Demonstrating the influence of both California’s constitution and Governor Jerry Brown’s Supreme Court appointments, a 4-3 court today holds the state constitutional right to privacy might override a psychotherapist’s statutory duty to report patients who have admitted to criminally viewing or possessing child pornography.  It’s only “might” because the superior court dismissed the case before hearing any evidence.  The majority opinion in Mathews v. Becerra — by Justice Goodwin Liu with fellow Brown appointees Justices Mariano-Florentino Cuéllar, Leondra Kruger, and Joshua Groban concurring — reinstates the lawsuit and puts on the government the burden of showing, in future likely lengthy hearings, that the reporting requirement’s purpose of protecting children is “a sufficient justification for the incursion on [patient] privacy.”

The privacy right is also a qualified one.  It “attaches to a patient’s disclosures during voluntary psychotherapy, not to the patient’s underlying conduct” and it does not protect communications by patients who the therapist believes “pose[s] a serious danger of either hands-on abuse or active distribution of child pornography.”

The court’s decision by Governor Brown’s four Supreme Court appointees allows for the possible judicial abrogation, at least in part, of legislation Brown himself signed in 2014.  Both houses of the Legislature passed the bill without dissent (several legislators didn’t vote).  The majority says they “express no view on the ultimate validity” of the law.

But determining the law’s “ultimate validity” could involve extended trial court proceedings.  The majority says, “the parties may develop evidence on a variety of relevant issues, including but not limited to the number of reports that psychotherapists have made regarding the possession or viewing of child pornography since the 2014 amendment; whether the reports have facilitated criminal prosecutions, reduced the market for child pornography, aided the identification or rescue of exploited children, or otherwise prevented harm to children; . . . whether there are less intrusive means to accomplish the statute’s objectives . . . [and] the extent to which the reporting requirement deters psychotherapy patients from seeking treatment for sexual disorders, inhibits candid communication by such patients during treatment, or otherwise compromises the practical accessibility or efficacy of treatment.”

Chief Justice Tani Cantil-Sakauye dissents, for herself and Justices Ming Chin and Carol Corrigan.  She says there’s no reason for further proceedings because the patients at issue don’t have a reasonable expectation of privacy in disclosing the prohibited conduct to their therapists.  The dissent also has two alternative, in-any-event arguments:  the patients have not met “the rigorous standard” for making a facial constitutional challenge to a statute and, on remand, “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.”

The court reverses the Second District, Division Two, Court of Appeal.


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Justice Liu on independent state constitutions

“Now more than ever we need the California Supreme Court”