State high court revives suit against revised child pornography reporting law

The state Supreme Court on Thursday rejected Attorney General Xavier Becerra's bid to dismiss a lawsuit by therapists challenging a state law requiring them to report patients who admit they have downloaded and viewed child pornography.

Justice Goodwin H. Liu wrote for a 4-3 majority that overturned a 2nd District Court of Appeal decision dismissing the complaint on demurrer. Instead, he remanded the case to gather more evidence to determine the constitutionality of a 2014 statute, AB 1775, that amended the Child Abuse and Neglect Reporting Act.

The law expanded the definition of sexual exploitation under the reporting law to include downloads, streams, and access through any electronic or digital media.

Plaintiffs asserted a "cognizable privacy interest under the California Constitution" to allow it to survive efforts by the attorney general and Los Angeles County District Attorney Jackie Lacey to kill it at an early stage, Liu wrote.

The closely-divided court was torn between arguments by therapists' attorneys about the right of privacy of patients who viewed child pornography, but were not involved in its distribution, and state prosecutors' contention that patients who viewed child pornography had no right to privacy.

In a sharp dissent, Chief Justice Tani Cantil-Sakauye wrote patients who viewed or possessed child pornography had no reasonable expectation of privacy from their therapists because the Child Abuse and Neglect Reporting Act has long been in effect.

She added "the compelling state interest in protecting children from the harm caused by sexual exploitation over the Internet will almost certainly outweigh the alleged privacy invasion," adding those violations occurred each time the pornography was viewed. Justices Carol A. Corrigan and Ming W. Chin concurred in the dissent.

"Our holding does not mean the reporting requirement is unconstitutional; it means only that the burden shifts to the state to demonstrate a sufficient justification for the incursion on privacy as this case moves forward," Liu wrote. Mathews et al. v. Becerra et al., 2019 DJDAR 12043 (California Supreme Court, filed Dec. 26, 2019).

Liu's opinion was joined by Justices Mariano-Florentino Cuellar, Joshua P. Groban and Leondra R. Kruger -- all appointees of former Gov. Jerry Brown.

Mark S. Hardiman, a partner with Nelson Hardiman LLP who represents the therapists, could not be reached for comment Thursday. During oral arguments in October, he told the high court requiring psychotherapists to report patients who view child pornography would undermine the state's compelling interest that they go to therapists in the first place.

The statute, he said, "appears to require the reporting of sexting between teenagers."

During oral arguments, Deputy Solicitor General Aimee A. Feinberg rejected the therapists' argument.

"There is no reasonable expectation of privacy in the disclosure of the fact that the patient has engaged in the downloading of child pornography," she told the justices.

Trenton H. Norris, a partner with Arnold & Porter Kaye Scholer LLP who represents law professors who sided with the therapists, told the justices private communication with one's psychotherapist is vital.

"If there is any more private an activity than seeking assistance in controlling one's own urges, it's hard to imagine what that would be," he said.

The attorney general's office said Thursday it was reviewing the opinion.