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.
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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.
18 comments
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July 25, 2010 at 3:57 pm
Melissa Tarot
This is outstanding. In St. Louis City, it’s still illegal to tell fortunes, and in the same law – you also can’t raise the dead. I’m glad these old laws are being revisited.
July 25, 2010 at 4:29 pm
abbee
Charlatans make things so much harder for genuine & sincere practitioners. What a shame. 😦
July 25, 2010 at 5:35 pm
jamesricklef
Mary, Thanks for sharing this great article!
Melissa — Actually, I do think it’s a good idea for it to be illegal to raise the dead. Can you just imagine all the zombies wandering around if there weren’t a law against it!
😉
Best,
James
July 25, 2010 at 6:49 pm
mkg
Melissa –
Thanks for the info about St. Louis. I looked it up and they’re talking about repealing their law. I’ve added in a link and a comment about this in my post.
James – Haven’t you noticed the zombies? They’re everywhere!
July 25, 2010 at 9:18 pm
Cher Green
Great article.
Well, I tried to find out what the laws were here in SC.
It seems you have to have a permit if you are a traveling Fortune teller, but didn’t find any other references.
Oh, and It is perfectly legal to beat your wife on the court house steps on Sundays.
check this out if you are interested in other laws that seem very outdated and odd: http://www.dumblaws.com/laws/united-states/south-carolina
July 26, 2010 at 1:12 am
Victoria Evangelina
Oh, my: thanlk you for this post, Mary! It is amazing how governemnts have a say in everything! Soon we’ll learn that intimate relations between husband and wife are being regulated by law, too… Hopefully, zombies, fortune telling and skrying will soon be as “normal” as having pets: if you want, go ahead, but beware of results!
July 26, 2010 at 9:59 am
mkg
Victoria – I hate to tell you but many municipalities still have laws on their books against specific sexual acts – in or out of marriage. Check out the “dumblaws” site that Cher Green links to above.
July 26, 2010 at 7:57 pm
Eartha
Thank you for posting this, I’m definitely going to share. The dumb laws website is a really interesting read! Thanks again!
July 28, 2010 at 2:06 pm
Cynthia
A terrific post, Mary. Thanks so much for the excellent overview, and the helpful links.
July 29, 2010 at 10:24 am
The Wild Hunt » The Perils of Spiritual Counseling
[…] put on the practices when they are allowed. Tarot expert Mary K. Greer notes that in many places “legal” fortune-telling often goes with hand-in-hand with unreasonable licensing deman…. “…in Warren, Michigan, laws restricting fortune telling are becoming stricter, while […]
August 1, 2010 at 7:15 pm
NowLegalinMD?
Thanks for this post, Mary. Though no longer being considered an outlaw may diminish some of the rush….
August 3, 2010 at 3:09 pm
Steve Bell
Only cards and palms? So if I used the I Ching, geomantic sticks or a crystal ball, it would have been OK even under the old legislation?
I suppose the ordinance had to place limits on the types of fortune-telling that should be illegal, or we’d have had actions against financial advisors using computer models 🙂 We can’t have that; computer models are science. Yes they are!
August 3, 2010 at 3:25 pm
mkg
Steve – I’m not sure what you are referring to when you say “only cards and palms”. I don’t know of any legislation that describes fortune-telling as only these two. Nor do I know of any that mention all forms of divination as that would take pages and pages and still miss many, I’m sure.
The point is often made that legislation deliberately overlooks society-sanctioned predictions such as weather prediction, financial advice and supposed scientific prognostication that is often based on non-scientific indicators.
September 10, 2010 at 7:38 am
Links to Proof of Religious Persecutions « Gosplodey's Blog
[…] https://marygreer.wordpress.com/2010/07/25/fortunetelling-protected-under-first-amendment/ […]
September 13, 2010 at 3:15 pm
Elizabeth Hazel
I think Steve (above) was referring to the Montgomery county legislation, which states “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 shall be subject to punishment.”
The folks in Maryland can still go to astrologers, and people who divine by looking at chicken guts, knucklebones and wax puddles. As for zombies, Terry Pratchett calls them “differently alive.” We shouldn’t discriminate again them, either.
Running a person’s name through a police database doesn’t constitute a very good method for giving a reader’s license – it just verifies that the individual hasn’t been prosecuted for fraud. It doesn’t say anything about that individual’s skill as a reader.
Counties or cities that require licenses can’t enforce the rule in any case – the honest readers pay for them, and of course the con artists don’t. Cops can’t tell the difference. Bureaucrats should know that its better to charge sales tax than a licensing fee. And if they really need more money, they should tax RAM or hard-drives, and tap into the wonderful world of virtual real-estate.
Liz
October 30, 2016 at 11:17 pm
Legal Issue affecting Tarot Readers | Let's Talk about Books
[…] References Greer, M. K. (2010). Fortunetelling protected under first amendment. Mary K. Greer’s Tarot Blog. Retrieved from https://marygreer.wordpress.com/2010/07/25/fortunetelling-protected-under-first-amendment/ […]
January 31, 2017 at 12:13 pm
bartlidofsky
I know I’m a few years late, but am using your article as a reference in a group. I am not as enamored of the ACLU as you are; the Jackson Square Psychics in New Orleans, who have been reading Tarot in Jackson Square for decades, had a lot of problems the city council, especially one particular member who had a major conflict of interest, who would pass a law against them, only to have it thrown out by the court, only to pass another, similarly worded law. The reason why this was effective was because the ACLU flatly refused to help them; they found a local lawyer who would work for expenses, but those were not inconsiderable.
February 2, 2017 at 11:53 am
mkg
Bart, I’m sorry to hear this. Without knowing more about the case I really can’t comment on it.