The Uncanny Afterlife of H.P. Lovecraft

Edmund Wilson, then one of America’s top literary critics, took to the pages of The New Yorker in 1945 to denounce a dead horror writer named H.P. Lovecraft. “The only real horror in most of these fictions,” Wilson sniffed, “is the horror of bad taste and bad art.” Wilson was outraged at the thought that Lovecraft, who had died, broke, in 1937, might enjoy posthumous success thanks to the recent publication of his collected writings. These stories, Wilson declared, “were hack-work contributed to such publications as Weird Tales and Amazing Stories, where, in my opinion, they ought to have been left.”

Wilson was a big deal in his day, the sort of critic whose reviews could help make or break an author’s career. But he was simply no match for Lovecraft, who would enjoy the last laugh from beyond the grave. Today, Wilson is largely forgotten and Lovecraft is practically everywhere, his DNA spread far and wide throughout American popular culture.

Perhaps you’re familiar with Lovecraft’s most enduring creation, the towering, tentacle-faced elder god Cthulhu, who lies slumbering deep in his oceanic tomb, waiting for the day when “the stars are right” so that he may rise again and wreak havoc on humanity. The modern cult of Cthulhu is a capitalist success story of epic proportions. Retailers now offer Cthulhu-themed shirts, hats, socks, costumes, toys, coffee mugs, Pez dispensers, board games, video games, role-playing games, novels, short stories, comic books, coloring books, and much else besides. The heavy metal band Metallica has written two songs in Cthulhu’s honor. The Oscar-winning director Guillermo del Toro has found all sorts of clever ways to reference Cthulhu in his films. A popular “Cthulhu for President” bumper sticker asks, “Why vote for the lesser evil?”

Another Lovecraft signature is the obsessive researcher whose fixation on weird science unleashes an interdimensional evil that threatens to wipe out the planet. Sound familiar? In the hit Netflix series Stranger Things, shadowy government research involving children with psychic abilities rips open a portal between Hawkins, Indiana, and “the Upside Down,” a spooky parallel dimension that just happens to be crawling with Lovecraftian creatures. Yes, the mad scientist trope has been around at least since Frankenstein, but the vast, eldritch terrors of the Upside Down are pure Lovecraft. So too is the tentacled monster known as “the mind flayer” who stalks our intrepid young heroes.

Academics can’t seem to get enough of Lovecraft either. A database search will turn up hundreds of scholarly articles discussing the author and his work, in such serious-minded publications as American StudiesMath HorizonsCultural Geographies, and the Journal of Folklore Research. In the words of Alan Moore, author of the acclaimed graphic novels Watchmen and V for Vendetta, Lovecraft has enjoyed “a posthumous trajectory from pulp to academia that is perhaps unique in modern letters.”

Not everybody is a fan. In 2014, the writer Daniel José Older launched a campaign to have Lovecraft’s likeness removed from the World Fantasy Award, a prestigious genre prize that had taken the form of a Lovecraft statue since its inception in 1975. While Lovecraft “did leave a lasting mark on speculative fiction, he was also an avowed racist,” Older argued. “Many writers have spoken out about their discomfort with winning an award that lauds someone with such hideous opinions….It’s time to stop co-signing his bigotry and move sci-fi/fantasy out of the past.” The World Fantasy Convention ultimately agreed, dropping the statue in 2015.

Lovecraft really was an avowed racist. His stories, essays, and correspondence are filled with all sorts of ugly statements about blacks, Jews, and immigrants. He particularly hated New York City, where he briefly lived, complaining in a 1924 letter of its “Asiatic hell’s huddle of the world’s cowed, broken, inartistic, & unfit.”

Still, the horror/fantasy world was not uniformly pleased about the change. The scholar and editor S.T. Joshi, who has written numerous books about Lovecraft, returned his two World Fantasy Awards in protest. Getting rid of the Lovecraft statue, Joshi declared, “seems to me a craven yielding to the worst sort of political correctness.”

Seven decades after his death, Lovecraft shows no signs of going away. He has scaled the commanding heights of pop culture, influencing some of the biggest names in the game while continuing to sell tons of his own books to new generations of readers. How many authors can claim a posthumous success like that?

Haunting the Dark

Howard Phillips Lovecraft was born in Providence, Rhode Island, on August 20, 1890. In 1893, his father, likely suffering from an advanced case of syphilis, was committed to the nearby Butler Hospital for the Insane. He would die there five years later. Lovecraft’s mother, who suffered from depression, would be confined to that same facility in 1919, dying within its walls two years later.

These are not the only episodes from the writer’s life that sound like plot points from a horror story. At the age of 46, Lovecraft began keeping a sort of death diary, recording his daily sufferings and terrors as he slowly expired from stomach cancer. “Pain—drowse—intense pain—rest—great pain,” he wrote in one typical entry. It was an eerie echo of his 1936 short story “The Haunter of the Dark,” in which one of the protagonists continues to write in his journal even as the dreadful monster closes in on him. “I see it—coming here—hell-wind—titan blur—black wings—Yog-Sothoth save me—the three-lobed burning eye….” That’s the final sentence of the story.

Lovecraft wrote for the pulps, cheaply printed magazines that specialized in the sort of sensational material—monsters, lost cities, aliens—that more respectable outlets would not deign to print. He never made any real money as a writer, though he was sometimes able to pay the bills by hiring out his services as an editor and rewrite man. The most famous of his clients was Harry Houdini, for whom Lovecraft ghostwrote the 1924 short story “Imprisoned With the Pharaohs.”

Lovecraft’s first major book, The Outsider and Others, which collected some of his best stories, did not appear until two years after his death. His second book—Beyond the Wall of Sleep, another story collection—appeared four years after that. They were both published by Arkham House, an independent press founded by Lovecraft acolytes August Derleth and Donald Wandrei for the sole purpose of keeping their hero’s work in print.

It did the trick. Readers have been devouring Lovecraft’s macabre tales ever since.

What explains this extraordinary afterlife? Why do so many of us still read his stuff today? “When Lovecraft was on the money,” the writer Stephen King has argued, “his stories packed an incredible wallop. The best of them make us feel the size of the universe we hang suspended in and suggest shadowy forces that could destroy us all if they so much as grunted in their sleep.”

King ought to know, having successfully borrowed a page or two from the Lovecraftian playbook himself over the years. In It, King’s blockbuster 1986 novel about a small town terrorized by a bloodthirsty, shape-shifting clown, the big reveal at the end (spoiler alert) is that the monster is actually an ancient cosmic entity that crashed to Earth millions of years ago and has been periodically rising up to feed on human fear (and flesh) ever since. In The Mist, his 1980 novella about a small town under siege after secret government experiments unleash monsters from another dimension (hello again, Stranger Things!), King gives Cthulhu himself a sort of uncredited cameo appearance.

Lovecraft revealed the key to his own personal vision of horror in the opening sentences of his signature story, “The Call of Cthulhu”: “The most merciful thing in the world, I think, is the inability of the human mind to correlate all its contents. We live on a placid island of ignorance in the midst of black seas of infinity, and it was not meant that we should voyage far.” Pretty much any one of Lovecraft’s 70 or so tales could begin like that.

A Political Horror Show

Modern critics have sometimes struggled to make sense of Lovecraft’s worldview, particularly when it comes to where he might fall on the political spectrum. For many, the answer has been to label Lovecraft a conservative, pointing to his undeniable record as a racist, xenophobe, and Anglo-Saxon supremacist. “It’s safe to say that if Lovecraft were alive today,” The A.V. Club‘s Joshua Alston declared in 2016, “he’d have a ‘Make America Great Again’ bumper sticker on the wall of his remote cabin.”

Maybe so. But Lovecraft also hated capitalism, praised socialism, and staunchly defended President Franklin Roosevelt’s New Deal against “the plutocrats and their apologists,” as he once put it. “I am one for whom the spectre of ‘socialisation’ has no terror,” Lovecraft wrote in a 1933 essay. “The older I grow and the more I reflect, the more I am convinced that no industrial civilization can continue to exist except through the artificial government control and distribution of resources.” The real problem with the New Deal, Lovecraft added, was that it did not go far enough “toward the probably inevitable socialisation of large-scale industry and finance.”

Lovecraft’s combination of racism and statist economics was not exactly unusual at the time. In fact, many of the day’s leading progressive figures harbored outright racist opinions. Take Woodrow Wilson. In his 1901 book, A History of the American People, the future president voiced his disgust at the new immigrants then arriving in the United States from Southern and Eastern Europe, attacking them as “men of the lowest class from the south of Italy and men of the meaner sort out of Hungary and Poland.” Far more to Wilson’s taste were the “sturdy stocks of the north of Europe.” Socialist leader Eugene Debs struck a similar note. “The Dago…lives more like a savage or a wild beast than the Chinese,” Debs complained, allowing him to “underbid the American working man.” Progressive hero Theodore Roosevelt argued that it was “a mistake” to give black men the right to vote via the 15th Amendment because blacks on the whole were “altogether inferior to the whites.”

Without ruling on the question of where Lovecraft might land on today’s political spectrum, it seems clear that his racist and xenophobic views were in step with much left-wing thought of his own time.

Cut from the Cosmic Horror Opus?

Lovecraft’s racism has inspired two interesting young anti-racist writers now working in the fields of horror and dark fantasy. In his captivating Lovecraft Country (Harper), Matt Ruff chronicles the adventures of a black family as it navigates the horrors—both ordinary and supernatural—of Jim Crow America in the 1950s. It’s both a welcome addition to the Lovecraftian canon and a sharp critique of it. Jordan Peele, director of the acclaimed 2017 thriller Get Out, is currently producing an HBO series based on Ruff’s novel. Meanwhile, Victor LaValle’s The Ballad of Black Tom (Tor.com), which he dedicates to Lovecraft “with all my conflicted feelings,” takes the critique a step further—essentially rewriting one of Lovecraft’s most blatantly racist stories, “The Horror at Red Hook,” from the vantage point of a new black protagonist.

In his introduction to 2019’s The New Annotated H.P. Lovecraft: Beyond Arkham (Liveright), a lavishly illustrated collection edited by the cultural historian Leslie Klinger, LaValle discusses his complicated relationship with Lovecraft’s work. One option he considered was to “cut [Lovecraft] from the Cosmic Horror opus,” he acknowledges. But then he thought twice about all the great stories that would necessarily be sacrificed as a result.

So what can be done about Lovecraft and his tainted creations? “I’m not saying the fiction is so worthwhile that we just have to shrug our shoulders and live with the rest,” LaValle writes. Rather, “you can love something, love someone, and criticize them. That’s called maturity.” As far as LaValle is concerned, “Lovecraft will never be cancelled.” He’s right: The ghoulish writer has sunk his teeth far too deep into the body of American popular culture for that.

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The Outlaw Ocean

New York Times investigative journalist Ian Urbina’s book The Outlaw Ocean is a fast-paced and meticulously reported travelogue of four years spent covering the world’s last great frontier, the high seas.

Measured by sheer area, Urbina may have the biggest beat of any reporter on Earth. His central concern is how the ocean’s vastness creates fluid borders, legal gray areas, and indifference from land-based governments that ostensibly enforce maritime laws.

Each chapter profiles people living on the edge of these laws, including vigilante ecowarriors, the micronation of Sealand, a maritime repo man who “recovers” giant ships from ports in the dead of night, and an abortion provider who shuttles women in restrictive countries to international waters.

Despite some of the picaresque characters you’d expect, it’s far from a romantic view of the ocean. Urbina uncovers corruption, physical abuse, and literal slavery in the global fishing and shipping chains. He’s a dogged investigator, and it’s fascinating to watch him peel back the story of how, say, a fishing vessel flagged to a West African country, skippered by a Costa Rican captain, owned by shell companies connected to Spanish organized crime, and crewed by trafficked Malaysians can offload to a U.S. port an illegal catch of Antarctic toothfish, which eventually appears on menus as “Chilean sea bass.”

Urbina avoids casting most of his subjects as heroes or villains. Things at sea are never that clear. As a Vietnamese fisherman detained by the Indonesian coast guard for poaching in disputed waters half-jokingly notes, the fish were on his side of the imaginary line when he started chasing them. The Outlaw Ocean is a must-read for anyone interested in lawless zones, ocean issues, or just compelling investigative journalism.

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Borderlands 3

In Borderlands 3, the latest installment in the zany sci-fi shooter franchise, you take on a murderous cult worshiping a cruel, vain deity who demands that her minions attack others, sacrifice themselves, and constantly sing her praises in order to appease her whims. I’m speaking, of course, of a popular teenage YouTuber.

Technically, the game’s villain, Tyreen Calypso, isn’t on YouTube. But she’s a “streamer” who broadcasts videos of epic, bloody battles and signs off her ‘casts with “always remember to like, follow, and obey.”

Along with her brother Troy, Tyreen controls a seemingly endless horde of enemy followers, some of whom are just labeled “fanatics.” One of the game’s early sub-bosses is a character named Mouthpiece, who offers obsequious commentary on Tyreen’s broadcasts, such as: “Another perfect livestream from our infallible god-queen Tyreen.”

As metaphors go, it’s not particularly subtle. But then, very little about this game is. Like its predecessors, Borderlands 3 is a cartoonishly animated open-world shooter. You spend most of your time engaged in frantic firefights, hoping to pick up better and better weapons along the way. The weapons are randomly generated, with millions of potential combinations; enemies literally bleed numbers when you shoot them. It’s a game for stats nerds, gun geeks, and obsessive collectors.

The story, meanwhile, is packed with crudely goofy characters and ironic send-ups of horror, sci-fi, and action tropes. Think Doom crossed with Diablo by way of The Toxic Avenger.

Borderlands 3‘s juvenile sensibility isn’t for everyone, and its satire of online fan culture and viral fame is mostly one-note. But its self-awareness goes a long way, and, in the context of an action-packed video game, its villainous depiction of narcissistic online stars and their unthinking minions is surprisingly satisfying: When this social media mob comes for you, you can fight back.

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The Outlaw Ocean

New York Times investigative journalist Ian Urbina’s book The Outlaw Ocean is a fast-paced and meticulously reported travelogue of four years spent covering the world’s last great frontier, the high seas.

Measured by sheer area, Urbina may have the biggest beat of any reporter on Earth. His central concern is how the ocean’s vastness creates fluid borders, legal gray areas, and indifference from land-based governments that ostensibly enforce maritime laws.

Each chapter profiles people living on the edge of these laws, including vigilante ecowarriors, the micronation of Sealand, a maritime repo man who “recovers” giant ships from ports in the dead of night, and an abortion provider who shuttles women in restrictive countries to international waters.

Despite some of the picaresque characters you’d expect, it’s far from a romantic view of the ocean. Urbina uncovers corruption, physical abuse, and literal slavery in the global fishing and shipping chains. He’s a dogged investigator, and it’s fascinating to watch him peel back the story of how, say, a fishing vessel flagged to a West African country, skippered by a Costa Rican captain, owned by shell companies connected to Spanish organized crime, and crewed by trafficked Malaysians can offload to a U.S. port an illegal catch of Antarctic toothfish, which eventually appears on menus as “Chilean sea bass.”

Urbina avoids casting most of his subjects as heroes or villains. Things at sea are never that clear. As a Vietnamese fisherman detained by the Indonesian coast guard for poaching in disputed waters half-jokingly notes, the fish were on his side of the imaginary line when he started chasing them. The Outlaw Ocean is a must-read for anyone interested in lawless zones, ocean issues, or just compelling investigative journalism.

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Borderlands 3

In Borderlands 3, the latest installment in the zany sci-fi shooter franchise, you take on a murderous cult worshiping a cruel, vain deity who demands that her minions attack others, sacrifice themselves, and constantly sing her praises in order to appease her whims. I’m speaking, of course, of a popular teenage YouTuber.

Technically, the game’s villain, Tyreen Calypso, isn’t on YouTube. But she’s a “streamer” who broadcasts videos of epic, bloody battles and signs off her ‘casts with “always remember to like, follow, and obey.”

Along with her brother Troy, Tyreen controls a seemingly endless horde of enemy followers, some of whom are just labeled “fanatics.” One of the game’s early sub-bosses is a character named Mouthpiece, who offers obsequious commentary on Tyreen’s broadcasts, such as: “Another perfect livestream from our infallible god-queen Tyreen.”

As metaphors go, it’s not particularly subtle. But then, very little about this game is. Like its predecessors, Borderlands 3 is a cartoonishly animated open-world shooter. You spend most of your time engaged in frantic firefights, hoping to pick up better and better weapons along the way. The weapons are randomly generated, with millions of potential combinations; enemies literally bleed numbers when you shoot them. It’s a game for stats nerds, gun geeks, and obsessive collectors.

The story, meanwhile, is packed with crudely goofy characters and ironic send-ups of horror, sci-fi, and action tropes. Think Doom crossed with Diablo by way of The Toxic Avenger.

Borderlands 3‘s juvenile sensibility isn’t for everyone, and its satire of online fan culture and viral fame is mostly one-note. But its self-awareness goes a long way, and, in the context of an action-packed video game, its villainous depiction of narcissistic online stars and their unthinking minions is surprisingly satisfying: When this social media mob comes for you, you can fight back.

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Brickbat: Lick It Up

Honolulu police officer John Rabago has pleaded guilty to depriving a homeless man of his civil rights. Rabago admitted in court he told the man he would be arrested if he did not lick a public restroom urinal. Officers had responded to a nuisance call at the restroom. Rabago and another officer shut the door and Rabago told the man to lick the urinal. According to court documents, after the man licked the urinal, Rabago came out of the restroom and bragged to other officers about what he had done, saying it was similar to a time he had told a “man that he would avoid arrest only if he stuck his head in a toilet.” Rabago faces up to 30 months in prison.

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Brickbat: Lick It Up

Honolulu police officer John Rabago has pleaded guilty to depriving a homeless man of his civil rights. Rabago admitted in court he told the man he would be arrested if he did not lick a public restroom urinal. Officers had responded to a nuisance call at the restroom. Rabago and another officer shut the door and Rabago told the man to lick the urinal. According to court documents, after the man licked the urinal, Rabago came out of the restroom and bragged to other officers about what he had done, saying it was similar to a time he had told a “man that he would avoid arrest only if he stuck his head in a toilet.” Rabago faces up to 30 months in prison.

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Requiring Psychotherapists to Report Patients’ Child Porn Use May Violate Constitutional Right to Privacy

Since 1972, the California Constitution has expressly protected privacy, providing that,

All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.

The California Supreme Court has implemented this provision using the Hill v. NCAA test:

[A] plaintiff alleging an invasion of privacy in violation of the state constitutional right to privacy must establish each of the following: (1) a legally protected privacy interest; (2) a reasonable expectation of privacy in the circumstances; and (3) conduct by defendant constituting a serious invasion of privacy…. A defendant may prevail in a state constitutional privacy case by negating any of the three elements just discussed or by pleading and proving, as an affirmative defense, that the invasion of privacy is justified because it substantively furthers one or more countervailing interests. The plaintiff, in turn, may rebut a defendant’s assertion of countervailing interests by showing there are feasible and effective alternatives to defendant’s conduct which have a lesser impact on privacy interests.

How does this affect limits on psychotherapist-patient confidentiality, and in particular rules requiring psychotherapists to alert law enforcement when a patient has admitted to viewing child pornography? In today’s 4-3 decision in Mathews v. Becera, the court held that such reporting requirements may be unconstitutional, though depending on the facts, which need to be developed in further court proceedings. The majority (Justice Goodwin Liu, joined by Justices Mariano-Florentino Cuellar, Leondra Kruger, and Joshua Groban) relied heavily on the view that California is part of only a small minority of states that require such reporting, so that it “appears that ‘[nationwide] law and social custom’ have not required child welfare reporting or authorized other disclosure of a patient’s admission during voluntary psychotherapy treatment that the patient has possessed or viewed child pornography.” And it went on to explain what facts would bear on any ultimate decision about whether the statute passes muster:

No one disputes that the principal purpose of the reporting requirement—preventing the sexual exploitation and abuse of children—is a weighty one. The main issue on which the parties disagree is whether the reporting requirement actually serves its intended purpose.

Defendants argue that mandatory reporting advances the state’s interest in protecting children by facilitating enforcement of the child pornography laws. As defendants note, the purpose of these laws is to protect children by drying up the market for images of their sexual abuse. And according to the Attorney General, mandatory reporting also helps to “ensur[e] that those with direct access to children do not threaten them with harm” and aids efforts to “rescu[e] children from sexual abuse.”

Plaintiffs, by contrast, contend that there is only a “slim possibilit[y]” that the reporting requirement can assist law enforcement in identifying and rescuing children depicted in child pornography. They assert that patients who have downloaded or viewed child pornography online are “highly unlikely” to have any information about the identities, locations, or other relevant characteristics of the depicted children. Plaintiffs also allege that because child pornography is so freely and easily accessible on the Internet, patients who admit to viewing child pornography online span a wide range of psychological profiles and disorders, and do not present a serious danger of hands-on abuse. Mandatory reporting of patients who do not pose a serious danger of hands-on abuse, plaintiffs allege, would not serve any interest in preventing those patients from causing direct harm to children.

Moreover, plaintiffs’ complaint alleges that the reporting requirement “deter[s] existing or potential patients who have serious sexual disorders … from obtaining needed psychotherapy, despite the lack of any evidence that they have engaged in ‘hands-on’ or ‘contact’ sexual abuse of children.” The complaint specifically alleges that “mandated reporting of child pornography viewing will unnecessarily deter persons with sexual disorders from psychotherapy treatment,” which suggests the contribution of those persons to the market for child pornography will continue unabated.

With no facts developed at this stage of the litigation, we are unable to evaluate these competing claims as to whether the reporting requirement serves its intended purpose. Our precedent includes varied assertions on whether mandatory reporting deters psychotherapy patients from seeking treatment. (Compare Tarasoff, supra, 17 Cal.3d at p. 440, fn. 12 [dismissing as “entirely speculative” the concern that reporting of dangerous patients will discourage them from seeking counseling] with Stritzinger, supra, 34 Cal.3d at p. 514 [“it is impossible to conceive of any meaningful therapy” if the patient knows “at the outset that [the therapist] will violate his confidence and will inform law enforcement of their discussions”] and Lifschutz, supra, 2 Cal.3d at p. 431 [“‘”It would be too much to expect [patients] to [reveal intimate thoughts and behaviors during treatment] if they knew that all they say … may be revealed to the whole world from a witness stand.”‘”].) The dissent relies on cases that cite decades-old studies and involve reporting requirements not at issue here. (Dis. opn., post, at pp. 24–25, citing Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 632 [discussing 2000 article on deterrence effects of reporting potentially violent patients], People v. Wharton (1991) 53 Cal.3d 522, 558 [discussing deterrence effects of reporting patients whom psychotherapists believe to be dangerous], Tarasoff, supra, 17 Cal.3d at p. 440, fn. 12 [discussing 1974 article that found “little if any empirical data” on deterrence effects of reporting potentially violent patients], and Lifschutz, at pp. 426–427 [discussing deterrence effects in context of “compel[ling] disclosure of only those matters which the patient himself has chosen to reveal by tendering them in litigation”].) No court has yet explored the ramifications of the reporting requirement challenged in this case.

At its core, plaintiffs’ argument is that the reporting requirement does not further, and may in fact undermine, its intended purpose of protecting children from sexual abuse and exploitation. If substantiated, this mismatch between means and ends would render the reporting requirement unconstitutional under any standard. We thus have no need, in advance of factual development on this critical issue, to decide whether the reporting requirement must satisfy the compelling interest test or a general balancing test.

On remand, 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; and whether there are less intrusive means to accomplish the statute’s objectives. The parties may also introduce evidence on 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.

The dissent (Chief Justice Tani Cantil-Sakauye, joined by Justices Ming Chin and Carol Corrigan) disagreed on various grounds, but in particular had this to say about the likely efficacy of the law:

Based on the demonstrated countervailing state interest in protecting children from the harm caused by sexual exploitation over the Internet and plaintiffs’ speculative contentions regarding whether the 2014 amendment furthers that interest, it is apparent that the state interest will almost certainly outweigh the alleged privacy invasion….

[T]his court has already laid bare plaintiffs’ conjecture that mandatory reporting of psychotherapist-patient communications will deter patients from seeking therapy. Most recently in Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 632, we explained: “To a large extent, … the conditions that might influence [patient] perceptions about confidentiality already exist. Psychotherapists’ duty to warn about patient threats is well established in California. Indeed, despite fears that this duty would deter people from seeking treatment and irreparably damage the psychotherapist-patient relationship [citation], empirical studies have produced ‘no evidence thus far that patients have been discouraged from coming to therapy, or discouraged from speaking freely once there, for fear that their confidentiality will be breached.'” (Ibid.; see also People v. Wharton (1991) 53 Cal.3d 522, 558.) Similarly, in In re Lifschutz (1970) 2 Cal.3d 415 (Lifschutz), we rejected the petitioner’s claim that if the state could compel disclosure of some psychotherapeutic communications, psychotherapy could no longer be practiced successfully. We observed “that the practice of psychotherapy has grown, indeed flourished, in an environment of non-absolute privilege,” and “psychotherapists certainly have been aware of the limitations of their recognized privilege for some time.” (Id. at p. 426.) In Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, we observed that “it does not appear that our decision [in Lifschutz] in fact adversely affected the practice of psychotherapy in California. Counsels’ forecast of harm in the present case strikes us as equally dubious.” (Tarasoff, at p. 440, fn. 12.) …

Furthermore, even though the task of identifying sexually exploited children online is challenging, it does not mean that Assembly Bill 1775 fails to advance its purpose, as plaintiffs assert. In examining a similar federal statute, the Office of Legal Counsel determined that “[p]ornography may well involve ‘a’ specific, potentially identifiable child even if neither covered professionals nor their patients know the child’s identity. Even if covered professionals (or their patients) do not know the identity of any children depicted in pornography viewed by a patient, a report may lead authorities to specific, identifiable children. While some child pornography may be the work of professionals and therefore difficult to link to specific identifiable children, other such images are homemade recordings, taken in domestic contexts, of sexually abusive acts ‘committed against young neighbors or family members’ and therefore traceable through law enforcement investigation to a particular child or children.” Indeed, we have recognized that “[o]ftentimes, reporting by third parties [under CANRA] is the only way the proper authorities become aware of an incident of child abuse.” Therefore, plaintiffs’ claim—that the reporting statute does not actually serve its intended purpose because identifying children online is difficult—is unconvincing.

In addition, by asserting that, on the record before us, we cannot “evaluate … whether the reporting requirement serves its intended purpose,” the majority completely ignores the direct (albeit “hands-off”) harm caused by the viewing of child pornography over the Internet. Child pornography is not limited to hands-on abuse. “‘[T]he “victimization” of the children … does not end when the pornographer’s camera is put away. The consumer, or end recipient, of pornographic materials may be considered to be causing the children depicted in those materials to suffer as a result of his actions in at least three ways. [¶] First, the simple fact that the images have been disseminated perpetuates the abuse initiated by the producer of the materials…. The consumer who “merely” or “passively” receives or possesses child pornography directly contributes to this continuing victimization. [¶] Second, … [t]he recipient of child pornography obviously perpetuates the existence of the images received, and therefore the recipient may be considered to be invading the privacy of the children depicted, directly victimizing these children. [¶] Third, the consumer of child pornography instigates the original production of child pornography by providing an economic motive for creating and distributing the materials …. The underlying point … is that there is no sense in distinguishing … between the producers and the consumers of child pornography. Neither could exist without the other.'”

As the Attorney General argues, the 2014 amendment to CANRA “reflects the accepted position that ‘every viewing of child pornography is a repetition of the victim’s abuse.’ [Citation.] Mandated reporting of such behavior helps authorities locate and confiscate these images and stop instances of this harmful conduct.” Consequently, even were it true, as plaintiffs assert, that the new reporting requirement will not reduce hands-on abuse or facilitate the rescue of exploited children, “the State’s interest in protecting against the harms visited upon children when sexual images of them are downloaded, accessed, or streamed is alone sufficient to outweigh any asserted privacy interest.” As the District Attorney similarly asserts, “Obviously, the reduction of persons who duplicate, print, exchange, download, access or stream child pornography, will reduce the ongoing sexual exploitation of children.” That should be enough to establish that the amendment furthers the state’s compelling interest in protecting children and reducing abuse. The majority’s contrary view depends, not on allegations in the complaint, but on the majority’s speculation that “the contribution … to the market for child pornography” of persons allegedly deterred by the reporting requirement from seeking treatment for their sexual disorders “will continue unabated.”

 

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