Appeals Court Upholds Fortunetelling Restrictions

I recall writing a couple years ago, probably at the old blog, about a Virginia county that required a license to be a fortune teller there. My concern was that licensing gives a stamp of credibility to the practice, but the law was challenged as unconstitutional under the First Amendment. The 4th Circuit Court of Appeals just upheld the law.

The Chesterfield County ordinance defines a fortuneteller as “any person or establishment engaged in the occupation of occult sciences, including a fortune-teller, palmist, astrologist, numerologist, clairvoyant, craniologist, phrenologist, card reader, spiritual reader, tea leaf reader, prophet, psychic or advisor or who in any other manner claims or pretends to tell fortunes or claims or pretends to disclose mental faculties of individuals for any form of compensation.”

The county requires any person operating such a business to get a license from the chief of police, which may be granted after a background check. Anyone convicted of a felony in the last ten years is denied such a permit. There is also a $300 fee for the license, and zoning restrictions on where such businesses can locate.

Patricia Moore-King challenged those restrictions in federal court. The ruling details how Moore-King describes herself and it’s rather amusing. She says on her website, “I am very spiritual in nature, yet I do not follow particular religions or practices, and ‘organized’ anything’s [sic] are not for me. I pretty much go with my inner flow, and that seems to work best.” She also offers this list of her interests:

Spirituality, astrology, Reiki, natural healing, meditation, mind-body-soul-spirit-chakra study, metaphysics in general, new age philosophy, psychology, human behavior, quantum physics, ancient history, philosophy, Kabala/Kabbalah, writing, jewelry making, reading (Manly P. Hall, Madame P. Blavatsky, Alice Bailey, and James Hillman are of special appeal), music, music, music!, and creativity in all forms are passions and interests of mine.

The district court granted summary judgment for the county, ruling that the licensing requirements are merely “de minimis regulation of her business . . . common to all businesses in Virginia and, most likely, in the entire nation.” The court also ruled, perhaps more problematically, that Moore-King’s work was “quintessential deception” and therefore “not entitled to any First Amendment protection.”

That last part is troublesome. What she does is clearly deception, but that is true of all religious practices and it is not up to the government to decide which religious beliefs or practices are true or false; if that were the case, the First Amendment religion clauses would be rendered all but null and void. There is the further problem that if the county’s position is that fortunetelling is inherently deceptive, then why grant a license to do it? You are only supporting its legitimacy by doing so. The appeals court didn’t seem to like this argument much:

If, as the County contended at oral argument, all predictive speech were inherently deceptive, most religious prophesy, financial prognostication, and medical diagnosis would fall outside the scope of constitutional protection. The reality that much professional intercourse depends on predictions about what the future may bring suggests that categorical branding of fortune telling as unworthy of First Amendment protection for that same reason is untenable.

The County cannot establish either premise of its argument that fortune telling is inherently deceptive speech outside the scope of the First Amendment. Consequentially, we conclude that the First Amendment Free Speech Clause affords some degree of protection to Moore-King’s activities.

I think this is exactly right. The court then upholds the licensing restrictions, and again I think this is the constitutionally correct thing to do. Being protected by the First Amendment does not mean that there can be no restrictions at all on the time, place or manner in which those rights are exercised. And the regulations in this case are generally applicable to all businesses and quite routine. So overall, I think the court got it right.

You can read the full ruling here.

18 comments on this post.
  1. Bronze Dog:

    One of those sticky issues. I’d love to see fortune tellers and the like out of business but, to me, this looks like one issue where we can’t justifiably use the state to protect the gullible, so we just have to exercise our own free speech to counter the fortune tellers’.

  2. dingojack:

    “That last part is troublesome. What she does is clearly deception, but that is true of all religious practices and it is not up to the government to decide which religious beliefs or practices are true or false; if that were the case, the First Amendment religion clauses would be rendered all but null and void”.

    Simple: all religions are inherently false and deceptive. See – no viewpoint discrimination, no having the government pick and choose.
    And now for my next trick….

    But seriously, how will this affect fraud cases? Could the purveyors of false information simply point to their license and say the magic words: ‘First Amendment’ to get out of jail free?

    Dingo

  3. irisvanderpluym:

    It is worth bearing in mind that commercial speech enjoys far less First Amendment protection than, say, political speech. The statute contains the broad qualifier “for any form of compensation.” Still as you (and dingojack) point out it is exceedingly difficult to make the case that the same restrictions shouldn’t apply to churches: tithing and the like are forms of compensation, and occult practices are still religious practices.

    In New York, fortune tellers and the like are required by law to inform customers that their services are “for entertainment purposed only.” Shouldn’t clergy be required to do the same before every fleecing of the flock?

  4. Michael Heath:

    Ed writes:

    What [Patricia Moore-King] does is clearly deception, but that is true of all religious practices and it is not up to the government to decide which religious beliefs or practices are true or false; if that were the case, the First Amendment religion clauses would be rendered all but null and void.

    It’ll be interesting to watch over the arc of time how the government’s protection for individuals to practice their religion is challenged by others who find themselves defrauded by the religious and seek justice from their government. I think it’s safe to say that the less religious we become, the more pressure we’ll observe on government and the courts to more amply defend the rights of the defrauded than that of the religious people who defraud them.

    Today we look back in horrid wonder how any reasonable and smart person could justify slavery, e.g., Thomas Jefferson. I wouldn’t be surprised if a couple of hundred years from now those future generations will look back and wonder why we demanded government protect the rights of the religious while they abused children and defrauded others. And yet that is our society’s default position; even from liberals (in general).

    Not that I’m an innocent. I’m fairly certain my being a meat-eater and hunter of game for meat (not trophy) will someday be universally condemned as well. We are to some extent products of our time; which on its own is hardly a compelling justification for the immorality future generations might assign us. Especially when we’re cognizant that our behavior is arguably immoral.

  5. Modusoperandi:

    To be fair, it didn’t come as a surprise to real fortune tellers.

  6. irisvanderpluym:

    @ Modusoperandi …for the same reason that you never need to schedule an appointment with one.

  7. Ed Brayton:

    Modusoperandi:

    There’s a great comedian named Dwight York who says, “I went to see a psychic the other day and right away I could tell she was no goddamn good — she took my check.”

  8. Childermass:

    I agree that as a religious practice the government has no right to regulate fortune telling. But the government has every right to regulate or prohibit commercial practices. Fortune telling for money is clearly a means of making money and only making money and thus is commercial. But if the fortune tellers want to work pro bono then they should be free to do so.

  9. Modusoperandi:

    Ad on the lef:

    LET THE NUMBERS REVEAL YOUR FUTURE
    Diana clairvoyant-numerologist
    CLICK HERE

  10. drr1:

    This is a rather narrow holding. Once the court (correctly, under existing precedents) decided that this kind of speech gets First Amendment protection, it disposed of the remaining speech and free exercise issues in a straightforward way.

    (1) The government sought to regulate, and did regulate, professional speech, not commercial speech. Likewise, the court said this wasn’t really a time, place, or manner regulation. Stated a bit differently, the state can license and regulate fortune-telling speech on the same grounds that it can license and regulate speech by lawyers, accountants, doctors, and the like.

    (2) As to the free exercise claims, the court – using the speaker’s own representations – said this wasn’t an instance of religious exercise. No religious exercise means no free exercise (or RLUIPA) claims.

  11. bobmunck:

    I love the inclusion of quantum physics in the middle of her list of interests. Now if she’d said “string theory” it might have been more believable and a better fit.

  12. eric:

    I love the inclusion of quantum physics in the middle of her list of interests

    So did I. If she puts that in a list with jewelry-making, let’s just say I bet that’s some really ugly jewelry.

    Looks to me that the state is basically charging business operators for a background check, and the real restriction they want to enforce is “no felons.” Which gets back to Ed’s original objection (that a license gives some impression of state endorsement): seems to me you are right, and it does in fact do that. What we have to hope is that propsective clients will understand what the state license actually guarantees. Which is a non-felon, not magical powers.

  13. Synfandel:

    “…professional intercourse…”

    Hee hee hee.

  14. Synfandel:

    I love the inclusion of quantum physics in the middle of her list of interests

    So did I. If she puts that in a list with jewelry-making, let’s just say I bet that’s some really ugly jewelry.

    The jewellery is simultaneously ugly and not ugly until you look at it.

  15. robb:

    so she is interested in quantum physics? i would like to see her write out the Hamiltonian for a particle in a harmonic potential, then derive the energy eigenvalues and eigenstates.

  16. Ichthyic:

    But seriously, how will this affect fraud cases? Could the purveyors of false information simply point to their license and say the magic words: ‘First Amendment’ to get out of jail free?

    I don’t see how. Fraud as legally prosecuted in similar instances AFAICT is a case of “bait and switch”.

    IOW, fraudster offers product “A” with “x,y, and z properties”, and consumer gets product “B” instead, with entirely different properties.

    like selling zirconium as real diamonds.

    so, to use the above, say an ad agency puts together an ad for a company that indeed offers diamonds at “huge discount prices”, and the consumer finds out that the product sold to them is actually zirconium.

    clear case of fraud.

    but, what if the advertising agency is making an ad for a company that is really selling diamonds, and says: “owning one of our diamonds will make your life better!” There is no inherent truth to that statement, but it would also not be considered fraudulent.

    IMO, astrology is kinda like that; a pure fabrication rather than a bait and switch.

  17. Ichthyic:

    …as to the licensing issues….

    all businesses SHOULD be licensed, for a great many reasons that have nothing to do with the products they offer.

    to act as a way of delineating “legitimate” businesses (like say a medical clinic) from ones like an astrologist or palm reader, I have seen many counties/states require such businesses to add things like “for entertainment purposes only” to their advertisements or in other prominent places.

    would that work as a general rule?

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