80 CASE PRINTOUTS TO ACCOMPANY BUSINESS LAW
focus on the high court’s reference to what the “parties” can do, and argue that Canon I.7.4, to be effective, had to have been
enacted by the parties-in other words, that some kind of agreement must have been reached between the general church and St.
James Parish (and presumably every other parish in the country) ratifying Canon I.7.4. We do not so read the high court’s words.
Use of the passive voice in describing the possible “alternative[ ]” of making the general church’s constitution recite the trust
alienating local property without the previous consent of higher church authorities. Thus, a strong argument exists that Canon
***293 I.7.4 merely codified what had long been implicit. As we discuss below, this is the conclusion reached by some of the out-of–
state decisions that awarded property to the national Episcopal Church in similar disputes.
A California statutory provision that was enacted shortly after
Jones v. Wolf, supra,
443 U.S. 595, 99 S.Ct. 3020, and that is
consistent with the language quoted above from page 606 of that decision, also supports the conclusion that the property now
Ch., supra,
396 U.S. at p. 367, 90 S.Ct. 499, fn. omitted.) Justice Brennan fleshed out the point in his concurring opinion in that
case. He explained that one possible approach to resolving church property disputes “is the passage of special statutes governing
church property arrangements in a manner that precludes state interference in doctrine. Such statutes must be carefully drawn to
leave control of ecclesiastical polity, as well as doctrine, to church governing bodies.” (
Id.
at p. 370, 90 S.Ct. 499 (conc. opn. of
Brennan, J.).) Section 9142, subdivisions (c) and (d), does not permit state interference in religious doctrine and leaves control of
dissolved by amendment from time to time to the articles, bylaws, or governing instruments
creating the trusts.
…”(Italics added.)
Thus, subdivision (d) appears ***294 clearly to indicate that, under California law, a trust
is created
by compliance with any one of
the alternatives set forth in subdivision (c)(2), and it can only be altered or dissolved by amending the creating instrument.
[19] In short, St. James Parish agreed from the beginning of its existence to be part **82 of a greater denominational church and to
be bound by that greater church’s governing instruments. Those instruments make clear that a local parish owns local church
property in trust for the greater church and may use that property only so long as the local church remains part of the greater
(1993) 224 Conn. 797, 620 A.2d 1280. In that case, the court reviewed the history of the Episcopal Church. It concluded that a
local church that had withdrawn from the general Episcopal Church, as well as the local church’s predecessors, “had agreed, as a
condition to their formation as ecclesiastical organizations affiliated with the Diocese and [the Episcopal Church], to use and hold
their property only for the greater purposes of the church.” (
Id.
at p. 1292.) Specifically, it found that Canon I.7.4 (which it called the
“Dennis Canon”), “adopted in 1979 merely codified in explicit terms a trust relationship that has been implicit in the relationship
and citing
Rector, Wardens v. Episcopal Church, supra,
224 Conn. 797, 620 A.2d 1280). The court in
Bjorkman v. Protestant
Episcopal Church
(Ky.1988) 759 S.W.2d 583 awarded the property to the local church, but there the dispute arose before the high
court decision of
Jones v. Wolf, supra,
443 U.S. 595, 99 S.Ct. 3020, the opinion did not mention Canon I.7.4, and the decision has
not been followed by other jurisdictions. These out-of-state decisions are not binding on this court, but we find them persuasive,
especially in the aggregate.
FN8. See
Bishop and Diocese of Colorado v. Mote, supra,
716 P.2d at pages 108-109;
id.,
footnote 17 (“[W]e find the
holding in
Barker
inapplicable and decline to follow it”);
Rector, Wardens v. Episcopal Church, supra,
620 A.2d at page
1285 (“declin[ing] to follow”
Barker
);
Episcopal Diocese of Mass. v. Devine, supra,
797 N.E.2d at page 924, footnote 21;
Bennison v. Sharp, supra,
329 N.W.2d at pages 473-474.
Defendants also cite
California-Nevada Annual Conf. of the United Methodist Church v. St. Luke’s United Methodist Church, supra,
82 CASE PRINTOUTS TO ACCOMPANY BUSINESS LAW
[20] The
St. Luke’s
court also stated that “subdivision (c)(2) of Corporations Code section 9142 does not authorize a general
church to create a trust interest for itself in property owned by a local church simply by issuing a rule declaring that such a trust
exists….” (
St. Luke’s, supra,
121 Cal.App.4th 754, 757, 17 Cal.Rptr.3d 442.) As a general proposition, this statement is inconsistent
*492 with section 9142, subdivision (c)(2)’s plain language, and we disapprove it. Instead, we agree with the assessment of the
Court of Appeal in this case: “[I]n a hierarchically organized church, the ‘general church’
can
impress a trust on a local religious
corporation of which the local corporation is a ‘member’
if
the governing instruments of that superior religious body so provide.”
[21] Defendants argue that such a reading of section 9142“would unconstitutionally promote and establish denominational
religion.” We need not, indeed, cannot consider all possible applications of section 9142, but as applied here, the section is fully
consistent with
Jones v. Wolf, supra,
443 U.S. at page 606, 99 S.Ct. 3020, and promotes the free exercise rights of persons to
form and join a religious association that is constructed and governed as they choose. Defendants also suggest that the Episcopal
Church did not properly adopt Canon I.7.4 under its own rules. It is a bit late to argue that Canon **84 I.7.4 was not effectively
adopted, a quarter of a century later, and, in light of the consistent conclusions of the out–of-state cases that that canon is, indeed,
part of the Episcopal Church’s governing documents, the argument seems dubious at best. But, in any event, this is one of those
questions regarding “religious doctrine or polity” (or, as we phrased it in
Catholic Charities of Sacramento, Inc. v. Superior Court,
supra,
32 Cal.4th at page 541, 10 Cal.Rptr.3d 283, 85 P.3d 67,“religious doctrine and internal church governance”) on which we
must defer to the greater church’s resolution. (
Jones v. Wolf, supra,
443 U.S. at p. 602, 99 S.Ct. 3020.) Over the years, the
Episcopal Church has consistently taken the position that Canon I.7.4 was effectively adopted.
Defendants state that, over the years, St. James Parish “purchased additional parcels of property in its own name, with funds
donated exclusively by its members.” They contend that it would be unjust and contrary to the intent of the members who, they
argue, “acquired, built, improved, maintained, repaired, cared for and used the real and personal property at issue for over fifty
years,” to cause the local parish to “los[e] its property simply because it has changed its
spiritual
affiliation.” But the matter is not so
clear. We ***297 may assume that St. James Parish’s members did what defendants say they did for *493 all this time. But they
did it for a local church that was a constituent member of a greater church and that promised to remain so. Did they act over the
years intending to contribute to a church that was part of the
Episcopal Church
or to contribute to St. James Parish even if it later
joined a different church? It is impossible to say for sure. Probably different contributors over the years would have had different
CHAPTER 4: CONSTITUTIONAL AUTHORITY TO REGULATE BUSINESS 83
III. CONCLUSION
We affirm the judgment of the Court of Appeal.
Supplemental Case Printout for:
Insight into Ethics
535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403, 30 Media L. Rep. 1673, 02 Cal. Daily Op. Serv. 3211, 2002 Daily
Journal D.A.R. 4033, 15 Fla. L. Weekly Fed. S 187
Supreme Court of the United States
John D. ASHCROFT, Attorney General, et al., Petitioners,
v.
The FREE SPEECH COALITION, et al.
No. 00-795.
Argued Oct. 30, 2001.
Decided April 16, 2002.
84 CASE PRINTOUTS TO ACCOMPANY BUSINESS LAW
Section 2256(8)(C) prohibits a more common and lower tech means of creating virtual images, known as computer morphing.
Rather than creating original images, pornographers can alter innocent pictures of real children so that the children appear to be
engaged in sexual activity. Although morphed images may fall within the definition of virtual child pornography, they implicate the
interests of real children and are in that sense closer to the images in
Ferber.
Respondents do not challenge this provision, and we
do not consider it.
Respondents do challenge § 2256(8)(D). Like the text of the “appears to be” provision, the sweep of this provision is quite broad.
Section 2256(8)(D) defines child pornography to include any sexually explicit image that was “advertised, promoted, presented,
described, or distributed in such a manner that conveys the impression” it depicts “a minor engaging in sexually explicit conduct.”
One Committee Report identified the provision as directed at sexually explicit images pandered as child pornography. See S.Rep.
No. 104-358, p. 22 (1996) (“This provision prevents child pornographers and pedophiles from exploiting prurient interests in child
sexuality and sexual activity through the production or distribution of pornographic material which is intentionally pandered as
**1398 child pornography”). The statute is not so limited in its reach, however, as it punishes even *243 those possessors who took
no part in pandering. Once a work has been described as child pornography, the taint remains on the speech in the hands of
subsequent possessors, making possession unlawful even though the content otherwise would not be objectionable.
CHAPTER 4: CONSTITUTIONAL AUTHORITY TO REGULATE BUSINESS 85
While the Ninth Circuit found the CPPA invalid on its face, four other Courts of Appeals have sustained it. See
United States v.
Fox,
248 F.3d 394 (C.A.5 2001);
United States v. Mento,
231 F.3d 912 (C.A.4 2000);
United States v. Acheson,
195 F.3d 645
in any capacity, would risk distributing images in or near the uncertain reach of this law. **1399 The Constitution gives significant
protection from overbroad laws that chill speech within the First Amendment’s vast and privileged sphere. Under this principle, the
CPPA is unconstitutional on its face if it prohibits a substantial amount of protected expression. See
Broadrick v. Oklahoma,
413
U.S. 601, 612, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973).
The sexual abuse of a child is a most serious crime and an act repugnant to the moral instincts of a decent people. In *245 its
offending our sensibilities. See
FCC v. Pacifica Foundation,
438 U.S. 726, 745, 98 S.Ct. 3026, 57 L.Ed.2d 1073 (1978) (“[T]he fact
that society may find speech offensive is not a sufficient reason for suppressing it”); see also
Reno v. American Civil Liberties
Union,
521 U.S. 844, 874, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997) (“In evaluating the free speech rights of adults, we have made
it perfectly clear that ‘[s]exual expression which is indecent but not obscene is protected by the First Amendment’ ”) (quoting
Sable
Communications of Cal., Inc. v. FCC,
492 U.S. 115, 126, 109 S.Ct. 2829, 106 L.Ed.2d 93 (1989));
Carey v. Population Services
[7][8] As we have noted, the CPPA is much more than a supplement to the existing federal prohibition on obscenity. Under
Miller v.
California,
413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), the Government must prove that the work, taken as a whole,
appeals to the prurient interest, is patently offensive in light of community standards, and lacks serious literary, artistic, political, or
scientific value.
Id.,
at 24, 93 S.Ct. 2607. The CPPA, however, extends to images that appear to depict a minor engaging in
sexually explicit activity without regard to the
Miller
requirements. **1400 The materials need not appeal to the prurient interest. Any
Eskridge & N. Hunter, Sexuality, Gender, and the Law 1021–1022 (1997) (in 39 States and the District of Columbia, the age of
consent is 16 or younger). It is, of course, undeniable that some youths engage in sexual activity before the legal age, either on
their own inclination or because they are victims of sexual abuse.
Both themes-teenage sexual activity and the sexual abuse of children-have inspired countless literary works. William Shakespeare
created the most famous pair of teenage lovers, one of whom is just 13 years of age. See Romeo and Juliet, act I, sc. 2, l. 9 (“She
engages in sexual relations with her teenage boyfriend, and another yields herself to the gratification of a middle-aged man. The
film also contains a scene where, although the movie audience understands the act is not taking place, one character believes he
is watching a teenage boy performing a sexual act on an older man.
[9][10] Our society, like other cultures, has empathy and enduring fascination with the lives and destinies of the young. Art and
literature express the vital interest we all have in the formative years we ourselves once knew, when wounds can be so grievous,
33 L.Ed.2d 312 (1972)
(per *249 curiam).
For this reason, and the others we have noted, the CPPA cannot be read to prohibit
obscenity, because it lacks the required link between its prohibitions and the affront to community standards prohibited by the
definition of obscenity.
[11][12] The Government seeks to address this deficiency by arguing that speech prohibited by the CPPA is virtually
indistinguishable from child pornography, which may be banned without regard to whether it depicts works of value. See
New York
child’s abuse, the continued circulation itself would harm the child who had participated. Like a defamatory statement, each new
publication of the speech would cause new injury to the child’s reputation and emotional well-being. See
id.,
at 759, and n. 10, 102
S.Ct. 3348. Second, because the traffic in child pornography was an economic motive for its production, the State had an interest
in closing the distribution network. “The most expeditious if not the only practical method of law enforcement may be to dry up the
market for this material *250 by imposing severe criminal penalties on persons selling, advertising, or otherwise promoting the
at 110.
Osborne
also noted the State’s interest in preventing child pornography from being used as an aid in the solicitation of
minors.
Id.,
at 111, 110 S.Ct. 1691. The Court, however, anchored its holding in the concern for the participants, those whom it
**1402 called the “victims of child pornography.”
Id.,
at 110, 110 S.Ct. 1691. It did not suggest that, absent this concern, other
governmental interests would suffice. See
infra,
at 1402-1403.
In contrast to the speech in
Ferber,
speech that itself is the record of sexual abuse, the CPPA prohibits speech that records no
depictions of sexual conduct, not otherwise obscene, which do not involve live performance or photographic or other visual
reproduction of live performances, retains First Amendment protection”).
[15] The second flaw in the Government’s position is that
Ferber
did not hold that child pornography is by definition without value.
On the contrary, the Court recognized some works in this category might have significant value, see
id.,
at 761, 102 S.Ct. 3348, but
relied on virtual images-the very images prohibited by the CPPA-as an alternative and permissible means of expression: “[I]f it
establish, however, that speech within the rights of adults to hear may not be silenced completely in an attempt to shield children
from it. See
Sable Communications of Cal., Inc. v. FCC,
492 U.S. 115, 109 S.Ct. 2829, 106 L.Ed.2d 93 (1989). In
Butler v.
Michigan,
352 U.S. 380, 381, 77 S.Ct. 524, 1 L.Ed.2d 412 (1957), the Court invalidated a statute prohibiting distribution of an
indecent publication because of its tendency to “ ‘incite minors to violent or depraved or immoral acts.’ ” A unanimous Court agreed
upon **1403 the important First Amendment principle that the State could not “reduce the adult population … to reading only what
because it may fall into the hands of children. The evil in question depends upon the actor’s unlawful conduct, conduct defined as
criminal quite apart from any link to the speech in question. This establishes that the speech ban is not narrowly drawn. The
objective is to prohibit illegal conduct, but this restriction goes well *253 beyond that interest by restricting the speech available to
law-abiding adults.
[18][19] The Government submits further that virtual child pornography whets the appetites of pedophiles and encourages them to
speech because it increases the chance an unlawful act will be committed “at some indefinite future time.”
Hess v. Indiana,
414
U.S. 105, 108, 94 S.Ct. 326, 38 L.Ed.2d 303 (1973)
(per curiam).
The government may suppress speech for advocating the use of
force or a violation of law only if “such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or
produce such action.”
Brandenburg v. Ohio,
395 U.S. 444, 447, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969)
(per curiam).
There is here
no attempt, incitement, solicitation, or conspiracy. The Government has shown no more than a remote connection between speech
however, the Court has not allowed the suppression of speech in all cases.
E.g.,
Bartnicki,supra,
at 529, 121 S.Ct. 1753 (market
deterrence would not justify law prohibiting a radio commentator from distributing speech that had been unlawfully intercepted). We
need not consider where to strike the balance in this case, because here, there is no underlying crime at all. Even if the
Government’s market deterrence theory were persuasive in some contexts, it would not justify this statute.
[23] Finally, the Government says that the possibility of producing images by using computer imaging makes it very difficult for it to
[26] To avoid the force of this objection, the Government would have us read the CPPA not as a measure suppressing speech but
as a law shifting the burden to the accused to prove the speech is lawful. In this connection, the Government relies on an
affirmative defense under the statute, which allows a defendant to avoid conviction for nonpossession offenses by showing that the
materials were produced using only adults and were not otherwise distributed in a manner conveying the impression that they
depicted real children. See 18 U.S.C. § 2252A(c).
charged with possessing, as opposed to distributing, proscribed works may not defend on the ground that the film depicts only
adult actors. See
ibid.
So while the affirmative defense may protect a movie producer from prosecution for the act of distribution,
that same producer, and all other persons in the subsequent distribution chain, could be liable for possessing the prohibited work.
Furthermore, the affirmative defense provides no protection to persons who produce speech by using computer imaging, or
through other means that do not involve the use of adult actors who appear to be minors. See
ibid.
In these cases, the defendant
visual depiction of a minor engaging in sexually explicit conduct.” The parties treat the section as nearly identical to the provision
prohibiting materials that appear to be child pornography. In the Government’s view, the difference between the two is that “the
‘conveys the impression’ provision requires the jury to assess the material at issue in light of the manner in which it is promoted.”
Brief for Petitioners 18, n. 3. The Government’s assumption, however, is that the determination would still depend principally upon
the content of the prohibited work.
particular materials are obscene. See
Ginzburg v. United States,
383 U.S. 463, 474, 86 S.Ct. 942, 16 L.Ed.2d 31 (1966) (“[I]n close
cases evidence of pandering may be probative with respect to the nature of the material in question and thus satisfy the [obscenity]
test”). Where a defendant engages in the “commercial exploitation of erotica solely for the sake of their prurient appeal,”
id.,
at 466,
86 S.Ct. 942, the context he or she creates may itself be relevant to the evaluation of the materials.
90 CASE PRINTOUTS TO ACCOMPANY BUSINESS LAW