A federal judge has invalidated yet another fortune telling ban, this time in Alexandria, Louisiana. Federal district court judge Dee Drell agreed with U.S. magistrate James Kirk (great name!) that the city's ban on fortune telling is unconstitutional.
Fortune teller Rachel Adams challenged the ordinance after a police officer issued her a summons, which would have cost her up to $500 a day. The ordinance banned all manner of crafty sciences, including fortune telling, astrology, and palm reading.
The section at issue is 15-127, Fortune-telling, phrenology, palmistry, etc.
It shall be unlawful for any person to engage in the business or practice of palmistry, card reading, astrology, fortune-telling, phrenology, mediums or activities of a similar nature within the city, regardless of whether a fee is charged directly or indirectly, or whether the services are rendered without a charge.
This type of ordinance is a garden variety "crafty sciences" prohibition, banning these practices whether or not they are offered for a fee. I would think that the judge looked to the reasoning in prior cases (Argellio, Rushman, and particularly Trimble). See an earlier post here. Such ordinances target speech. In order to defend them, the government must identify a compelling state interest; here it told the court that fortune telling was fraud and the state interest was to prevent fraud. However, in other such cases, judges have already rejected such arguments, saying that while some fortune tellers may be frauds, the government cannot say that all fortune tellers are frauds. One cannot paint an entire group with that brush. The judge in Trimble told the government that if it wanted to prosecute fortune tellers it could do so under a statute that specifically targeted fraud rather than under a statute aimed at speech.
Further, as another judge wrote, speech that a fortune teller delivers might come true in the future, or it might not. Until it positively has no possibility of coming true, the speaker cannot be branded a liar.
Magistrate Judge Kirk also notes that the ordinance cites as authority LSA: RS 4-7 allows the taxation and licensing of fortune telling, and suggests that if the state recognizes a difference between regulation and restriction, then an ordinance that bans fortune telling is in violation of the statute.
Case citation: Adams v. City of Alexandria, 2012 U.S. Dist. LEXIS 97042.
This paper is a presentation given on September 17, 2010 at the conference on Neuroscience in European and North American Case Law sponsored by the Court of Milan and the European Center for Law, Science, and New Technologies at the University of Pavia. It extends the analysis of Steven Goldberg, of Catholic University Law School Professor, who argues that cases in which neuroscience testimony has been used in legal commitment proceeding to invalidate a putative claim of religious belief hold significance (beyond their formal legal meaning) for the use of neuroscience in religious free exercise cases. Like Goldberg, I believe such cases are important for thinking about the future of neuroscience and law in the area of religious free exercise. In this presentation, I argue that while neuroscience testimony may not be used to invalidated the truth-claim of a purported religious belief, it might be admissible to determine the sincerity of a belief or to evaluated the mental state of the believe for consistency with religiousness. While much more work needs to be done in this area, there is promise for enriching the jurisprudence of religious exercise with the insights of the neuroscience of religious belief.
Download the paper from SSRN at the link.
One of the crucial questions in free exercise cases is the sincerity of belief issue. Is it permissible or advisable to use neuroscience to delve into an individual's brain to test whether his statements about his religious beliefs are sincere?
Christine A. Corcos, LSU Law Center, has published Magic Images in Law in Explorations on Courtroom Discourse (Anne Wagner ed., Ashgate, 2011). Here is the abstract.
In their current Las Vegas act, “bad boys of magic” Penn and Teller make the U. S. flag disappear from a flagpole, somehow seem to set fire to it while it is wrapped in a copy of the Bill of Rights, and then display the document, while Penn proclaims, “[T]he flag is gone but the Bill of Rights remains!” They then end the illusion by “magically” restoring the flag to its pole. The trick is well done, if a little heavy-handedly symbolic, and it emphasizes the similarities between magic and law. In order to make the flag and document reappear “magically,” Penn and Teller do and say ritualistic things.
Penn then asks the question, "Did we burn a flag? Did we symbolically burn a flag? Or did we merely vanish a flag in a patriotic flash of fireworks? It’s all of those, it’s none of those. It’s up to you. Most shows, and movies, and tv are all fake, they’re phony, they’re fiction. And news and sports are supposed to be real. But Penn & Teller, we like to drive fast, right on down the middle, because sometimes we’re showing you and telling the truth as we see it, from the bottom of our hearts. And sometimes we’re lying, and cheating, and swindling. And it’s up to you to figure that out."
Penn & Teller do not intend their fancy footwork solely as entertainment. They, like all accomplished magicians, engage in a number of principles intended to distract and deceive audience members. By adding “magic words” to their on-stage movement, which employs the cardinal principle of misdirection, one of the principles known to all magicians, with which they distract the willing, paying, audience, which involves itself intellectually in the performance to see the deception, they create the illusion that they have burned the flag. The magic words have nothing to do with what is really going on behind the scenes (or on the stage); that is, Penn and Teller could accomplish the trick without saying the words (although not without the movements required to hide the flag). Both the audience and the magicians know that the words do not create the result. But the audience wants the magicians to engage in the ritual - the saying of the magic words, and the use of the magic wand - and the magicians oblige, because all of this ritual is part of the spectacle. To return the flag, Penn says the appropriate language and he and his partner engage in the appropriate movements. The trick ends. When the audience leaves the theater, both it and the magicians know the illusions and the performance are over.
One lawyer-magician suggests that lawyers engage in misdirection as well. “Everyone knows that magicians misdirect audiences, that they visually and verbally disguise their dirty work... Lawyers also engage in verbal misdirection by “blindsiding witnesses, focusing attention on strengths and away from weaknesses, substituting jury charm for legal substance, and bobbing and weaving with words to deflect, convince and prevail.”
Are “magic words” also a form of misdirection and ritual? Is much of required courtroom behavior simply ritual and incantation? When judges use “magic words” or “magic formulas” in writing opinions, are they engaging in the same behavior? Do they create anything substantive by using those words that were not there before? Do the words themselves “mean” anything? Or are they simply a distraction, serving as misdirection, and perhaps because of our insistence on them, denying due process to the clients of those who negligently omit them? Do the wizards behind the curtain manipulate the system in some unfathomable way for their purposes while sending the rest of us on self-serving quests for witches’ broomsticks? To what extent can we compare the use of magic to the practice of law, and make magical analogies to legal practice? To what extent are such comparisons helpful and/or interesting? When parties, jurors, judges, lawyers, witnesses, and onlookers leave the courtroom, are what “magic words” and ritual leave behind more “real” than what is on a magician’s stage?
I do not intend to make legal formalism the entire subject of this Article. Others discuss that subject elsewhere in greater depth. Consider for example Pierre Schlag’s discussion of the law student’s first encounter with “magic words” in law study.
Still another aspect of the juridification of legal thought is the reliance on "magic words." "Students, during their first year of law school, learn that in some legal contexts certain words are magic, in that their mere invocation can be guaranteed to induce certain effects upon legal actors. Such words might include "notice," or "possession," or "strict scrutiny." Legal thinkers often exhibit a haughty derision for the magic words - treating them as unfortunate (though perhaps necessary) legacies of formalism. Nonetheless, legal thinkers clearly have their own set of magic words - words like "values" and "rights" and "reason." These are words which, when accompanied with their usual grammar, will simply arrest thought upon impact."
In a few pages one cannot re-examine such a debate. But what one can begin to do is examine the repeated comparison that exists in the literature between magicians and attorneys, and question why this particular comparison should be so prevalent. Why do we so often see the phrases “magic words,” “the rabbit in the hat,” and “smoke and mirrors” applied to attorneys and the legal profession? Why do lawyers and judges apply such phrases to themselves and their behavior and what do they mean to convey by such usages? Do practicing lawyer-magicians put magic into practice in the courtroom in order to translate stagecraft into “practical magic?” If so, how do other members of the legal profession react?
That a magician knows that magic words do not themselves create a particular effect is one thing. That he uses them to create the illusion that they do so is quite another. That becomes the substance of the magical effect, even though without the words, the trick or illusion would still come off. Lawyers also know that words might or might not create a particular legal effect - hence the importance of the phrase “magic words.” Words may seem to be interchangeable but they may not be so. Attorneys and judges spill a great deal of ink over just such issues. They know that magic phrases might create important illusions, and in law illusions can become reality. However, if courts or legislatures require magic phrases in order to create effects, then those phrases we must have, and the magic phrases then become the substance of law. If the existence of such phrases might be lacking, and the desired effect might still occur, if the lawyers drawing up a document, for example, provide for all the legal requirements. Thus we agree that in order to create the legal effect, we must have the particular magic words, even though we might ordinarily think that other words might do just as well.
Finally, some magicians, like Penn and Teller, have a particular interest in the legal meaning of the magical act. When Penn Jillette says that the difference between “burning a flag” on the Las Vegas stage and then restoring it is fiction, and that entertainment generally is fiction, he has a point. But the act is still “real.” Penn and Teller “really” make the flag vanish. When Penn discusses the law, and the Supreme Court opinion, that protects the act, he takes us further along a journey into discussion of the comparison between magic and law. Such “burning” and restoring is a magic trick, but it is also real, in the sense that it can be speech, just as the real burning of an American flag might also be speech.
The City's ordinance states: "It shall be unlawful for any person to conduct the business of, solicit for, or ply the trade of fortune teller, clairvoyant, hypnotist, spiritualist, palmist, phrenologist, or other mystic endowed with supernatural powers. A violation of this section shall subject the offender to a penalty of up to five hundred dollars ($500.00) for each offense."
Numerous courts have found that prohibiting these practices violates the First and Fourteenth Amendments, the most recent being the Court of Appeals of Maryland in June. Might I point out that this ordinance has all sorts of other problems with it? How does one differentiate mainstream clergy from "spiritualists" and "mystics"? Are there no "hypnotists" working in or around East Ridge, Tennessee? A good many professional people use hypnotism in their practices without claiming that it is "supernatural" in any way. Dentists use hypnotism. Therapists use it. Psychiatrists use it. And examine the way the ordinance is phrased: "...endowed with supernatural powers." Is the assumption that such people have supernatural powers? No claim need be asserted at all? I am both flabbered and gasted.
Yesterday's New York Times piece "Spoiler Alert: Whodunit? Wikipedia Will Tell You" discusses the practice in some Wikipedia articles of revealing secrets: whether it's in the whodunit of a mystery, the howdunit of magic, or, presumably the secrets of the military and national security (although the article doesn't really get into this issue). Notes Rupert Holmes,
“The rules of ‘full disclosure’ don’t apply to fictional creations,” he wrote in an e-mail. “If you give away the secret of a masterful magic trick, it is not as if you are protecting naïve consumers from wasting their money on a con artist. We want, even hope to be tricked, surprised, stunned. An illusionist is not selling us swamp land, miracle cures, junk bonds or Ponzi schemes. He is selling us the childlike thrill of believing, for one moment, that there really could be magic in the world.”
He also questioned the motives of someone eager to report the surprise in a creative work, whether on a personal blog or a collaborative project like Wikipedia — calling the achievement, at best, “a momentary sense of superiority.”
“It’s the self-aggrandizing vandalism of another person’s potential pleasure. It’s spray-painting your name across the face of the Mona Lisa and thinking you’re one up on Da Vinci.”
That's true. But as reporter Noam Cohen says, those who reveal secrets have a number of motives, some of them lofty (academic, informational) and some of them not.
I remember watching the (first) filmed version of Agatha Christie's Witness for the Prosecution with its admonition not to reveal the ending, and I took it very seriously. The idea that I was seeing something secret, and carrying away a surprise that I shared only with others who had sat through the film was exciting, even though I knew intellectually that it wasn't true. Everyone who saw the film knew the ending. But knowing the ending, I think, doesn't alter the shock of that last scene in the courtroom. Just about everyone today knows the ending, even though she hasn't seen the film. The writer and makers of Presumed Innocent aimed for the same effect. Remember how mad some people got when critics yelled in print, "The wife did it"? But knowing the guilty party for me doesn't change the meaning of the film or the book. I still think Presumed Innocent raises important questions about how we treat the accused in our legal system.
To expose or not to expose? Do we have recourse against those who would tell us secrets in spite of ourselves? Educate us when we would rather be blissfully ignorant? Spoil our fun when we are out to be mystified? Is there a constitutional right not to hear or know? I'm working on an answer (not, of course, THE answer)....
So you feel in need of a little spiritual comfort and can't get out to get to church? Want someone to make a house call? The God Squad will happily come by, but maybe not with its recognizable "God Squad" logo on its little VW Bug. Best Buy, which owns the Geek Squad (those tech nerds) trademark has loosed a plague of lawyers upon Father Luke Strand, who has been tooling around in his God Squad car, bringing comfort to the locals, alleging that his logo and his use of the car (even with a clerical collar on it) sails (get it?) too close to the Geek Squad mark.
Hmmm. Does Best Buy really think people will confuse Geeks and God? (Though I realize there's more to the argument than this.) At any rate, I note that Father Luke's license plate reads "GODLVYA." Awfully close to "GODIVA." Isn't Father Luke worried that the famed Chocolatier will pounce on him? But seriously, folks....
From WSOCTV.com, a story about a secularist billboard which shows part of an American flag with the words, "One nation, indivisible." The North Carolina Secular Association and a local group put up the billboard on the Billy Graham Parkway (Charlotte, NC) (the Billy Graham Parkway? Oh, that's ironic). Sometime during the last weekend of June, someone defaced the billboard by adding "Under God". The NCSA has asked the police to investigate, and is replacing the billboard. It is also putting up additional billboards in other North Carolina cities such as Wilmington, Asheville, and Raleigh. The billboards are part of the association's "One Nation Indivisible" campaign.
CNN picked up the story here on its Beliefblog. I found some of the comments interesting, and some distressing or ignorant. What I think is even more ironic is the way in which the words on the billboard brought out someone's willingness to commit a crime because others want to express their freedom of speech. Christopher Grant writes about the meaning of graffiti here in an FBI document. Although he concerns himself primarily with graffiti, gangs, and urban violence, he does say this:
Public attitudes toward graffiti tend to fluctuate between indifference and intolerance. On a national level, the criminal justice system has yet to adopt a uniform response to graffiti and the individuals who create this so-called street art. While some jurisdictions combat the problem aggressively, others do very little or nothing at all to punish offenders or to deter the spread of graffiti. To a large degree, society's inability to decide on a focused response to graffiti stems from the nature of the offense. It could be argued that graffiti falls into the grey area between crime and public nuisance.
Other coverage here, where William Warren, head of Charlotte Atheists and Agnostic, the local group that co-sponsored the local billboard, notes someone would have needed at least a couple of ladders, extreme tallness (or is that tall-icity? no, no, I mean height) to reach the billboard. Maybe they used magic. But seriously now, Mr. Warren also reveals that nearly 60 new members have joined his organization, due to the news of the anonymous graffiti-ists. Ah, more irony.