2,3

Morgan v. Foretich, 546 A.2d 407 (D.C. 1988)... 2

Morgan v. Foretich, 528 A.2d 425 (D.C. 1987)... 2,11

Murphy v. Hunt, 455 U.S. 478 (1982) ..........00...... 14, 15

Near v. Minnesota, 283 U.S. 697 (1930) ................. 7,8

Nebraska Press Association v. Stuart, 427 U.S.

Beer Eerie rant mn A oe RY 5, passim

Oklahoma Publishing Co. v. District Court, 480

I I A a ae aii sh eee amen inaecadaddiiatiae 15

Organization for a Better Austin v. Keefe, 402

ns MI IEEE aiinsiieshihabcounicecasinseniommuniiannemiicuansnn 15

Pittsburgh Press Co. v. Pittsburah Commission on

Human Relations, 443 U.S. 376 (1978) —............. 13

———

v

TABLE OF AUTHORITIES—Continued

Page

Smith v. Daily Mail Publishing Co., 443 U.S. 97

Se en RE ONTO TUES 9,10

Vassiliades v. Garfinkel’s, 492 A.2d 580 (D.C.

TIE inccosidanaceanisunsasupastabathcaaiainisddbaiensaadstuaminmenashdadmmnainniieas 9

Washington Metropolitan Area Transit Commis-

sion v. Holiday Tours, Inc., 559 F.2d 841 (D.C.

Iau: - MITE | odasciecshacteceslteanaiaanbaantiemmndaesaummeuensensanensanansies 7

Wolf v. Regardie, 553 A.2d 1213 (D.C. 1989) ........ 9

STATUTES

SU Mike I SUIT UII anicccconsohsivesiniessennsoncesnbacinennanen 2

OTHER AUTHORITIES

Abrams, In Defense of Tornillo, 86 YALE L.J. 361

ITIIIII <.csbsinbianecch bieisemsaaenentaedsanbainsapiondnndibiaemmmenemiaannntn 12

A. BICKEL, THE MORALITY OF CONSENT (1975)...... 12

Blasi, Toward a Theory of Prior Restraint: The

Central Linkage, 66 MINN. L. REV. 11 (1981).... ll

Emerson, The Doctrine of Prior Restraint, 20

LAW & CONTEMP. PROBS. 648 (1955) -................ 12

Fremon, The Real Elizabeth Morgan Story: What

the Jury Was Never Told, What the Judge Re-

fused to Hear, MOXIE, Feb. 1990 .......................... 4

Jeffries, Rethinking Prior Restraint, 92 YALE L.J.

Ge Cy ‘eceestiiniatencsn teeevcicedcerbenslentteentclainomnmnnaneen 11

Mayton, Toward a Theory of First Amendment

Process: Injunctions of Speech, Subsequent

Punishment, and the Costs of the Prior Re-

straint Doctrine, 67 CORNELL L. REV. 245

PITTI -siccensaieareseannesonncanoenneslisepstaianseaniaissanmausmadaeadnabies 12

Oakes, The Doctrine of Prior Restraint Since the

Pentagon Papers, 15 MicH. J. oF L. REFORM 497

ID cnsiicncneiniascininenbhasitseanaslr-cidedanidieaiennmaneeniammuats 12

Redish, The Proper Role of the Prior Restraint

Doctrine in First Amendment Theory, 70 VA.

ig San, FEE CIEE assis hsarriccnstheatuliousaieatanmenpbbicanaionts 12

RESTATEMENT (SECOND) OF TORTS (19877) ............ 9

Trebilcock, Hiding Hilary, GLAMOUR, Nov. 1989.... 4

L. TRIBE, AMERICAN CONSTITUTIONAL LAW (2d

TE, TI kicniecsecentntteisesscscnnisseetsrnneenenintenmianmescnannn 12

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

No. 90-35

HILARY FORETICH,

Petitioner,

Vv.

LIFETIME CABLE and BRITISH BROADCASTING CORP.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

BRIEF IN OPPOSITION

CONSTITUTIONAL PROVISION INVOLVED

First Amendment, United States Constitution:

Congress shall make no law .. . abridging the free-

dom of speech, or of the press. ...

STATEMENT OF THE CASE

Pursuant to Supreme Court Rule 24.2, respondents re-

spectfully supplement petitioner’s Statement of the Case

as follows:

1. The television documentary at issue (the “Docu-

mentary”), as petitioner correctly notes, examines the

2

“internationally publicized” dispute between Drs. Eliza-

beth Morgan and Eric Foretich concerning their daugh-

ter Hilary, “a subject of substantial public interest.” Pe-

tition for a Writ of Certiorari (‘Petition’), at 1-2, 6.

That dispute raises significant public policy issues re-

garding the ability of the American legal system to deal

effectively with charges of child sexual abuse. Dr. Mor-

gan’s highly publicized views with respect to those very

issues led her to violate court orders and place her daugh-

ter in hiding rather than permit Hilary to attend un-

supervised visits with her father. Indeed, the extraordi-

nary public interest regarding this matter is illustrated

by, among other things, the special legislation enacted by

Congress to release Dr. Morgan from her incarceration

for failure to obey the court’s orders. See Fub. L. No.

101-97 (1989).

2. At the center of this controversy are allegations

that Dr. Foretich sexually abused Hilary and, specifically,

the issue of whether those charges are accurate or are

the result of Hilary’s being “coached”” by Dr. Morgan.

See Appendix to Brief in Opposition (“R. App.) 6a {| 9

(Declaration of Stephen Lambert, admitted in evidence

in trial court). Equally central to the controversy are

various rulings of the District of Columbia Superior

Court including, inter alia, its decision to permit unsu-

pervised visits hetween Hilary and her father when that

Court had concluded that the evidence with regard to

whether he abused her was “in equipoise,” Morgan v.

Foretich, 546 A.2d 407, 410 (D.C. 1988), its order in-

earcerating Dr. Morgan for placing Hilary in hiding, and

its refusal to entertain videotaped evidence of Hilary de-

scribing her father’s abuse, see Morgan v. Foretich, 528

A.2d 425, 428 & n.6 (D.C. 1987). The Documentary fo-

cuses upon the Superior Court’s adjudication of these

issues, which are part and parcel of the larger debate

concerning the legal system’s competency in dealing with

conflicting claims of child abuse. See Morgan v. Foretich,

846 F.2d 941, 943 (4th Cir. 1988) (“Courts and legisla-

3

tures alike have struggled with this deeply troubling prob-

lem.”’)."

3. The undisputed evidence reveals that the viaeotaped

conversation between Hilary and her mother, which peti-

tioner seeks to enjoin, was neither “surreptitiously” nor

“covertly” filmed, as petitioner repeatedly contends. See,

e.g., Petition, at (i), 2, 3. Dr. Mary Froning, the child’s

treating psychologist, testified quite clearly and without

contradiction in the trial court that Hilary knew she was

being videotaped and that she knew that others, specifi-

cally Drs. Froning and Corwin, “would see the tape. We

made that clear to her.”” Appendix to Petition for a Writ

of Certiorari (“App.’’) 44a. Accordingly, petitioner’s self-

described “sole” rationale for seeking review in this

Court—i.e., “preventing the broadcast on television of the

surreptitiously taped private conversation | Hilary] had

with her mother,” Petition, at 2 (emphasis added)—

simp!y has no basis in fact.

4. Petitioner correctly notes that Dr. Froning did not

consult with Linda Holman, Esq., appointed by the Dis-

trict of Columbia Superior Court as a guardian ad litem

for Hilary, before consenting to Dr. Morgan’s providing

the videotapes to respondents. Petition, at 6. Dr. Fron-

ing’s undisputed testimony, corroborated by Dr. Fore-

tich’s counsel in open court, however, is that Ms. Holman’s

appointment is limited to supervising and reporting to

the Superior Court about Dr. Foretich’s court-ordered

1In one lawsuit instituted by Dr. Morgan and Hilary against

Dr. Foretich, the Fourth Circuit, including Justice Powell sitting

by designation, held that a child’s own statements often are the

best evidence of sexual abuse. See Morgan v. Foretich, 846 F.2d

at 943-50. Indeed, the court noted, “[o]ften, the child is the only

witness.” Jd. at 943. Thus, the videotape at issue speaks not only

to the truth of the sexual abuse claims against Dr. Foretich, but

also to Dr. Foretich’s allegation that Hilary was coached by her

mother to make the claims,

4

visits with Hilary. See App. 52a (Dr. Froning); App.

8a (Dr. Foretich’s counsel) .°

5. The tape recording at issue was provided to respond-

ents by Dr. Morgan, with the consent of Dr. Froning,

Hilary’s treating psychologist. App. 40a.* The original

recording presumably remains in Dr. Morgan’s possession.

Since respondents are the only defendants named in this

lawsuit, no other party would be bound by the injunctive

relief petitioner seeks. Moreover, virtually identical reci-

tations of Hilary’s own descriptions of her father’s al-

leged abuse, as well as portions of the challenged video-

tape itself, had been disseminated widely by the media

months before petitioner and Dr. Foretich instituted these

proceedings.*

2 Ms. Holman, who did not appear or testffy in the trial court

and who is a lawyer, not a clinician, has not seen Hilary Foretich

since 1987. The statements attributed to her in Dr. Foretich’s com-

plaint—i.e., that the “tape is being broadcast in violation of Hilary’s

doctor-patient privilege,” App. 62a—are particularly inapposite

since the videotape depicts Hilary talking with her mother, not her

doctor, and her mother, Hilary’s custodial parent and the other

party to the conversation, provided the tape to respondents.

3 Petitioner incorrectly states that the tape was provided to re-

spondents by Dr. Froning. See Petition, at 5; see also R. App. 5a-

6a (7 4, 6 (Declaration of Stephen Lambert).

4 See, e.g., Fremon, The Real Elizabeth Morgan Story: What the

Jury Was Never Told, What the Judge Refused to Hear, MOXIE,

Feb. 1990, at 22 (‘‘‘I see my daddy’s hiney,’ said Hilary, ‘and I go

like this . . .’ and she made licking motions with her mouth and

tongue.”); id. at 117 (“Hilary said, ‘Daddy spanked me with his

fucker’ and pointed to her own vaginal area and doll’s to show

where.” ) ; id. (‘“‘Hilary made clearer what her daddy did. She had the

doll representing Hilary lying in bed both face down and face up

with the daddy doll on top of her. She said he ‘poked his fucker in

my hiney.’ When asked where, she put her finger in the anus of the

Hilary doll and then said he put it in ‘the other hole, too’ and put

her finger in the vagina of the doll. Then she showed with the

daddy doll how the penis entered the anus and the vagina.”) ;

Trebilcock, Hiding Hilary, GLAMOUR, Nov. 1989, at 300 (“‘I see my

daddy’s heinie and go lick lick’”); id. (Hilary puts “daddy doll’s

5

6. There is absolutely no evidence in this record sup-

porting petitioner’s claim that “respondents’ commercial

arrangements with television stations apparently con-

trolled the timing of the broadcast.” Petition, at 6. In

fact, the scheduled telecasts, all of which have now been

completed, followed shortly after the public revelation

that Hilary Foretich is now living in New Zealand, the

commencement of legal proceedings there, and the relo-

cation of Dr. Morgan, after the return of her passport

by the Superior Court, to New Zealand.®

7. Dr. Froning did not testify, on cross-examination

or otherwise, that “it is ordinarily harmful to a child to

broadcast publicly the child’s account of sexual abuse.”

Petition, at 7. To the contrary, Dr. Froning, a licensed

psychologist with a doctorate in clinical psychology, see

App. 37a, testified that, when a child has been abused,

it is important that the child understand that there is

“really no shame for them to become public.” App. 45a.®

penis to her mouth” and says “ ‘Daddy’s heinie’’”’). In contrast to

the foregoing, the Documentary contains far less extensive and less

graphic references to Hilary’s accounts cf her abuse. See Petition,

at 4 n.3. See also R. App. 7a § 4 (Declaration of Lee Levine, ad-

mitted in evidence in trial court, referencing January 1990 CBS tele-

vision broadcast including other portions of videotape at issue).

5In any event, petitioner’s suggestion, that an asserted lack of

“urgency” supporting telecast ‘“‘on the particular dates in April”

chosen by respondents justifies “temporary” injunctive relief, is

demonstrably in error. Petition, at 6. This Court has long recog-

nized that the burden imposed on those seeking to enjoin expression

is in no sense “reduced by the temporary nature of a restraint.”

Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 559 (1976); see

Elrod v. Burns, 427 U.S. 347, 373-74 (1976) (“The loss of First

Amendment freedoms, for even minimal periods of time, unques-

tionably constitutes irreparable injury.”).

6 See App. 45a-46a (testimony of Dr. Froning) (“That’s because

of the context that incest occurs, which is that it is secret and that

it is done without anyonc else present. They have—children have

a feeling of shame about it... . I don’t believe that we, as a society,

should add to that shame.’’),

6

Moreover, Dr. Froning expressly disputed petitioner’s sug-

gestion that this is, by any stretch of the imagination, an

“ordinary” case. App. 56a. Indeed, based on her 87

therapy sessions with Hilary, see App. 38a, Dr. Froning

testified that “victims of child sexual abuse need to be

reassured that they have experienced nothing shameful

because of what has happened to them. I believe that the

airing of ‘Hilary in Hiding’ would provide such reassur-

ance to Hilary,” R. App. Za 7 10.

8. Neither petitioner nor Dr. Foretich offered any

evidence—not a single witness, declaration or exhibit—in

support of their application for injunctive relief. The

Court of Appeals based its ruling vacating the tempo-

rary restraining order on the papers submitted by the

parties, including the undisputed declarations submitted

by respondents and admitted into evidence, the complaint

and application for a temporary restraining order, and

the Documentary itself. It heard no oral argument from

counsel.

REASONS FOR DENYING THE WRIT

Petitioner’s submission is premised on two assertions:

“Not every order affecting future expression is presump-

tively unconstitutional” and “[j]udicial preservation of

an individual’s right to privacy may justify a court

order barring a television broadcast.” Petition, at 9,

10. As general principles of law, respondents have no

present occasion to debate either of these observations.

Neither proposition, however, supports petitioner’s re-

quest for review in this Court because (1) they are in

no manner inconsistent with the Court of Appeals deci-

sion at issue and (2) their application in this case does

not render legally permissible the trial court’s order (the

“Order”’) vacated by the Court of Appeals.

7

I. PETITIONER DID NOT CARRY ITS BURDEN OF

JUSTIFYING INJUNCTIVE RELIEF.

Petitioner’s first proposition—that “not every order af-

fecting future expression is presumptively unconstitu-

tional’”—may be accepted for present purposes. Presum-

ably, expression that is not protected by the First

Amendment enjoys no immunity from previous restraint

beyond that imposed by generally applicable doctrines of

equitable relief. See, e.g., Near v. Minnesota, 283 U.S.

697, 707-08 (1930) (suggesting that injunction pro-

hibiting obscenity is not presumptively unconstitu-

tional) ; Freedman v. Maryland, 380 U.S. 51, 54 (1965)

(same). Neither respondents nor the Court of Appeals

has purported to suggest otherwise.”

The Court of Appeals concluded, quite unremarkably,

that this petitioner had not made the requisite showing

to justify the injunctive remedy it sought.’ First, peti-

*The Court of Appeals’ one-paragraph order simply notes that

the trial court’s Order—concededly an injunction prohibiting future

expression—is presumptively invalid and that petitioner’s claims

must “be redressed in legal actions that do not require a prior

restraint in derogation of the First Amendment.” App. la. Fairly

read, especially given the expedited circumstances under which it

was rendered, the Court of Appeals’ unpublished order does not

purport to declare a broad rule that injunctive relief is never

permissible to redress privacy rights, but rather that this petitioner

had not met its burden in this case of demonstrating either that it

had stated a valid cause of action or that the expression at issue

is unprotected by the First Amendment. See pp. 8-11 infra; Califor-

nia v. Rooney, 483 U.S. 307, 311 (1987) (“This Court ‘reviews judg-

ments, not statements in opinions.’”’) (citations omitted).

8 The First Amendment nctwithstanding, all applicants for tem-

porary injunctive relief in the District of Columbia Circuit, includ-

ing petitioner, are required to carry the considerable burden of

demonstrating “that they have a substantial likelihood of success on

the merits, that without such relief they will suffer irreparable

harm, that the issuance of the injunction will not substantially

harm other interested parties, and that the granting of such relief

is in the public interest, or at least is not contrary to that interest.”

Federal Food Serv., Inc. v. Marshall, 481 F. Supp. 816, 818 (D.D.C.

1979) (citing Washington Metropolitan Area Transit Comm’n v.

8

tioner did not make any showing that the expression at

issue is unprotected by the First Amendment, and the

trial court purported to make no such determination.

Not only did the trial judge decline to view more than

three minutes of the forty-minute program, see App->

12a, he expressly stated that “the concern I have is

really not with the first amendment. The concern I have

is with this young child,” App. 28a. The Order contains

no findings that the expression at issue, which concededly

addresses ‘“‘a subject of substantial public interest,” Peti-

tion, at 6; see Florida Star v. B.J.F., 109 S. Ct. 26038,

2611 (1989), is unprotected by the First Amendment

and recites no facts that would support such a conclu-

sion in any event, see App. 3a-4a.

Second, although petitioner contended in the trial

court that its claim sounded in the tort of invasion of

privacy, see App. 22a, the lawyer who instituted the pro-

ceedings in Hilary Foretich’s name disagreed, see App.

33a, and the trial judge expressly disclaimed reliance on

the privacy tort in enjoining the telecast, see App. 3la.

Indeed, the trial judge acknowledged that, although he

“‘believe[d] there is a cause of action,” he did not know

“how the parties are going to be able to articulate it,”

App. 3la. Thus, the trial court’s restraining order was

premised on no identifiable legal right asserted by peti-

tioner, whether flowing from the Constitution, see Ne-

braska Press Association v. Stuart, 427 U.S. 539 (1976)

(prior restraint request based on Sixth Amendment),

statute, see Near v. Minnesota, 283 U.S. 697 (1930)

(prior restraint sought pursuant to statutory nuisance

regulation), the law of contract, see Commonwealth v.

Wiseman, 356 Mass. 251, 259, 249 N.E.2d 610, 615

(1969), cert. denied, 398 U.S. 960 (1970) (prior re-

Holiday Tours, Inc., 559 F.2d 841, 842 (D.C. Cir. 1977)). As the

following discussion demonstrates, petitioner made no such showing.

a

9

straint permissible where defendant violates agreement),

or common law tort.®*

® The trial court’s reluctance to premise injunctive relief on the

invasion of privacy tort is understandable since petitioner, even if

it had endeavored to do so, could not demonstrate “a substantial

likelihood for success on the merits” of that claim. Federal Food

Serv., Inc. v. Marshall, 481 F. Supp. at 818. Although this is not

the forum to debate in detail the merits of petitioner’s invasion of

privacy claim, suffice it to say that it faces a number of imposing

hurdles, none of which petitioner even attempted to clear in the

trial court: (1) Virginia, where Dr. Foretich resides, does not even

recognize the tort, see Foretich v. Glamour, No. 89-3099, slip op. at

6 (D.D.C. Apr. 3, 1990) (Gesell, J.) (dismissing another invasion of

privacy claim sought to be instituted by Dr. Foretich on his and

Hilary’s behalf); (2) the District of Columbia, where Hilary last

resided in the United States, precludes invasion of privacy claims

unless “the public has no legitimate concern” in the subject matter

of the allegedly invasive publication, Wolf v. Regardie, 553 A.2d

1213, 1220 (D.C. 1989); see Petition, at 1-2, 6 (petitioner concedes

existence of public controversy surrounding legal dispute concerning

Hilary Foretich); (3) since the tapes at issue were provided to

respondents by Dr. Morgan, Hilary’s custodial parent, with the

consent of her treating psychologist, such “[c]lear evidence of

consent will insulate a party from liability” for invasion of privacy,

Vassiliades v. Garfinkel’s, 492 A.2d 580, 590 (D.C. 1985); and (4)

since there is no privacy right under District of Columbia law

attaching to “matters already publicly released” in the news media,

Wolf v. Regardie, 553 A.2d at 1219, the literally thousands of

articles and broadcasts in this country and abroad discussing the

allegations of sexual abuse against Hilary, displaying her image by

photograph and film, and repeating Hilary’s own statements regard-

ing the nature of the alleged sexual abuse, would appear to preclude

petitioner’s cause of action as a matter of law. See RESTATEMENT

(SECOND) OF TorRTS § 652D, comment b (1977) (“[tl]here is no lia-

bility when the defendant merely gives further publicity to informa-

tion about the plaintiff that is already public’’).

In this regard, petitioner quite clearly misconstrues this Court’s

decisions in Florida Star v. B.J.F., 109 S. Ct. 2603, and Smith v.

Daily Mail Publishing Co., 443 U.S. 97 (1979). In those decisions,

this Court did not restrict its holdings to cases in which the infor-

mation at issue had been supplied by a “government agency,” as

petitioner suggests, see Petition, at 13; rather, it held that ‘‘once

the truthful information was ‘publicly revealed’ or ‘in the public

domain’ [a] court could not constitutionally restrain its dissemina-

10

Third, the sole basis for the trial court’s Order—that

petitioner would suffer “irreparable harm” if the Docu-

mentary were not enjoined—is directly at odds with the

only evidence before the court. Dr. Mary Froning, a li-

censed psychologist who had treated Hilary Foretich on

more than 80 occasions, testified both in court and by

declaration that, rather than causing her any harm, the

telecast would “help|] create an atmosphere of protec-

tion for her.” App. 43a. Petitioner offered no evidence,

documentary or testimonial, to the contrary. Indeed, pe-

titioner offered no evidence at all. Petitioner’s court-

appointed counsel acknowledged that, prior to seeking

injunctive relief, he had not had the opportunity to con-

sult, inter alia, with his client, the child’s mother, the

child’s court-appointed guardian in New Zealand (where

she currently resides), or with a single expert in such

matters (with the exception of Dr. Froning, who point-

edly disagreed with his conclusions). See App. 25a.

Neither parent, no relatives, no experts other than Dr.

Froning—in fact, no other witnesses—testified in court

or provided testimony by declaration or affidavit in sup-

port of petitioner’s prayer for injunctive relief. See

App. 55a-56a.

Petitioner observes that a State’s “interest in the ‘pro-

tection of minor victims of alleged sex crimes from fur-

ther trauma and embarrassment,’”’ can be a “ ‘compeil-

ing’ one.” Petition, at 12 (quoting Maryland v. Craig,

58 U.S.L.W. 5044, 5048 (U.S. June 27, 1990)). Even

putting aside any State’s failure to authorize, by legisla-

tive enactment, vindication of that interest through in-

junctions prohibiting publication or broadcast, petitioner

never attempted to make the requisite “showing of nec-

essity” in this case to demonstrate the propriety of the

tion.” 109 S. Ct. at 2610 (quoting Smith v. Daily Mail Publishing

Co., 443 U.S. at 103). In Smith, moreover, the Court expressly de-

clined, even in the context of subsequent punishment, to limit its

holding to cases in which “government itself provided or made

possible press access to the information.” 443 U.S. at 103.

11

relief it sought. Zd. at 5049; accord Globe Newspaper

Co. v. Superior Court, 457 U.S. 596, 608 (1982) (in con-

text of court closure for minor’s testimony, “it is clear

that the circumstances of the particular case may affect

the significance of the interest,” so court must weigh

“victim’s age, psychological maturity and understand-

ing, . . . the desires of the victim, and the interests of

parents and relatives”’) .'°

Not one of the several commentators referenced by

petitioner has questioned this Court’s consistent place-

ment of the burden of proof upon any litigant that seeks

judicial intervention in the field of free expression,

whether through prior restraint or subsequent punish-

ment." To the contrary, the commentators—and, more

10 At a minimum, any serious effort to suggest that Hilary

Foretich would be harmed by telecasts of the Documentary in the

United States must come to grips with the undisputed facts that

(a) she now resides in New Zeaiand; (b) her name, her picture,

and her own accounts of her abuse have been widely disseminated

by both the print and electronic media; (c) she has been the subject

of an ongoing dispute between her parents that has led to her

mother spending 25 months in prison and to the surreptitious

transfer of Hilary from the United States to New Zealand where

she lived in hiding for two years; and (d) she and her mother, at

the very least, believe she has been repeatedly subject to sexual abuse

by her father. In that regard, petitioner’s citation to Morgan v.

Foretich, 528 A.2d 425 (D.C. 1987), is particularly inapposite.

Not only does that case address a decidedly different issue—i.e.,

Dr. Morgan’s right to a public hearing—it was rendered in 1987,

before Hilary’s name and the allegations that she had been abused

had become the subject of worldwide attention, before Dr. Morgan’s

lengthy incarceration, and before Hilary was taken to New Zealand.

Even that decision, however, unlike the Order in the instant case,

was rendered after the court heard extensive evidence and made

specific findings about the circumstances that obtained at that time.

See id. at 426.

1 See, e.g., Blasi, Toward a Theory of Prior Restraint: The

Central Linkage, 66 MINN. L. REV. 11, 93 (1981) (“[t]he concept of

prior restraint is coherent at the core”); Jeffries, Rethinking Prior

Restraint, 92 YALE L.J. 409, 434 (1983) (“conventional” prior re-

straint doctrine unnecessary because “superseded by the expanded

12

importantly, this Court—have uniformly recognized that

“temporary” restraining orders, such as the trial court’s

order in this case, “present a threat to first amendment

rights not found in subsequent punishment schemes—

the threat that expression will be abridged, if only for

a short time, prior to a full and fair hearing before an

independent judicial forum to determine the scope of

the speaker’s constitutional right.” Redish, The Proper

Role of the Prior Restraint Doctrine in First Amendment

Theory, 70 Va. L. REV. 53, 55 (1984). Accord Freed-

man v. Maryland, 380 U.S. at 58 (“the burden of prov-

ing that the film is unprotected expression must rest on

the censor”); Nebraska Press Association v. Stuart, 427

U.S. at 559 (“A criminal penalty or a judgment in a

defamation case is subject to the whole panoply of pro-

tections afforded by deferring the impact of the judg-

ment until all avenues of appellate review have been ex-

hausted.”’).

The essential wisdom of this Court’s decisions is well

illustrated by the instant case. Although there is a sub-

stantial body of professional opinion, referenced by Dr.

Froning in her testimony, that “victims of child sexual

abuse need to be reassured that they have experienced

nothing shameful because of what has happened to

them,” R. App. 2a 10, the trial court, based solely on

its review of less than three minutes of a forty-minute

telecast, without the support of any testimony from

substantive coverage of the First Amendment”); Mayton, Toward

a Theory of First Amendment Process: Injunctions of Speech, Sub-

sequent Punishment, and the Costs of the Prior Restraint Doctrine,

67 CORNELL L. REv. 245, 249 (1982) (same). The lion’s share of

scholarship has, moreover, embraced this Court’s prior restraint

iurisprudence and the historical tradition upon which it is premised.

See, e.g., A. BICKEL, THE MORALITY OF CONSENT 61 (1975); L.

TRIBE, AMERICAN CONSTITUTIONAL LAW § 12-34, at 1039-42 (2d ed.

1988): Emerson, The Doctrine of Prior Restraint, 20 Law &

CONTEMP. PRoss. 648, 671 (1955); Abrams, Jn Defense of Tornillo,

86 YALE L.J. 361, 367 (1976); Oakes, The Doctrine of Prior Re-

straint Since the Pentagon Papers, 15 MiIcH. J. OF L. REFORM

497 (1982).

13

either expert or lay witnesses familiar with the under-

lying facts, and while acknowledging that it could not

and would not attempt to untangle the merits of the

underlying dispute between Hilary’s parents, concluded

that the telecast was “bad stuff” and should be enjoined.

App. 13a. It is plain that the trial court’s Order was

premised on its and its appointed representative's “gut

reaction” that the portion of the Documentary they

viewed was “offensive,” a reaction that the First

Amendment precludes them from according the force of

law.

Simply put, petitioner made no showing in the trial

court that the expression at issue in this case is unpro-

tected by the First Amendment. Under such circum-

stances, it has been universally recognized that the “spe-

cial vice of a prior restraint is that communication will

be suppressed . . . before an adequate determination that

it is unprotected by the First Amendment.” Pittsburgh

Press Co. v. Pittsburgh Commission on Human Rela-

tions, 413 U.S. 376, 390 (1973).

II. PETITIONER RAISES A HYPOTHETICAL ISSUE

THAT IS NOT RIPE FOR REVIEW IN THIS

COURT.

Petitioner’s failure to make any showing in support of

its request for a temporary restraining order renders its

second proposition—that “judicial preservation of an in-

dividual’s right to privacy may justify a court order bar-

ring a television broadcast”—decidedly hypothetical and,

at the very least, premature. As petitioner notes, it has

now filed an amended complaint in the trial court alleg-

ing invasion of privacy and seeking both damages and in-

junctive relief. Petition, at 13 n.7. Unlike the defendants

12 See, e.g., App. 34a (court complained that very act of obscuring

the child’s face, at the request of her treating psychologist, App.

40a, was “absolutely brutal” and “particularly bothersome”) (em-

phasis added).

14

in Huskey v. National Broadcasting Co., 632 F. Supp.

1282 (N.D. Ill. 1986), respondents have not moved to

strike petitioner’s prayer for injunctive relief. Accord-

ingly, if petitioner succeeds in carrying its burdens of

(1) securing the trial court’s consent to pursue this liti-

gation in the name of Hilary Foretich,’* and (2) prevail-

ing upon its substantive claim that the Documentary con-

stitutes an actionable invasion of privacy, there is noth-

ing in the Court of Appeals order that precludes peti-

tioner from asking the lower courts to determine whether

judicial preservation of this individual’s right to privacy

justifies a court order barring further telecasts of this

expression. At present, however, even if petitioner were

correct and this case were “not moot, it surely is not ripe”

for review in this Court. Bowen v. Roy, 476 U.S. 693,

722 (1986) (Stevens, J., concurring) ; accord Communist

Party v. Subversive Activities Control Board, 367 USS.

1. 71-72 (1961) (“No rule of practice of this Court is

better settled than ‘never to anticipate a question of con-

stitutional law in advance of the necessity of deciding

) 3

* 99

it.’”’) (eitation omitted

13 In another action alleging invasion of privacy that Dr. Foretich

sought to prosecute in Hilary’s name, Judge Gerhard Gesell de-

clined to appoint a guardian to assert such claim See Foretich

v. Glamovr, No. 89-3099 (D.D.C. Apr. 3, 1990).

14 The same concerns underly the cases cited by petitioner in

connection with its suggestion that this matter is not moot. See,

e.g., Lewis v. Continental Bank Corp., 110 S. Ct. 1249, 1253 (1990)

(Article III courts confined “to resolving ‘real and substantial con-

trovers[ies] admitting of specific relief through a decree of a

conclusive character, as distinguished from an opinion advising

what the law would be upon some hypothetical state of facts’ ”’)

(citation omitted); Murphy v. Hunt, 455 U.S. 478, 482 (1982)

(“The Court has never held that a mere physical or theoretical

possibility was sufficient. . . .”). Where, as here, the scheduled

broadcasts by respondents have all been completed and “contingent

future events,” including petitioner prevailing on the merits in the

trial court, “may not occur at all,” Lewis v. Continental Bank Corp.,

110 S. Ct. at 1255, there can be no “ ‘reasonable expectation’ or a

‘demonstrated probability’ that the same controversy will recur

15

The only two cases relied upon by petitioner illustrate

the point. In Huskey, the trial court, in denying defend-

ant’s motion to strike plaintiff’s prayer for injunctive re-

lief, emphasized that its “denial of that motion should not

be misunderstood as a decision confirming the actual

availability of injunctive relief here. This opinion holds

only that injunctive relief is not necessarily improper.

Only a future evidentiary showing will demonstrate

whether or not such relief is appropriate in fact.” 632

F. Supp. at 1296 (emphasis in original).’* And, in Com-

monwealth v. Wiseman, 249 N.F.2d at 612, the Massachu-

setts court emphasized that injunctive relief was ordered

following ‘2,556 pages of proceedings on eighteen trial

days and sixty-four exhibits.”’* Thus, not only does

involving the same complaining party,” Murphy v. Hunt, 455 U.S

at 482.

Judge Shadur’s opinion in Huskey, moreover, expressly ac-

knowledges the need to “tread gingerly in the area of prior re-

straints,” whether “private” or “public” wrongs are alleged. 632

F. Supp. at 1294. In that regard, in Nebraska Press Association

v. Stuart, this Court reaffirmed that “the barriers to prior restraint

remain high,” 427 U.S. at 561, even when injunctive relief is sought

to vindicate “the most fundamental of all freedoms,” an individual’s

right to a fair trial, Estes v. Texas, 381 U.S. 582, 540 (1965):

accord Organization for a Better Austin v. Keefe, 402 U.S. 415.

419-20 (1971) (“[dJesignating the conduct as an invasion of pri-

vacy, the apparent basis for the injunction here, is not sufficient to

support” a prior restraint); Oklahoma Publishing Co. v. District

Court, 430 U.S. 308, 311-12 (1977) (reversing order enjoining news

media from publishing name or picture of eleven-year-old boy be-

cause it “abridges the freedom of the press”).

'6 In addition, the decision in Wiseman is premised not on a dis-

tinction between “public” and “private” rights, as petitioner con-

tends, see Petition, at 11, but on defendant’s failure to secure re-

leases from the patients he photographed, despite his agreement to

do so as a condition of gaining special access to the hospital from

State officials. See 249 N.E.2d at 615. Of course, this Court’s denial

of certiorari in Wiseman, which preceded the decisions in Nebraska

Press Ass'n, Keefe, and Oklahoma Publishing, is in no sense an

adjudication of the merits of that case, petitioner’s suggestion to

the contrary notwithstanding, see Petition, at 11. Seé Maryland v.

16

petitioner fail to identify any judicial decision that con-

flicts with the Court of Appeals’ order here, those deci-

sions it does c.te are demonstrably consistent with the

Court of Appeals’ conclusion.

In the last analysis, petitioner asks this Court to spec-

ulate about a host of matters that petitioner has not even

begun to satisfy its burden of proving. Based on such

speculation, it urges this Court to give its imprimatur to

“the most serious and least tolerable infringement on

First Amendment rights.” Nebraska Press Association v.

Stuart, 427 U.S. at 559. The Court of Appeals properly

vacated the trial judge’s Order precisely because peti-

tioner had not met its burden. Resort to this Court is

plainly unwarranted unless and until petitioner prevails

on the merits in the ongoing proceedings in the trial court

and then presses its claim for injunctive relief.

CONCLUSION

For the foregoing reasons, respondents the British

Broadcasting Corp. and Lifetime Cable respectfully re-

quest that the Petition for Writ of Certiorari be denied.

Respectfully submitted,

LEE LEVINE

(Counsel! of Record)

MICHAEL D. SULLIVAN

JAMES E. GROSSBERG

SHARON R. VINICK

Ross, DIXON & MASBACK

555 Thirteenth Street, N.W.

Columbia Square

Washington, D.C. 20004

(202) 662-2000

Counsel for Respondents

Baltimore Radio Show, Inc., 338 U.S. 912, 919 (1950) (Frankfurter,

wile

APPENDIX

la

APPENDIX

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

CA No. 90-0796-SS

Eric A. FORETICH, et al.,

Plaintiffs,

¥e

LIFETIME CABLE, et al.,

Defendants.

DECLARATION OF DR. MARY L. FRONING

Pursuant to 28 U.S.C. § 1746, Dr. Mary Froning does

hereby depose and state as follows:

1. I have personal knowledge of the facts sworn to

in this Deciaration.

2. I received my doctorate in psychology from the

Illinois School of Professional Psychology.

3. I am currently a co-director of White Oak Psycho-

logical Center. My specialty is child psychology and

sexual abuse.

4. From August of 1984 to January of 1989, I also

was employed as the senior staff psychologist at the

Chesapeake Institute in Wheaton, Maryland.

5. During the course of my employment at Chesa-

peake, I was assigned the case of Hilary Foretich who

I began seeing in January of 1986. I saw Hilary con-

tinuously on a weekly, and sometimes, by-weekly basis

until August 18, 1987. There were 87 separate sessions.

2a

6. In the fall of 1989, I was in contact with Stephen

Lambert of the British Broadcasting Corporation con-

cerning the documentary which they were preparing

about Hilary Foretich. Mr. Lambert was aware of the

existence of videotapes of Hilary Foretich in my pos-

session and asked my permission to use the tapes as part

of the documentary which was being prepared.

7. I provided those tapes to Elizabeth Morgan, who

transmitted the tapes te Mr. Lambert, with my permis-

sion. However, these tapes were provided to Mr. Lam-

bert on the express condition that Hilary’s face would

be obscured from view.

8. I have reviewed the program “Hilary in Hiding”

which I understand is at issue in this litigation.

9. In my professional judgment, the showing of this

program would help to create an environment of protec-

tion for Hilary and would not otherwise be harmful to

her well-being.

10. It is my professional opinion that victims of child

sexual abuse need to be reassured that they have ex-

perienced nothing shameful because of what has hap-

pened to them. I believe that the airing of “Hilary in

Hiding” would provide such reassurance to Hilary.

Executed on this 6th day of April, 1990, in the Dis-

trict of Columbia.

/s/ Mary L. Froning, Psy. Dr.

Dr. MARY L. FRONING

3a

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

CA No. 90-0796-SS

ERIC A. FORETICH, et ai.,

Plaintiffs,

V.

LIFETIME CABLE, et al.,

Defendants.

DECLARATION OF PATRICK GUY

Pursuant to 28 U.S.C. § 1746, Patrick W. Guy does

hereby depose and state as follows:

1. I have personal knowledge of the facts sworn to

in this Declaration.

2. I am a member of the Bar of the State of New

York.

3. I am Vice President of Legal and Business Af-

fairs for Hearst/ABC-Viaccm Entertainment Services

(“HAVES”), a joint venture that is licensed by the

British Broadcasting Corporation (the “BBC”) to tele-

cast the documentary “Hilary in Hiding,” which is the

subject of this litigation. A tape of the documentary

is submitted to the Court herewith as Exhibit A to this

Declaration. HAVES also operates the Lifetime Tele-

vision network (the ‘“network’’). The network is a 24-

hour program service offering news, entertainment and

information programming to approximately 47 million

households through affiliated cable systems.

4. “Hilary in Hiding” was telecast in its entirety

over the network on March 6, 1990. The March 6, 1990

4a

documentary was provided to all affiliated cable systems

and, upon information and belief, was transmitted to all

of the subscribers of those affiliates.

5. The telecasts of “Hilary in Hiding” scheduled by

the network for April 6, 7, 14 and 19, 1990 will be iden-

tical to the program that was telecast on March 6, 1990,

and which is recorded on Exhibit A.

6. Prior to the March 6, 1990 telecast of the docu-

mentary, I had a telephone conversation with Elaine

Mittleman, counsel for plaintiff Eric A. Foretich. Dur-

ing that conversation, Ms. Mittleman demanded to know

what portions of videotape depicting Hilary Foretich

would be telecast on the program. I described to her

the contents of the tapes shown in the documentary. Ms.

Mittleman objected to the showing of the tapes but

conceded that, in light of the constitutional presump-

tion against prior restraints on the news media, she

probably would not succeed in preventing broadcast of the

tapes. No legal action of any kind was brought to pre-

vent the March 6, 1990 telecast of the documentary.

I declare under penalty of perjury that the foregoing

is true and correct.

Executed on this 6th day of April, 1990, in Astoria,

New York.

/s/ Patrick W. Guy

PATRICK W. GUY

5a

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

CA No. 90-0796-SS

ERIC A. FORETICH, et al.,

Plaintiffs,

Ve

LIFETIME CABLE, et ai.,

Defendants.

DECLARATION OF STEPHEN LAMBERT

Pursuant to 28 U.S.C. § 1746, Stephen Lambert does

hereby depose and state as follows:

1. I have personal knowledge of the facts sworn to in

this Declaration.

2. I produced the program entitled “Hilary in Hiding.”

3. The program “Hilary in Hiding” includes a video-

tape of Hilary, which was filmed in the office of Mary

Froning, a child abuse expert (the “videotape”). In the

videotape, Hilary, through words and the use of anatomi-

cally correct dolls, explains and illustrates the sexual acts

which her father allegedly performed on her and Heather.

her step-sister.

4. The videotape was given to me by Dr. Elizabeth

Morgan, Hilary’s mother.

5. The videotape was filmed by Dr. Mary Froning; Dr.

Froning was Hilary’s therapist between February of

1986 and August of 1987.

6. Both Dr. Morgan and Dr. Froning were contacted

regarding the advisability of including the videotape in

6a

“Hilary in Hiding.” Dr. Morgan and Dr. Froning both

consented to the inclusion of the videotape in “Hilary in

Hiding.”

7. In order to protect the privacy interests of Hilary,

we used recording techniques that obscured Hilary’s face.

Therefore, at no time was Hilary readily identifiable.

8. Prior to the first broadcast of “Hilary in Hiding”

in the United States, Eric Foretich was given an oppor-

tunity to preview the program. On February 13, 1990,

Eric Foretich visited our London office and viewed the

program, including the videotape. Until the filing of this

lawsuit, Foretich did not indicate that he had objections

to the program or the inclusion of the videotape as part

of the program on the grounds which he currently as-

serts in the Complaint and supporting documents.

9. Throughout the dispute regarding the alleged sexual

abuse of Hilary, Foretich has maintained that Hilary

personally has not asserted charges of sexual abuse

against her father and that she was “coached” by her

mother, Dr. Morgan. As a matter of fact, the question

of whether Hilary was coached by Dr. Morgan is a cen-

tral issue of the controversy. The videotape provides evi-

dence which is highly relevant to the question of whether

Hilary was coached by Dr. Morgan.

Executed on this 6th day of April, 1990, in London,

England.

/s/ Stephen Lambert

STEPHEN LAMBERT

7a

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

CA No. 90-0796-SS

Eric A. FoRETICH, et ai.,

Plaintiffs,

V.

LIFETIME CABLE, et ai.,

Defendants.

DECLARATION OF LEE LEVINE

Pursuant to 28 U.S.C. § 1746, Lee Levine does hereby

depose and state, upon information and belief, as follows:

1. I have personal knowledge of’ the facts attested to in

this Declaration.

2. I am a member of the Bar of this Court and of the

District of Columbia Court of Appeals.

3. On January 20, 1990, the program “Saturday Night

With Connie Chung,” which is broadcast on the CBS tele-

vision network, contained a segment entitled “Morgan v.

Foretich.” A videotape of this segment is submitted to

the Court herewith as Exhibit A to this Declaration.

4. Depictions of Hilary Foretich substantially similar

to those contained in the documentary “Hilary in Hid-

ing” (the “documentary”), which is the subject of this

litigation, were broadcast throughout the United States

on January 20, 1990, on “Saturday Night With Connie

Chung,” during the segment entitled “Morgan v. Fore-

tich.”

5. In addition, countless newspaper articles, published

in both national and Washington, D.C. area publications,

8a

have reported on the subjects and events examined in the

documentary.

6. Depictions of Hilary Foretich substantially similar

to those included in the documentary have previously been

broadeast or teleeast by international, national and local

broadcast and cable media.

7. Countless newspaper and magazine articles have

nublished allegations and facts regarding the alleged sex-

ual abuse of Hilary Foretich by Eric Foretich. Many of

these articles have reported and discussed Hilary’s own

statements regarding the nature of the sexual abuse she

claims her father perpetrated upon her. Many of these

statements are substantially similar to those contained in

the documentary at issue. See, e.g., Exhibit B hereto.

I declare under penalty of perjury that the foregoing

is true and correct.

Executed on this 6th day of April, 1990, in Washing-

ton, D.C.

‘'s/ Lee Levine

LEE LEVINE