Law and Magic Blog: May a Municipality Ban Fortune Telling?

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In a recent post I discussed the recent decision by Salem, Massachusetts city council members to expand the municipality's licensing system for fortune tellers. If a state allows fortune telling for a fee, municipalities are free to create licensing schemes. But may municipalities ban fortune telling altogether? Some munipalities have tried to do so, and unhappy plaintiffs have challenged the ordinances. Here's what has happened.

In a 1998 Nebraska case, Argello v. City of Lincoln (143 F.3d 1152 (8th Cir. 1998)), the appellate court upheld a lower court decision that the ordinance was an unconstitutional limitation of the plaintiff's rights under the First Amendment. Here's the city's ordinance.

It shall be unlawful for any person to exercise, carry on, advertise, or engage in the business or profession of clairvoyancy, palmistry, phrenology, mind reading, fortunetelling, or any other business, profession, or art of revealing or pretending to reveal past or future events in the life of another.

Said the Court,

"The ordinance is a content-based regulation of speech. As such, it can be upheld only if it is supported by a compelling state interest. No such interest appears here. 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 that the earth is flat, that magic is real, and that some people are prophets." Read the entire opinion here (via FindLaw; registration may be required, free).

The Court cited an earlier opinion, Rushman v. City of Milwaukee (959 F. Supp. 1040 (E.D. Wis. 1997)), in which another federal judge held that "The line between beliefs (or opinions) and facts is blurry at best. What seems like a provable fact to one person is only an opinion to another: paleontologists like Stephen J. Gould think that evolution is a scientific fact, while creationists think it is only a false belief. Throughout history, many societies have decided that the government should arbitrate truth and falsehood, fact and opinion; their record is not comforting. Doubting the government's talent for or benefit from declaring what is true and what is not, the United States took a different approach; the First Amendment forbids the government from arbitrating truth and fiction. A person is free to write and sell books declaring the earth is flat . . .."(Rushman, at 1041).

Similarly, in a 2004 Tennessee case challenging a city's prohibition against fortune telling for a fee, a federal judge ruled that the ordinance violated fortune tellers' right to free speech, because "predictions are only fraudulent if the speaker knows of facts that will prevent a prediction from coming true." Although the city had, in the interim, repealed the ordinance, and now required that fortune tellers post disclaimers, the judge considered that the disclaimer was also in violation of the First Amendment. The problem? Although the city argued that the disclaimer was a consumer protection measure, the judge used the appropriate strict scrutiny standard, since speech is implicated here, and determined that the city had not sustained the necessary burden of showing that it had a compelling interest in restricting speech. Copies of the ruling, Daly v. City of Dickson, are available from the court. Beth Daly, the plaintiff in the case, pursued her cause with the assistance of the ACLU.

Finally, a Louisiana case. In 1999, Roy Trimble and three other plaintiffs brought an action against the city of New Iberia, Louisiana, in federal court alleging that a city ordinance reading "It shall be unlawful to practice or engage in fortunetelling, palmistry, reading futures and the like" violated their First Amendment rights. U. S. District Court Judge Tucker L. Melancon agreed, ruling, "Because the "First Amendment generally prevents government from proscribing speech or even expressive conduct because of disapproval of the ideas expressed," R. A. V., 505 U.S. 377 at 382, 112 S. Ct. 2538, 120 L. Ed. 2d 305, content-based regulations are presumptively invalid. Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 115, 116 L. Ed. 2d 476, 112 S. Ct. 501 (1991)(citations omitted). Only where a content-based regulation survives strict scrutiny review will it be upheld. Id. Under strict scrutiny, the government must show that its regulation is reasonably necessary to achieve a compelling interest. R. A. V., 505 U.S. at 395. In its opposition, the City states that "the subject ordinance serves a compelling state interest in 'protecting the consumer'."... 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. Instead of choosing the least restrictive means of protecting consumers of New Iberia from the perceived deception of fortunetelling, the City has cast a broad net. As pointed out by the Supreme Court in Wooley v. Maynard, 430 U.S. 705, 716, 51 L. Ed. 2d 752, 97 S. Ct. 1428 (1977), even though government's purpose may be substantial, "that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved." Because the City has failed to meet its burden of proving that the Ordinance is reasonably necessary to achieve a compelling interest, plaintiffs' motion will be granted and the Ordinance will be declared unconstitutional." Trimble v. City of New Iberia, 73 F. Supp. 2d 659 (U.S.D.C., W.D. La., Lafayette-Opelousas Div., 1999).

Most recently, Livingston Parish, Louisiana has passed an ordinance banning fortune telling. It may be that if this ordinance stays on the books that someone will challenge it fairly soon.

So, may a municipality ban fortune telling altogether? Um...if the restriction is content-based, the government must show a compelling state interest and that the restriction is the narrowest possible means of achieving that result, so it doesn't seem so. But check out some other opinions: Wendy Kaminer's commentary here and Gene Policinski's essay here. I certainly understand a municipality's desire to protect its residents from what it considers to be fraudulent behavior. But as Judge Echols and the other judges, including Judge Melancon, noted in their decisions, other statutes and regulations already exist to do that. The First Amendment protects speech, including religious speech, and the right to give and receive messages, with which not all of us agree. If cities want to keep track of fortune tellers, they might really be better off licensing them (and collecting those fees).