Olivia N. v. National Broadcasting Co.

On September 10, 1974, the National Broadcasting Company (NBC) and the Chronicle Broadcasting Company (CBC) (defendants) telecast nationwide and locally a film entitled Born Innocent that depicted the harmful effect of a state-run home upon an adolescent girl who was violently attacked and forcibly artificially raped by four adolescent girls. Four days later, on September 14, 1974, Olivia N. (plaintiff), aged nine, was similarly attacked and forcibly artificially raped by minors who had viewed and discussed the assault scene in Born Innocent. Olivia sued NBC and CBC for negligence and sought damages for her physical and emotional injuries inflicted by her assailants. Olivia did not allege that NBC or CBC’s broadcast of the film constituted incitement under the Brandenburg v. Ohio standard of incitement to imminent lawless action, but did offer to show that the broadcasters had knowledge of studies on child violence and should have known that susceptible persons might imitate the crime enacted in the film. The case was initially dismissed before trial, then on remand it was dismissed again after opening statements because Olivia failed to claim that the broadcasters intended that violence follow its broadcast. Olivia appealed and argued that the Brandenburg incitement standard did not preclude recovery when there is negligence or that a different definition of incitement should be applied to her case.