An interesting case, which illustrates the clash between the First Amendment and criminal law, is underway in Florida. Some Florida psychics, arrested for fraud in the Miami/Fort Lauderdale area last year, are claiming that they have done nothing wrong, and that in fact the police and prosecutors are violating their freedom of religion.
Rose Marks and several other members of her family say that they have real psychic powers, which allow them to help persons in distress and put them in touch with deceased loved ones. Federal prosecutors say Ms. Marks and her family are nothing more than scam artists who take victims' money, in some cases thousands of dollars. One person who says she lost money to Rose Marks, almost a million dollars, is the novelist Jude Deveraux. Ms. Deveraux says Ms. Marks, using the name Joyce Michael, became "the source of pain, deception and fraud while trapping Deveraux with threats and the promise of hope."
The defense attorneys in the case are raising a First Amendment free exercise argument, saying that their clients' beliefs in psychic powers and their other practices are part of a sincerely held religious belief. Federal judges in other circuits have held that states cannot prohibit individuals from telling fortunes for pay, for example. The First Amendment exists to protect speech that allows people to engage in discussion on important issues, or issues that they think are worthwhile. Because the First Amendment, one of our fundamental rights is implicated, a court applied the "strict scrutiny" standard, which requires that the government demonstrate that it has a compelling interest (an interest of the highest order) to suppress or limit the speech, and that it is doing so in the most limited way with the narrowest means available. The cases in which federal judges have upheld the rights of fortune tellers, astrologers, clairvoyants and other "crafty science" practitioners to "speak" under the First Amendment include Argello v. City of Lincoln (143 F.3d 1152 (8th Cir. 1998)),(upholding the right of the plaintiff to tell fortunes for pay). See also a prior Law and Magic post here.
However, while the First Amendment is liberal in its protection of speech and belief, it does not protect criminal conduct. What is at issue here may be instead a law of general applicability, a law that is neutral in terms of its application to everyone. If so, if it applies to everyone regarding of his or her beliefs or speech, then the defendants here have a much less convincing argument that they are being targeting for their religious beliefs. The judge in Trimble v. City of New Iberia makes just this point.
For purposes of plaintiffs' motion, the Court will accept the City's position and assume that consumer protection is a compelling state interest. Therefore, the validity of the Ordinance depends on whether it is reasonably necessary to achieve the City's compelling interest. Plaintiffs argue that consumer protection against fraud and unfair trade practices is already provided under state law in the Louisiana Unfair Trade Practices Act, La. R.S. 51:1401 et. seq. Plaintiffs assert that to the extent fortunetelling and the like may be unfair or deceptive, they are already prohibited by state law. The Supreme Court has pointed out that the "existence of adequate content-neutral alternatives undercuts significantly" the government's position that its challenged legislation is reasonably necessary to achieve its interests. R. A. V., 505 U.S. at 395. If the City were concerned about protecting consumers who solicit the services of the plaintiffs, the City could have enacted legislation similar to the Louisiana Unfair Trade Practices Act.
Trimble v. City of New Iberia, 73 F. Supp. 2d 659 (U.S.D.C., W.D. La., Lafayette-Opelousas Div., 1999)(boldface added by editor).
Incidentally, the First Amendment also does not necessarily protect speech "when it is the very vehicle of the crime itself." See Rice v. Paladin Enterprises, 128 F.3d 233 (4th Circ., 1997) at 244.
The case may depend on the language of the statute under which the defendants were charged as well as what the prosecutors can prove the defendants actually did.