Today, a decision in the Maryland fortune telling case, Nefedro v. Montgomery County. The Court of Appeals finds in favor of Mr. Nedfedro on First Amendment grounds. Here's an excerpt from the opinion.
We now address Nefedro’s First Amendment challenge to the Fortunetelling Ordinance. Nefedro argues that the Ordinance violates his right to freedom of speech as guaranteed by the First Amendment. For the foregoing reasons, we agree....There seems to be no dispute between the parties in this case that fortunetelling is speech. Instead, the issues before us are whether the Fortunetelling Ordinance regulates speech and, if so, whether that regulation violates the First Amendment. Nefedro argues that the Ordinance regulates speech and that, accordingly, the law must pass First Amendment scrutiny. The County responds that because the Ordinance regulates only the payment of money for fortunetelling services, it regulates only conduct. As a result, the County asserts the Ordinance does not implicate the First Amendment. In our view, the Fortunetelling Ordinance does regulate speech. A ... Assuming, as we do, that fortunetelling is speech, the question before us is whether the Fortunetelling Ordinance violates the First Amendment by improperly restricting that speech. The County argues that the Ordinance does not implicate the First Amendment at all because it prohibits not fortunetelling itself, but the receipt of remuneration for fortunetelling. This is not a meaningful distinction. The Supreme Court has held that a restriction on compensation for speech implicates the First Amendment. In United States v. National Treasury Employees Union, the Court found unconstitutional the application of a federal law that banned honoraria for federal employees.7 513 U.S. 454, 115 S. Ct. 1003, 130 L. Ed. 2d 964 (1995). The Court explained that such an outright ban on remuneration for speech implicates the First Amendment even though it "neither prohibits any speech nor discriminates among speakers nor discriminates among speakers based on the content or viewpoint of their messages."...
[A] restriction on remuneration for protected speech is a restrictiona restriction on remuneration for protected speech is a restriction on the speaker’s First Amendment right to freedom of speech. The Fortunetelling Ordinance is such a restriction. By punishing protected speech when that speech is made in exchange for payment, the County is imposing a burden on that speech. Like the government employees in National Treasury, or the authors and publishers in the cases involving “Son of Sam” statutes, an individual who wishes to engage in protected speech for a profit will be discouraged from doing so because there is no promise of a financial benefit. This type of burden on speech is something the First Amendment generally forbids, especially when, as in this case, the burden is directed at speech specifically because of the content of that speech. The above notwithstanding, the County repeatedly asserts, and the dissent agrees, that fortunetelling is “inherently fraudulent” and, as a result, should not receive any First Amendment protection. Indeed, the First Amendment does not protect fraudulent statements.... We are not, however, persuaded that all fortunetelling is fraudulent. While we recognize that some fortunetellers may make fraudulent statements, just as some lawyers or journalists may, we see nothing in the record to suggest that fortunetelling always involves fraudulent statements. Indeed, fortunetellers, like magicians or horoscope writers, are able to provide entertainment to their customers or some other benefit that does not deceive those who receive their speech. Just as many other courts have concluded, we view this non-fraudulent speech as receiving protection under the First Amendment.... In response, the County and the dissent have cited a number of cases in which courts have referred to fortunetelling as fraudulent. We are unpersuaded by these cases. In most of them, the courts were not asked to consider whether fortunetelling was protected speech....In another case, there was no freedom of speech argument before the court and the fortunetelling remuneration ban at issue included an explicit exemption for fortunetelling performed “for the purpose of entertainment or amusement.” ...Yet another case, In re Bartha,134 Cal. Rptr. 39 (Ct. App. 1976), has been explicitly disavowed by that state’s supreme court....These cases do not affect our conclusion that some fortunetelling is simply not fraudulent....Accordingly, we conclude that the Fortunetelling Ordinance regulates speech that the First Amendment protects.
Hat tip to Ken Trombly. For more on the Nefedro case, see here for a Washington Post article and here for an article from the ABA Journal.
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