## Facts

- A television network and a local station broadcast a made-for-television film, “Born Innocent,” depicting violence in a juvenile institution.
- The film included a graphic assault scene in which a girl was forcibly attacked and penetrated with a toilet plunger by other girls.
- Days after the broadcast, Olivia N., a nine-year-old child, was attacked at a public beach by several minors who allegedly held her down, removed her clothing, and assaulted her with a bottle.
- The complaint alleged the assailants had watched the broadcast and were inspired by the film’s assault scene to commit the attack.
- The complaint further alleged defendants knew or should have known viewers might imitate the depicted criminal acts, yet broadcast the film in prime time.
- The trial court denied summary judgment, but before jury selection the judge privately viewed the film, concluded it could not reasonably be deemed to cause the attack, and entered judgment for defendants without impaneling a jury.

## Issues

1. Whether entering judgment after the judge privately viewed the film and made factual findings—without impaneling a jury—violated the plaintiff’s right to a jury trial.
2. Whether, consistent with the First Amendment, tort liability for injuries caused by third-party criminals may be imposed based on a fictional television broadcast, and what constitutional standard governs (incitement versus negligence).

## Decision

- The appellate court reversed the judgment and remanded with directions to impanel a jury and proceed to trial.
- The trial court erred by deciding disputed factual matters (including whether the film could have incited the conduct) and entering judgment without a jury.
- The court recognized that a television drama is protected expression, and that damages may be imposed only within narrowly limited categories of unprotected speech, including incitement under the governing constitutional test.
- The court did not determine whether the broadcast actually constituted incitement; it held that factual questions bearing on that determination could not be resolved solely by the judge in this procedural posture.

## Legal Principles

- Fictional television broadcasts are protected by the First Amendment; civil damages based on broadcast content are constitutionally constrained unless the expression falls within a narrowly limited unprotected category.
- Liability predicated on “incitement” requires proof meeting the constitutional standard: the expression must be directed to producing imminent lawless action and likely to produce such action.
- In a jury-triable civil action, the court decides the controlling constitutional and legal standards, but the jury must decide disputed factual questions (including causation and whether the challenged expression satisfies the incitement standard) unless properly removed from the jury under established procedures.

## Conclusion

The court reversed because the trial judge improperly displaced the jury by privately viewing the film and making factual findings to enter judgment; any claim seeking damages based on broadcast content must proceed, if at all, under the stringent First Amendment limits applicable to incitement, with disputed facts decided by a jury.


Olivia N. v. Nat'l Broad. Co., 74 Cal. App. 3d 383, 141 Cal. Rptr. 511 (Ct. App. 1977)