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Fortune-Telling Ban Violates the First Amendment:

So a federal district court held last month, in Gryphon's Nest Gifts, Inc. v. Parish of Livingston. This is the latest in a line of such cases, and thus not surprising, but I thought it was worth noting. The opinion relies chiefly on earlier precedent, so the First Amendment logic underlying it might not be clear from reading the opinion alone; fortunately the Law and Magic Blog had a post last year that laid out more of this.

Thanks to Religion Clause for the pointer.

George Weiss (mail) (www):
interesting that they relied basically on a district court case from another district by which they are not bound.
11.30.2008 12:09pm
Soronel Haetir (mail):
This sort of thing merely proves that many cities don't have enough actually pressing matters to deal with.
11.30.2008 12:43pm
TerrencePhilip:
"Counsel for the Plaintiff shall submit a form of judgment after having obtained approval as to form from counsel for Defendant"--- it's unusual for a federal judge to direct the parties to draft a judgment, in my experience the federal court does the judgment itself. Certainly in a case where the judgment won't be complex, I don't know why the judge needs the parties' input.
11.30.2008 12:45pm
Obvious (mail):
I predicted this result...
11.30.2008 12:50pm
Perry Dane:
Here's my problem with this line of cases: Of course, the first amendment would forbid a government from prohibiting the advocacy of fortunetelling, or endorsements of the accuracy of fortunetelling, or any such thing. But what is at issue here is a prohibition on fortunetelling itself. How is that any different from prohibiting any other product or service that society has reasonably determined is both ineffective and possibly harmful? To be sure, fortunetelling, unlike (for example) illegal medical devices or quack drugs, is "just words." But so are the unlicensed practice of law and various forms of illegal financial advising.

To my mind, the question would be different if the fortunetelling were embedded in a religious practice or belief. But this case was clearly decided on free speech grounds, not free exercise of religion or a "hybrid" of free speech and free exercise. Of course, if the claim were framed in free exercise terms, it would trigger some interesting questions about the definition of religion, which we could discuss. But, again, nothing of that sort appears in this decision.
11.30.2008 12:50pm
Jerry F:
Coulnd't the state at least ban fortune telling for money?
11.30.2008 12:52pm
Dom:
Does the decision depend on the Free Speech Clause alone, or also on the Establishment Clause?

If a municipality were to ban non-speech services based on a claimed ability to foresee the future — for example, investing clients' money in stocks the fortuneteller believes will increase in value — would the same logic apply?
11.30.2008 1:01pm
Soronel Haetir (mail):
Perry,

In that case you could argue that the city is trying to forbid some specific form of performance art. Which still seems like it would be problematic for the city.
11.30.2008 1:02pm
Dom:
Couldn't the state at least ban fortune telling for money?

If I'm reading the case correctly (and I'm probably misreading it, since I'm no lawyer), no; it has to be considered identical to writing poetry for money, or else the ban is an unconstitutional content-based restriction.
11.30.2008 1:04pm
George Weiss (mail) (www):
jerry f.

the court relied on a case which ruled that just becuase you get money for speech doesn't make it commercial.

the other case noted that advertising fortunetelling would be a completely diffrent case.
11.30.2008 1:06pm
DiversityHire:
Coulnd't the state at least ban fortune telling for money?

Then how would anthropogenic-global-warming alarmists get paid?
11.30.2008 1:19pm
ChuckC (mail):
So, is "Three Card Monte" still banned, or is that considered "free speech/performance art" also?
11.30.2008 1:30pm
Bob Goodman (mail) (www):
The usual way around liability for advice is to state in advance that the service is for entertainment purposes only.

Most religions make factual claims about the past, present, and future, and most religious ministers solicit money in exchange for their services. I don't see how fortune telling differs from most other religious services for payment.
11.30.2008 1:32pm
ChuckC (mail):

Most religions make factual claims about the past, present, and future, and most religious ministers solicit money in exchange for their services. I don't see how fortune telling differs from most other religious services for payment.


Differences:
1) I have never been charged admission to enter a church.
2) I have never been charged a fee for communion.
3) I have never been charged a fee when I exited the church.
4) Any claims about the future have been general admonitions, not along the lines of "ChuckC, you must get rid of your cursed inheritance. Bring it around back..."
11.30.2008 1:47pm
PersonFromPorlock:
Tens of thousands of investment counselors will sleep easier tonight.
11.30.2008 2:50pm
Michael B (mail):
Fortune-Telling Ban Violates the First Amendment

Is this why Barney Frank, Maxine Waters, Chuck Schumer and others are not going to be reviewed by Pelosi & Co. for their tax payer backed predictions, that all was well with Fannie and Freddie?

"Most religions make factual claims about the past, present, and future, and most religious ministers solicit money in exchange for their services. I don't see how fortune telling differs from most other religious services for payment."

All secularist ideologues and politicians - virtually without exception - make factual claims about the past, present and future as well; though the money they use is tax payer money, not their own private funds. Scores of examples could be listed. They're ever wont to tell us they're the "reality" based prognosticators and reassurers, in part because OPM - other people's money - is at issue, not their own, in other part because when a secularist presumptive expresses his/her beliefs, the rest of the world is expected to applaud their "expertise" and knowing ways - or suffer the consequences.

Hence it's hardly a coincidence that writers such a Raymond Aron and others of note refer to secular religions and similar themes when considering the sundry movements that largely have originated from the Left.
11.30.2008 2:55pm
Jerry F:
"Most religions make factual claims about the past, present, and future, and most religious ministers solicit money in exchange for their services. I don't see how fortune telling differs from most other religious services for payment."

Not sure how relevant the difference is, but one important difference is that religious leaders (except say, Scientologists, but that's a cult) generally really believe their teachings, while fortune-tellers know that they are running a scam.
11.30.2008 3:30pm
Perry Dane:
"Most religions make factual claims about the past, present, and future, and most religious ministers solicit money in exchange for their services. I don't see how fortune telling differs from most other religious services for payment."


I'm willing to assume that some fortunetellers are perfectly sincere. But the more salient difference, ahem, is that religious practice, just because it is religious, is distinctively protected, as a matter of both constitutional law and what many of us would consider a sound political philosophy.

Here's one way of thinking about it: James Madison argued that religious liberty "is unalienable ... because what is here a right towards men, is a duty towards the Creator. It is the duty of every man to render to the Creator such homage, and such only, as he believes to be acceptable to him. This duty is precedent, both in order of time and degree of obligation, to the claims of Civil Society. Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Governor of the Universe." That sense of pre-political obligation to a transcendent non-state normative order is generally absent from activities like fortunetelling (unless they're genuinely religious).
11.30.2008 3:53pm
Perry Dane:
CORRECTED:

"Not sure how relevant the difference is, but one important difference is that religious leaders (except say, Scientologists, but that's a cult) generally really believe their teachings, while fortune-tellers know that they are running a scam."


I'm willing to assume that some fortunetellers are perfectly sincere. But the more salient difference, ahem, is that religious practice, just because it is religious, is distinctively protected, as a matter of both constitutional law and what many of us would consider a sound political philosophy.

Here's one way of thinking about it: James Madison argued that religious liberty "is unalienable ... because what is here a right towards men, is a duty towards the Creator. It is the duty of every man to render to the Creator such homage, and such only, as he believes to be acceptable to him. This duty is precedent, both in order of time and degree of obligation, to the claims of Civil Society. Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Governor of the Universe." That sense of pre-political obligation to a transcendent non-state normative order is generally absent from activities like fortunetelling (unless they're genuinely religious).
11.30.2008 3:56pm
einhverfr (mail) (www):

Not sure how relevant the difference is, but one important difference is that religious leaders (except say, Scientologists, but that's a cult) generally really believe their teachings, while fortune-tellers know that they are running a scam.


I don't know. I read runes. I also teach people to read runes. I also used to do astrology for money.

I figure that the idea that the planets might form some sort of synchronized clock with our inner world is far more plausible than the idea of Mary giving birth to a child without a biological father. Even the Greek version (with Athena giving birth as a virgin) had a biological father (Hephestus).....
11.30.2008 6:24pm
Bleepless:
Perhaps outlawing it may be unconstitutional, but try this: any fortune-teller who does not know in advance that she will be busted is a phony and, rather than being charged with seeing the future, ought to be charged with falsely claiming to be able to do so. The mere fact of being arrested and charged would constitute the heart of the prosecution. It would be a straightforward fraud case. No First Amendment at all. Shazam!
11.30.2008 6:25pm
einhverfr (mail) (www):
not that there aren't fortune-telling scams.... Just that they don't represent the general rule. If you want good information about how the most common of these operates, I would recommend reading Anton LeVey's "The Satanic Witch" where he provides instruction on how to orchestrate such a scam.
11.30.2008 6:26pm
einhverfr (mail) (www):

Perhaps outlawing it may be unconstitutional, but try this: any fortune-teller who does not know in advance that she will be busted is a phony and, rather than being charged with seeing the future, ought to be charged with falsely claiming to be able to do so.


I read runes, astrology charts, and tarot cards for myself, friends, and such. I have never been busted ;-)

Now..... If you want an explenation as to how these things work, I will give you one, but it is based on some different assumptions which are present across the board in archaic cultures but not part of the scientific worldview.
11.30.2008 6:28pm
Secularist (mail):
"Not sure how relevant the difference is, but one important difference is that religious leaders (except say, Scientologists, but that's a cult) generally really believe their teachings, while fortune-tellers know that they are running a scam."

Is the point that religious leaders are less bright than fortune-tellers, or that fortune-tellers are uniquely unable to lie to themselves?
11.30.2008 7:08pm
Obvious (mail):
Imagine a person well trained in medicine, but not licensed. (Say a physician trained in England or Canada, but not willing to take the extra year or more to "retrain" himself on things he already knows. Or perhaps a person who graduated first in his class at Harvard Med but is philosophically opposed to licensing.)

He offers the following service: Bring me your medical records. I'll review them and for a fee give you a second opinion. I order no tests, I write no prescriptions. But I may suggest to you that you return to your doctor and tell him "Should we think about the possibility of X?" The person providing the service IS in fact competent to do so, simply not licensed. And he provides all requested info about his background to prospective clients.

Is this a service protected by the first amendment? Should it be? What if he rephrased his diagnostic suggestions thusly: "I see the possibility of amyloidosis in your future..."?
11.30.2008 7:16pm
einhverfr (mail) (www):
Obvious:

I am not a physician, nor am I a lawyer, though I have plenty of them in my family. My next book is likely to cover medical topics. It is a reprint of one of Henry Wellcome's more obscure works with additional notes about medicine of the day and cover some cases where medical knowledge has moved forwards.

Personally I would assume that something like "talk to your physician about X" would be covered the same way the drug advertisements offer the same advice.

I know of somewhat controversial cases in my state's history where psychological counsellors (non-MD) told their patients to ask for specific prescriptions from their doctors (prozac for example). To my knowledge this individual was never charged, despite the fact that his actions more likely crossed the line than your hypothetical scenario.
11.30.2008 9:31pm
ReaderY:
Has the municipality attempted to prosecute an economist? Their budget director? Their lawyer? A federal judge? ("Our responsibility as a federal court applying state law in a case of first impresssion is to predict how the state supreme court would rule on this issue...")

I would tend to think a more narrowly tailored statute might be constitutional. But this statute wasn't narrowly tailored.
11.30.2008 9:31pm
ReaderY:
Has the municipality attempted to prosecute an economist? Their budget director? Their lawyer? A federal judge? ("Our responsibility as a federal court applying state law in a case of first impresssion is to predict how the state supreme court would rule on this issue...")

I would tend to think a more narrowly tailored statute might be constitutional. But this statute wasn't narrowly tailored.
11.30.2008 9:31pm
Bleepless:
Let's see, now: einhverfr magnanimously announces that there are phonies (though does not mention ever having been fooled himself, surprise-surprise) and quotes as his source the founder and head of the First Church of Satan. Alas, Mr. ein has no sense of humor.
11.30.2008 10:05pm
einhverfr (mail) (www):

Let's see, now: einhverfr magnanimously announces that there are phonies (though does not mention ever having been fooled himself, surprise-surprise) and quotes as his source the founder and head of the First Church of Satan. Alas, Mr. ein has no sense of humor.


Heh....

I have never been fooled, but I have seem people pulling the particular scam found in Mr LeVey's work. BTW, I am not, nor have I ever been, affiliated with Mr LeVey or his organization in any way other than reading some of his literature for curiosity's sake. I have also seen a couple things that look like scams as well.

Most of the real scams out there have a well-defined structure. The most dangerous and well known one is called chasing the mark, where a fortune teller blames impersonal influences on bad luck and promises remedies for a fee. These fees escalate along with the paranoia of the mark and excuses that the problem is more severe than the fortune teller thought. I have witnessed this scam done through mail-order, email, and in-person methods.
11.30.2008 10:32pm
einhverfr (mail) (www):
In general if a fortune teller claims that your problems are the result of some sort of outside influence (demons, clouds of negativity, bad astrological influences, etc) and offers some sort of solution for a fee, they are after your life savings, and that is a scam.

Phone services also have incentives to scam, and I would be wary of those.
11.30.2008 10:50pm
Waldensian (mail):

Now..... If you want an explenation as to how these things work, I will give you one, but it is based on some different assumptions which are present across the board in archaic cultures but not part of the scientific worldview.

Translation: "these things are complete baloney"
12.1.2008 12:22am
David Schwartz (mail):
Was this law subject to strict scrutiny? Are all content-based restrictions on commercial speech subject to strict scrutiny?

Why are people not equally free to believe that snake oil cures cancer, except in scientific studies? Why are people not free to engage in commercial transactions based on this?

Both such commercial transactions and fortune telling could either be or not be pure speech activities. This law prohibits both pure speech activities and activities that are not pure speech, as do laws restricting a practice that advocates using snake oil to treat cancer.
12.1.2008 1:47am
TruePath (mail) (www):
First of all you can't distinguish fortune telling from religion since some Wiccans would claim it was part and parcel of their religion.

Now this same argument would be compelling against restrictions on the practice of say, interior decoration. However, I don't buy it as an argument against licenses for the practice of medicine of law.

In particular it is perfectly legal to offer people advice about legal matters or health matters in return for money. I could set up a service offering advice about the best doctors or disclosing data about survival rates from various procedures. Accountants and even slimy promoters of financial schemes give advice about legal matters (how to distribute your money to minimize tax) and it's common for lecturers who lack a medical or legal license to give presentations that give advice about these matters. While the laws restricting the practice of law/medicine may overreach slightly for the most part they do regulate activity that might suggest to the customer they have a credential they lack.

I'd be interested to see the results of a case where someone gave advice about a particular case while carefully emphasizing they were not a lawyer. Has this happened?

Moreover, the governmental interest in protecting people from false medical or legal advice is significantly greater than merely preventing them from wasting money on fortune tellers. Of course fraud statutes could be used if the fortune teller tried to use their 'advice' for their own personal gain.
12.1.2008 2:48am
David Schwartz (mail):
Well, I read the case.

First, this is not commercial speech. There is nothing commercial about "in the next two weeks, you will meet a dark, handsome stranger". This is ordinary speech. There is no reason this falls into some special easier-to-restrict category. (Speech for hire is not special, as otherwise every book or magazine not given away for free would be special.)

The problem is basically one of how the law is drafted. But as written, it prohibits non-commercial, non-fraudulent speech.
12.1.2008 5:36am
ForWhatItsWorth:
Waldensian: '......Translation: "these things are complete baloney"...'

To that I'll add a simple formula: "Ancient Wisdom" equals "Old superstition."

Isn't there a limitation on speech when one is LYING? Like perjury, for example. Sure, you can perjure yourself, but you WILL pay. Having an opinion is one thing, outright lying is something entirely different. Any "fortune teller," psychic or whatever is LYING and they know it!
12.1.2008 10:49am
einhverfr (mail) (www):

Translation: "these things are complete baloney"


First of all, some of my hobbies are reading philology textbooks (How to Kill a Dragon: Aspects of Indo-European Poetics by Watkins), comparative religion textbooks (I particularly like Mircea Eliade's work), and the like. I also know a thing or two about epistemology.

Certain things can't be studied under the scientific model in a truly valid way, particularly where observation and experimentation can't be properly separated (clinical psychology falls into this trap, as does pretty much all religious thought). Quantum physics is a special case because the argument is not settled as to whether observation and experimentation are separate or not.

So in some of these cases, I don't see why going back to older, traditional models is invalid (certainly the folks trying to argue we need more religion in private life are doing the same-- I agree, but I choose a different religion).

There are a few interesting points that tend to pervade pre-literate cultures according to Walter Ong (see Orality and Literacy: The Technologizing of the Word). The first is that all knowledge is designed around the human life-world. I would add that there is a great deal of comparative patterns that would suggest that primary oral cultures did not differentiate between inner (psychological) and outer (environmental) elements in the world.

Such a lack of distinction becomes the basis, I believe, for Plato's theory of ideas (which has been at the root of all theology since Plato), and is further developed by Paracelsus in his essay on how astrology works (drawing heavily on Plato's Timaeus). The basic idea (expounded by Plato, Paracelsus, and others) is that the outer world is structurally identical to the inner world and therefore we can study the motions of the planets and understand that similar processes occur within us (see Paracelsus's essay Hermetic Astronomy and Plato's Timaeus). However, why limit this to astrology? Why shouldn't Tarot cards also provide a mirror of insight? Or for that matter scrying in a pool if ink? Or casting rune-lots?
12.1.2008 11:29am
sonicfrog (mail) (www):
This sort of thing merely proves that many cities don't have enough actually pressing matters to deal with.


It's not that they don't have enough pressing matters, it's that this is the way AVOID dealing with them!!! :-)
12.1.2008 12:02pm
Ken Arromdee:
Speech for hire is not special, as otherwise every book or magazine not given away for free would be special.

Only if all forms of speech for which money is provided are equivalent. I can think of one big difference offhand between hiring someone to tell your fortune and buying a book: the speech of the person being hired to tell a fortune is specifically tailored to the buyer, which to me makes fortunetelling seem more like a service than other forms of speech that you pay for. It's the difference between selling a law book and giving a particular person legal advice about his individual case.
12.1.2008 4:55pm
Bob Goodman (mail) (www):
The diagnosis-and-treatment-advice-for-a-fee aspect also exists in tutoring and Catholic confession.
12.2.2008 3:31pm
einhverfr (mail) (www):
Bob Goodman--

I know, which is why I became an Ordained Minister of the Universal Life Church shortly after becoming a Reiki initiate.....
12.2.2008 6:07pm
Bob Goodman (mail) (www):
Hey, who isn't a ULC minister by now? We are one church.
12.3.2008 5:38pm
Greg Q (mail) (www):
Gosh, so "furtune telling" is protected by the First Amendment, but political speech against "gay rights" is not. (See Eugene's post about the UT employee fired for opposing "gay rights".)

Or, to translate: the political left doesn't give a damn about freedom of speech, all it cares about is forcing itself on everyone else.
12.3.2008 7:51pm
Bill McGonigle (www):
How can a sincere (if misguided) fortune teller who is not purposely perpetrating a scam not be considered to be engaging in a religious practice? It's premised on a belief in magic and supernatural powers, right? Most religions have other terms for these things but that's fairly defining about all of them.
12.3.2008 9:18pm
einhverfr (mail) (www):
Greg Q:

I consider myself for institutional and fiscal conservatism, but am socially towards the left on things like gay rights.

Some of us are sincere civil libertarians regarding *all* civil liberties (including those of 2A). The right-wing has its loonies too.....
12.5.2008 1:10am