Posted by: captainfalcon | August 6, 2011

Fortune Telling

Fun fact for the day, from the New York Times, is that fortune telling is a misdemeanor in New York State. The full text of the statute:

A person is guilty of fortune telling when, for a fee or compensation which he directly or indirectly solicits or receives, he claims or pretends to tell fortunes, or holds himself out as being able, by claimed or pretended use of occult powers, to answer questions or give advice on personal matters or to exorcise, influence or affect evil spirits or curses; except that this section does not apply to a person who engages in the aforedescribed conduct as part of a show or exhibition solely for the purpose of entertainment or amusement

In Ballard v. Walker, a district court upheld the statute against a Due Process Clause / First Amendment free exercise challenge, even as applied to sincere fortune tellers, on the grounds that its purpose was not to target religious fortune telling:

Petitioner contends that he was prosecuted for exercising his religious beliefs and that his conviction is tantamount to religious persecution. He claims to be a soldier in the Army of his Lord, and that his actions were performed in accordance with his obedience to God . . .

The evidence adduced at trial established that petitioner’s promises to cure the complainants’ spiritual problems were deliberate lies made with fraudulent intent. Even if petitioner’s religious beliefs were bona fide, Ballard still does not present an adequate defense for the crimes for which he was convicted. Recently . . . the Supreme Court ruled that a state would be unconstitutionally infringing upon an individual’s free exercise of religion if it “sought to ban … acts or abstentions only when they are engaged in for religious reasons, or only because of the religious belief that they display.” . . . That is not the case herein.

The crimes of grand larceny and fortune telling were not enacted to restrict religious beliefs . . . More particularly, the [fortune telling] statute itself is directed at all fortune telling activity; it is not limited to fortune telling arising out of one particular religious practice. Therefore, petitioner’s contention that a conviction based on the performance of his “ministerial services” was unconstitutional is without merit.

Ballard v. Walker, 772 F.Supp 1331, 1341-1342. (E.D.N.Y. 1991).

I was unable to find a case striking such a statute on free exercise grounds, but fortune telling statutes in other states have not fared so well under the free speech clause of the Fouteenth/First Amendment.  Both the California Supreme Court and the Maryland Court of Appeals have struck statutes criminalizing fortune telling for a fee as unconstitutional abridgments of the freedom of speech. The reasoning of the two courts is almost perfectly parallel; the Maryland court’s presentation is more recent and succinct:

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 . . . [T]he Court found unconstitutional the application of a federal law that banned honoraria for federal employees . . . 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 based on the content or viewpoint of their messages.” . . . Such a restriction implicates the First Amendment because “its prohibition on compensation unquestionably imposes a significant burden on expressive activity.” . . .

[Thus] a 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 . . . 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.

Nefedro v. Montgomery County, 996 A.2d 850, 856-858 (Md. 2010).

Most strangely, Tennessee prohibited fortune telling only in counties with more than 400,000 residents. The state supreme court struck the ban on the grounds that it arbitrarily benefitted only residents of the most populous counties, in contravention of the Fourteenth Amendment’s equal protection guarantees. However, the court left open the possibility (albeit only a crack) that a law banning fortune telling in the least populous counties might pass muster:

It is difficult, if not impossible, to perceive any reasonable relationship between population and whatever evils might accompany fortune-telling. But if any such relationship does exist, it would seem more plausible that the areas ripe for fertile pickings would consist of the rural counties of the state where the fortune-tellers could prey upon the supposed guillibility of the residents, as opposed to the large metropolitan counties where the populace allegedly is more sophisticated in the ways of the world. In sum, there is no reason, not even a poor one, which can justify this classification.

Canale v. Stevenson, 458 S.W.2d 797, 800-801 (Tenn. 1970).

To my knowledge, the state’s legislature has not tested this dicta, so the New Age pandemic in rural Tennessee no doubt persists.

* The text of the Maryland ordinance: “Every person who shall demand or accept any remuneration or gratuity for forecasting or foretelling or for pretending to forecast or foretell the future by cards, palm reading or any other scheme, practice or device shall be subject to punishment.”


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