The highest
court in Maryland has just ruled that a county ordinance banning
fortune-telling for money is unconstitutional, under the First Amendment’s
protection of free speech. The case involved the owner
of several fortune-telling businesses who intended to open a new business
in
We’ve recently seen other cases
like this in the news, where a business which essentially sells expressive
conduct and content is categorically banned. Most notably, a local ordinance
that bans tattoo parlors has recently come under constitutional attack.
Cases like this are interesting,
because they represent an intersection between what would ordinarily be relatively
mundane regulations, like zoning, and important constitutional questions. A
tricky balancing act has to be performed when a law of general application
burdens the constitutional rights of a particular group of people (for example,
when a certain religious practice includes rituals which violate
generally-applicable laws, such as the use of illegal drugs).
It’s not clear why this county wanted to ban fortune-telling. The law is from the 50s, so maybe they thought that fortune-telling led to black magic, which caused people to abandon Jesus, which of course led to communism…or something. Or maybe they simply thought that fortune-tellers are frauds. The latter possible explanation is not entirely unreasonable (here’s a helpful graph).
Of course, just because I
personally believe that fortune-telling, and any other claim of psychic powers,
is a bunch of hokum, it doesn’t necessarily follow that I think such activity
should be banned, or that consenting adults should be prohibited from spending
their money on it, if they so please.
In general, I think, that as long as people know what they’re getting themselves into (to that end, I would not be opposed to requirements for disclaimers that there’s absolutely no scientific evidence to support the claims made by psychics), the law shouldn’t stop them. Pat Murphy, at the Benchmarks Blog argues that, because fortune tellers are fake, there is nothing wrong with banning them altogether, ignoring the fact that not everyone who pays for a fortune-telling session actually believes in this stuff. Many do it for entertainment. Furthermore, he ignores the fact that sometimes, people choose to ignore evidence that counters the beliefs they choose to hold. Many atheists might argue that anyone who donates money to a church is being defrauded, but nobody seriously argues that all religions should be banned.
But getting back to the constitutional issues, I think this guy actually has a better case than the owner of the tattoo parlor, even though his likely arguments also seem to be pretty solid. In the tattoo parlor case, the locality does not actually ban tattoos. If you’ve got a tattoo, regardless of what it depicts, you’re doing nothing illegal. It simply prohibits the making of tattoos within town limits. The distinction is subtle, but important, from a free-speech perspective. Most of the expressive activity associated with tattoos is the content of the tattoo itself, rather than the act of making it. Furthermore, the anti-tattoo law is generally applicable, and simply bans tattoo parlors, without respect to the images or words they choose to put on a person’s skin.
If the law had simply restricted the types of images or words that you could put in a tattoo, it would be unconstitutional, without question. As it stands, the city can at least fall back on the notion that this law doesn’t restrict the expression of a given message or idea; it just places a very narrow limit on how they can be expressed.
The
The county argued that it only regulated a certain form of commercial speech. However, the commercial speech doctrine only applies to advertisements. Speech which one person pays another for the privilege of hearing is no less protected simply because somebody pays to hear it.
Furthermore, the law here was absurdly vague. It provided that “Every person who shall demand or accept any remuneration or gratuity for forecasting or foretelling or for pretending to forecast or foretell the future by cards, palm reading or any other scheme, practice or device shall be subject to punishment.”
So, anyone who gets paid to predict the future has committed a crime? What about weather forecasters, stock advisers, or the county board of supervisors itself (they did, after all, predict that fortune-tellers “shall be punished,” and were paid to do it)?
Even if there were no specific challenge on the specific speech restrictions on fortune-tellers, anyone affected by this law almost certainly could have challenged it as being unconstitutionally vague. Any law which restricts speech, even if the intended application of the law would be constitutional, can be overturned if the law is written so vaguely that a reasonable reader would have no way of knowing what it actually prohibits, since such a law would almost certainly chill constitutionally-protected speech.
Finally, although it doesn’t
appear to have been raised, this law probably violates fortune-tellers’ (and
their clients’) rights to free exercise of religion. After all, many fortune-tellers
probably really believe that they have supernatural powers, even if they don’t.
And many fortune-tellers often base their beliefs on various religions.
In the end, I believe that all of
the most likely possible justifications for this law are horribly misguided,
even by 1950’s standards. If it’s designed to prevent people from being
defrauded by dishonest “psychics,” that’s a decent enough sentiment; but with
minimal research, a person could find all the documentation they would ever
want to show that there’s no evidence that psychics are real. If they still
chose to believe in psychics, and spend their money on them, that’s their
business.
The other possible (though less likely) explanation is that the
All in all, I’m glad that this law was overturned. I might never pay for a psychic, but if I wanted to, I wouldn’t want the government telling me I couldn’t, even if it is for my own good.
By: Rusty Shackleford
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