According to the Cincinnati Enquirer, the prosecuting attorney of Butler County, tired of bad weather, wants to indict Punxsutawney Phil Sowerby (yup, the magic groundhog), for "purposely, and with prior calculation and design" misleading people about the date that spring would start. And he wants Phil done away with. Permanently. Here's a link to a copy of the indictment.
Now, first of all, Mr. Gmoser, the DA in this story here, has clout in Ohio, I admit, but I hasten to point out that Phil lives in Pennsylvania. Extradition is a problem. Will a Pa. judge okay shipping a groundhog across the border for maliciousness (and Mr. Gmoser will have to make a case for faulty forecasting and pernicious prediction by the grumbly groundhog)? Do human laws apply to marmots?
Second, is Mr. Gmoser suggesting that a whistle pig is not protected by the First Amendment? That Phil's expressive speech of recognizing his shadow, and thus "predicting spring" is not protected by the First Amendment? Check out cases such as Rushman v. City of Milwaukee (959 F. Supp. 1040, 1997) (false statements fraudulent only if the speaker has knowledge that the statement cannot come true).
I cry fowl! Couldn't Mr. Sowerby argue that whatever humans interpret from his conduct is our problem? After all, human beings force him through this event on the 2 of February to see if he sees his shadow or not. It isn't really his idea. Who decided to engage the furry Mr. Sowerby in this venture? Did he ever ask anybody to believe his predictions, such as they are? Aren't those beliefs and assumptions about whether a groundhog can predict the coming of spring by seeing his shadow or not, amusing as they are, really quite inane? Well, then, why blame the groundhog?
There are probably some criminal defenses available, but it's Friday and I'm tired.
Fourth, how much gmoser could a woodchuck chuck?
Yes, the indictment is a joke. At least, I think it is. But I hope no one goes sciurid hunting, hoping for a bounty. That would make a tragedy out of what is Mr. Gmoser's attempt at humor.
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.
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.
Some in the media like to think they influence public opinion, but are the news pundits all hot air? At the same time, many news outlets play the "fair and balanced" card, when the evidence is, well, pretty clearly all on one side. So what's the score with regard to climate change?
The relationship between the mass media and climate change governance remains largely unexplored in the academic literature. In this paper, I argue that the media does influence outcomes on climate change. I provide an overview of media accounts on climate change, the factors which influence the reporting, and how the media can shape public opinion on the issue. Throughout, I treat the mass media as a mechanism of information diffusion and argue for its agenda-setting power on the climate change issue. Finally, I forward an original theoretical model whereby freedom of the press influences climate change governance. I argue that a freer media is more likely to transparently report the scientific consensus and thus take an implicitly normative stance in favor of climate change action. I then corroborate the model with multivariate regression analysis. The regression output finds that freedom of the press may correlate better with climate change activism than originally thought.
Interesting post from an Indian judge concerning tantrik practices. Apparently tantriks are regulated under Indian law. Says Justice Kannan, in part:
The Indian Medical Council Act, 1956 establishes the Medical Council of India (MCI). The Council has notified Indian Medical Council (Professional Conduct, and Ethics) Regulations in 2002 which mandates observance of the code of conduct on the pain of suspension or removal of the licence to practice for the breach of its regulations. They include the practice against promising magic remedies and advertisements. To the extent to which the Regulations are directed against practitioners of only the allopaths, it is obvious that we have to look elsewhere for the practitioners of other systems of medicine. The Department of Ayurveda, Yoga & Naturopathy, Unani, Siddha and Homoeopathy (AYUSH) established by the Ministry of Health & Family Welfare in March, 1995 gives no similar guidelines.
It is not merely unethical to prescribe a magic remedy; it is illegal under the Drugs and Magic Remedies (Objectionable Advertisements) Act passed as early as in 1954. The Act proclaims its avowed object to be to control the advertisement of drugs in certain cases, to prohibit the advertisement for certain purposes of remedies alleged to possess magic qualities and to provide for matters connected therewith. Magic remedy includes ‘a talisman, mantra, kavacha, and any other charm of any kind which is alleged to possess miraculous powers for or in the diagnosis, cure, mitigation, treatment or prevention of any disease in human beings or animals or for affecting or influencing in any way the structure or any organic function of the body of human beings or animals’. Even machines of science or of electric treatment whose magically curative properties are advertised by a person as capable of increasing the sexual virility of a patient is prohibited under the Act. They will be treated as articles intended to influence the organic function of the human body which is prohibited under the Act.
Fort Worth's Transportation Authority has banned all religious bus ads after several Christian groups objected to atheist bus ads that were part of the "Good Without God" campaign this holiday season. More here.
Early in 2011 the Centre for Inquiry Canada will begin its Extraordinary Claims Campaign (assuming it raises enough funds). The Centre will target such items as those listed on its "Extraordinary Claims" page (Bigfoot, Witches, UFOs, Aliens, Water Memory, and yes, mainstream religions). The campaign will include an ad campaign on Toronto buses--which will have to be approved by the proper authority. Coverage here from the Digital Journal and here from the Edmonton Sun. Last year, the Centre was one of the organizations sponsoring a "There's probably no God" campaign on municipal buses and local billboards. Those campaigns caused ruckuses (ruckusi?) everywhere they appeared, and some transit authorities and advertisers got skittish. Check the Atheist Bus website for updates on activites.
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.