This is a press release from the ACLU – I’ve marked a few especially important passages in bold:
BETHESDA June 10, 2010: The American Civil Liberties Union of Maryland hailed a decision by the Maryland Court of Appeals that strongly defends fundamental free speech rights in a case involving fortunetelling in Montgomery County (Maryland).
In its decision, the state’s highest court, in keeping with rulings from the Supreme Court and courts around the country, ruled that a Montgomery County ordinance banning fortunetelling is an unconstitutional restriction on protected speech.
“This case has never been just about fortunetellers, but about the fundamental right to free speech,” said Ajmel Quereshi, an attorney with the ACLU of Maryland. “While individual fortunetellers can be punished if they fraudulently exploit their customers, banning all fortunetelling is overbroad and unconstitutional. It is not the role of government to decide that broad categories of speech can be banned merely because it finds them distasteful or disagreeable.”
The unconstitutional Montgomery County law provides 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 card, [or] palm reading Š shall be subject to punishment.” The Court of Appeals found that fortunetelling for pay is due full First Amendment protection rejecting the County’s argument that such speech is “commercial speech”, like advertising. The court ruled the statute’s restriction on payment for fortunetelling is equivalent to a ban on protected speech. In addition, the court explicitly rejected the County’s arguments that fortunetelling is inherently fraudulent:
“Fortunetelling may be pure entertainment, it may give individuals some insight into the future, or it may be hokum. People who purchase fortunetelling services may or may not believe in its value. Fortunetellers may sometimes deceive their customers. We need not, however, pass judgment on the validity or value of the speech that fortunetelling entails. If Montgomery County is concerned that fortunetellers will engage in fraudulent conduct, the County can enforce fraud laws in the event that fraud occurs.
The County need not, and must not, enforce a law that unduly burdens protected speech to accomplish its goal. Such a law will curtail and have a chilling effect on constitutionally protected speech.”
The lawsuit was originally brought by Nick Nefredo in 2008, represented by attorney Edward Amourgis of Edwards Phillip Amourgis, PC, after he was denied a license to open a fortunetelling business in Montgomery County. A lower court acknowledged that fortunetelling is protected speech, but nevertheless upheld the law as constitutional. Due to the First Amendment issues at stake, the ACLU of Maryland became co-counsel for Nefedro on appeal, as the case was to be considered by the intermediate appeals court.
The state’s highest court took the case up on its own motion in July of 2009.
As the Court of Appeals found today, courts across the country have consistently held that fortunetelling is protected speech, and absolute bans on it, like the Montgomery County law, are therefore unconstitutional. In addition, the Supreme Court has held repeatedly that the mere fact that speech is for profit does not reduce the level of protection it is due.
Nefedro is represented by attorney Edward Amourgis of Edwards Phillip Amourgis, PC, and Ajmel Quereshi and Deborah Jeon from the American Civil Liberties Union of Maryland.
This is only one example among many in which the ACLU has acted to protect the free speech of fortune tellers. So far they have won every case of this type. [Thank you, ACLU!] More information on the Montgomery case is available here and here.
St. Louis is reconsidering its law. A humorous article about it in the St. Louis Suburban Journals quotes a U.S. Circuit Court of Appeals decision to strike down a Lincoln, Nebraska fortune telling law, stating:
“If the citizens of Lincoln wish to have their fortunes told, or to believe in palm-reading or phrenology, they are free to do so under our system of government, and to patronize establishments or ‘professionals’ who purport to be versed in such arts. Government is not free to declare certain beliefs – for example, that someone can see into the future – forbidden. Citizens are at liberty to believe the earth is flat, that magic is real, and that some people are prophets.”
Meanwhile, in Warren, Michigan, laws restricting fortune telling are becoming stricter, while San Francisco has an outrageously convoluted licensing system for fortune tellers. Such laws have little to do with actually protecting people from fraud (anti-fraud laws do this adequately) and more to do with ameliorating complaints and protecting special interests (see quote below).
Many states and city or county ordinances require licensing for fortune-telling, and they are very inconsistent with the range of fields that require such licenses as summarized here. An article, Occupational Licensing: Ranking the States and Exploring Alternatives by Adam B. Summers (of the Reason Foundation) concluded:
Occupational licensing boards and laws should be continually evaluated for their relevance and perceived need. These reviews should, first and foremost, evaluate whether licensing laws pass the “laugh test” (fortune tellers and rainmakers?). They should also ensure that regulations are narrowly tailored, and that they are providing at least some measure of public benefit, not merely a gravy train for special interests and bureaucrats. Reviews should, furthermore, analyze licensing board performance by evaluating enforcement actions against licensees. Reviews could be conducted by a special commission or an existing agency such as an audit bureau or legislative analyst’s office. [parenthetical remark and question mark is Summers', bold emphasis is mine, mkg]
Robert Lederman offers excellent advice for fortune tellers in NYC which may help others with similar regulations regarding fortune telling-as-entertainment-only. Check out the Law and Magic Blog for updates on fortune telling and other related issues.
As I’ve mentioned before, it is incumbent on all professional tarot readers to know your local laws and establish yourself as a bona fide, legal business in your area.
I advocate supporting the ACLU and being willing to act locally to challenge laws that limit our freedom of speech. I also think that this information should be better understood by anyone who is thinking about certification or licensing for tarot readers. It is a slippery slope to government control that probably poses more liabilities than it does benefits! Comments and polite debate are welcome.