The case is Nefedro v. Montgomery County, decided today (thanks to How Appealing for the pointer). I blogged in 2008 about a similar federal district court decision; as I noted then, it’s part of a longish line of such cases. The court’s conclusion that speech remains presumptively fully protected (and doesn’t become less-protected “commercial speech,” which really means commercial advertising) even if it’s sold for money is clearly correct under well-settled First Amendment precedents.
The one possible response, which the dissent makes but without much detail, is that fortune-telling is inherently a lie, and thus falls within the First Amendment exception for knowingly or recklessly false statements. The precise scope of that exception is not entirely clear, but it should indeed apply when the speaker gets money for the knowingly or recklessly false statements. At the same time, it seems quite likely that at least some fortune-tellers sincerely believe that they can predict the future, and that some such transactions are done for pure entertainment, with no representation that the speaker actually has fortune-telling gifts. (The ordinance applies to “pretending to forecast or foretell the future,” which is likely broad enough to cover consensual fiction and not deceptive lying.) And the majority says that it would be constitutional to have an ordinance that bans fraudulent fortune-telling, so long as the prosecutor proves that the speaker indeed made a knowingly false statement that was intended to deceive (i.e., that wasn’t a consensual fiction).
Note, by the way, that the ordinance on its face covers a good deal more than just fortune-telling:
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 ….
Surely this can’t really have been meant to ban “any other scheme, practice or device” for “forecasting or foretelling … the future,” no? (I take it that the “any other” would probably be narrowed to things like cards and palm-reading, using the canon of ejusdem generis. But I suspect that there’d be some uncertainty about precisely what is like cards and palm-reading, and what’s like legitimate forms of forecasting or foretelling.)
Bill Bradford says:
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 ….
Weathermen forecasting the future weather shall be subject to what punishment?
June 10, 2010, 2:37 pmDave N. says:
Yes, read literally, Al Roker breaks this law with every weather report.
June 10, 2010, 2:37 pmDave N. says:
Bill Bradford,
Great minds evidently think alike.
June 10, 2010, 2:37 pmArkady says:
I assume Nefedro argued pro se…I mean, why waste the money…
June 10, 2010, 2:42 pmDave N. says:
David Bernstein begins the preceding post:
I guess this means that if they are getting paid for the prophesy, Montgomery County could prosecute them under this ordinance.
June 10, 2010, 2:45 pmJoseph Slater says:
I predict that this law will be . . . oops, better keep it quiet.
June 10, 2010, 2:48 pmCrunchy Frog says:
You’re gonna take
A walk in the rain
And you’re gonna get wet
I predict
You’re gonna eat
June 10, 2010, 2:56 pmA bowl of chow mein
And feel hungry real soon
I predict
Steve says:
you’re gonna get an ice cream headache… it’s gonna hurt real bad…
June 10, 2010, 2:59 pmzuch says:
This is as it should be. Otherwise we’d be able to ban witchcraft, homeopathic medicine, and prayer as well.
Cheers,
June 10, 2010, 3:01 pmMark Horning says:
So if a Doctor writes a perscription for anti-biotics and tells the patient,”this wil cure your strep-throat” is he, allong with the weather-guessers breaking the law?
June 10, 2010, 3:01 pmADF Alliance Alert » Maryland Court of Appeals: First Amendment forbids restrictions on commercial fortunetelling says:
[...] Related post by Eugene Volokh on the Volokh Conspiracy [...]
June 10, 2010, 3:04 pmzuch says:
Not sure about that. Look at the art of “cold reading”.
Cheers,
June 10, 2010, 3:05 pmLTEC says:
I don’t understand why fortune-telling isn’t like any other product or service that is sold, most of which are (I believe) legally obligated to work essentially as advertised. At least that’s the default (nudge, nudge). Often fortune-telling is accompanied by a disclaimer “for entertainment purposes only”.
I think a stronger warning should be required: “The government believes this service to be useless. Use at your own risk.” Nasty perhaps, but not nearly as nasty as the warning on cigarettes.
June 10, 2010, 3:09 pmDTR says:
I saw this coming.
June 10, 2010, 3:13 pmOwen H. says:
Maybe they should require Churches to post that too.
June 10, 2010, 3:13 pmzuch says:
Why would such ‘commercial’ speech be subject to more regulation or scrutiny? Is it that fraud is specifically held to be outside of the protections of the First Amendment and that some such ‘speech’ also constitutes the crime of fraud? (Note that I think it possible that some “speech” sold which contains knowingly false statements [say, e.g., novels...] is not fraud).
Cheers,
June 10, 2010, 3:14 pmroy says:
Doesn’t the law violate itself by predicting that certain people shall be punished?
June 10, 2010, 3:14 pmKatahdin says:
What warning would you have for Santeria? Wicca? Scientology? Catholicism? I predict :-) none of those can be shown to be safe and effective in double blind trials.
June 10, 2010, 3:16 pmgeokstr says:
Perhaps also on claims of being able to Heal the Planet, and/or Make the Seas Recede as well.
June 10, 2010, 3:20 pmAdam B. says:
I’ll be preparing Madame Marie’s habeas papers.
June 10, 2010, 3:43 pmShelbyC says:
I still don’t know why requiring a license to practice law or medicine doesn’t violate the first amendment.
June 10, 2010, 4:15 pmArthur Kirkland says:
Can the suitability rule survive this?
On the other hand, this decision is probably the only way religions in general and televangelists in particular could stay in business.
Entitling schemers to prey upon the gullible may be an unsavory but necessary element of free speech.
June 10, 2010, 4:26 pmPierre Corneille says:
Kind of hard to prosecute. I imagine that a representative from the HR department at the weatherman’s TV station discreetly leaves an envelope of cash in a box marked “suggested donation” outside his office.
June 10, 2010, 4:27 pmCJColucci says:
Reminds me of a New York case called Pando v. Fernandez (or maybe Hernandez). Fernandez bought a lottery ticket and, according to the complaint, contracted with Pando to pray to one “St. Eligua” (the court, trying to identify this saint, concluded that it was probably St. Eligius, namesake of the fictional hospital in “St. Elsewhere”) for good luck in exchange for a share of the winnings. Pando prayed very hard. Either Fernandez got lucky or St. Eligua intervened. Fernandez won and Pando sued for her share.
June 10, 2010, 4:37 pmThe trial court dismissed the complaint on the ground that it would be impossible to prove that St. Eligua had acted at Pando’s behest. The Appellate Division (NY’s mid-level appeals court) reversed, ruling that, assuming the allegations in the complaint were true, Fernandez had conrtracted with Pando to pray to St. Eligua to assure that Fernendez won, Pando had, in fact, prayed to St. Eligua as promised, and plaintiff won. These facts were provable by secular means. Whether St. Eligua intervened, or even existed, was immaterial. Fernandez had contracted for Pando’s prayers, Pando had prayed as promised, and Fernandez had won. I’m guessing that the parties settled, because I never found a later trial court decision.
Guy says:
Are you talking about giving legal/medical advice? I don’t see any serious First Amendment argument against requiring a license to perform surgery, or to represent a person in litigation.
June 10, 2010, 4:38 pmShelbyC says:
Yes, sorry.
June 10, 2010, 4:46 pmPooblicus says:
While still in grad school back around the time that econometrics emphatically stopped being predictive, I proposed that economists, fortune tellers, and weathermen should form a common union on the grounds that our ability to predict the future was essentially the same.
It did not make me too popular with some of the faculty.
June 10, 2010, 4:48 pmShelbyC says:
Sorry, yes, that’s what I meant.
June 10, 2010, 4:52 pmCan't find a good name says:
Found it: Pando by Pando v. Fernandez, 485 N.Y.S.2d 162, 127 Misc.2d 224 (N.Y. Sup. 1984), rev’d, 499 N.Y.S.2d 950, 118 A.D.2d 474 (N.Y. App. Div. 1986).
June 10, 2010, 5:05 pmGerard Harbison says:
Does this ruling cover economists as well as fortune tellers, or did the court decide a line has to be drawn SOMEWHERE?
June 10, 2010, 5:12 pmTed says:
Thread winner. The legislators should be punished.
June 10, 2010, 5:23 pmTed says:
Well medicine, or at least surgery or prescribing drugs, I can understand. Cutting someone is not expressive conduct and authorizing something has an expressive component, but it’s not the expressive part that’s operative and regulated, but the legal effect of authorization to obtain a drug. But yeah, all lawyers do is yak and advise, so why no First Amendment violation in banning that yakking?
June 10, 2010, 5:27 pmTed says:
And our bloated economy. Gullibility facilitates the effective redistribution of wealth to otherwise useless people.
June 10, 2010, 5:28 pmDjDiverDan says:
Putting aside meteorologists, since most weather reports are given away for free on commercial radio or television stations (though the weather reporters are paid by the stations), what about the host of investment advisors out there that sell their advice through subcription newsletters or pay-to-subscribe websites? When they recommend a given stock or commodity, aren’t they predicting that the price will rise in the future? If they are doing it based upon “technical analysis”, I don’t see how this is any different from reading tarot cards or tea leaves.
June 10, 2010, 5:32 pmtheobromophile says:
PT Barnum said that a fool and his money will soon be parted. Now Montgomery is attempting to do away with a certain economic Darwninism?
I know people that have paid good money for psychics and found every penny to be worthwhile and others that have happily thrown away $10 or $30 on a night’s worth of entertainment, feeling as if it is about as worthwhile, and as fun, as going to the movies. Such should be their choice.
June 10, 2010, 5:53 pmTed says:
Agreed. But they should prevent psychics from accepting food stamps. There must be a line drawn somewhere.
June 10, 2010, 6:01 pmSuperSkeptic says:
I would imagine it is the same rationale for why libel/defamation doesn’t violate the first amendment, i.e., merely because it’s been that way for a long time.
June 10, 2010, 6:03 pmToday's Tom Sawyer says:
Don’t forget, we’ve also got remove protection from fiction authors, television and movie producers if we accept the absurdly strict “knowingly false” standard the dissent wanted….Anyone here seen Invention of Lying?
June 10, 2010, 6:16 pmDr. Caligari says:
Just a few weeks ago I read an adoption case (sorry, don’t remember the name) from here in New York where the judge approved the adoption despite some requirements not being complied with. The adoptive mother’s occupation was given as “fortune teller”. (The adoptive father’s was “used car salesman”). The judge in no way indicated that the mother’s occupation had any bearing on her fitness to be a parent.
June 10, 2010, 6:20 pmShelbyC says:
Has it? When did they first start requiring law licenses?
June 10, 2010, 6:32 pmOwen H. says:
Compelling State interest. That’s why you can’t perform human sacrifice even though you have religious freedom.
June 10, 2010, 6:34 pmOwen H. says:
“Thank you for calling the Second Sight Detective Agency. We know who you are, and why you’ve called, so at the beep, hang up.”
I have little sympathy for frauds. That said, I do believe some in fact do have some ability to See. Craft a law that goes after true frauds.
June 10, 2010, 6:39 pmFub says:
Not to mention every phone carrier that uses linear predictive coding, although I’ll grant that they aren’t making predictions vary far into the future. But any prediction of “the future”, by any “scheme, practice or device” appears to be sufficient.
June 10, 2010, 6:40 pmmamiejane says:
As a Utah resident, I have a number of friends who have left the LDS church and asked if there is any way to sue to get their tithing back now that they’ve decided the promises made and the history put forth by the Church are false. I think fortune telling, like religion, involves accepting the possibility of the truth of a spiritual framework and is protected by freedom or religion, not freedom of speech.
June 10, 2010, 6:42 pmCrunchy Frog says:
Hey, psychics gotta eat too, you know.
June 10, 2010, 6:43 pmA.W. says:
Owen H.
Honestly, I have long felt that the regulation of law couldn’t stand up to a rigorous application of the two part test. I don’t think there is a compelling interest in ensuring competence unless the person makes themselves available for public defender work. Otherwise, I say clients should be able to make their own decisions on quality, just like they do on every other product or service.
Now, I will concede an interest in ensuring ethics. So a test to require you to prove you know the rules of ethics, to earn a license, and a disciplinary process by which people can have it taken away, for ethical lapses, is fine.
But the rule against practice of law is entirely too broad. For instance, is everyone here a lawyer? in theory, anyone discussing the law who is not a lawyer on this site is violating the unauthorized practice statute. But how the hell can we govern ourselves without the right o discuss what our legislature has already done? So rationally no one thinks to enforce the unauthorized practice laws on people commenting on a site like this. But that is exactly backwards for the first amendment. The statute shouldn’t be broad and we depend on prosecutorial discretion; it should be narrow, allowing for very little discretion.
Now that is law. Medicine on the other hand, invokes a compelling interest pretty quickly.
June 10, 2010, 6:47 pmOwen H. says:
A.W.- do you think the same of drug safety? Safety standards in general? Should the market alone be the only protection from harm?
As for our discussions of the law being a violation; frankly, don’t be ridiculous.
June 10, 2010, 7:02 pmTed says:
Generally, the unauthorized practice of law requires advising or representing a specific client. Only if you are advising a client of a particular legal duty or obligation in connection with their specific circumstances, or representing their interests in a legal proceeding or other capacity that has a recognized legal effect are you practicing law.
To be sure, there is a gray area, but bloviating about laws and legal theory is not practicing law. Not even close. If you want gray area, talk about realtors who “represent” their clients in closings and “advise” them in negotiating purchase agreements. That’s gray area.
June 10, 2010, 7:09 pmLymis says:
Weather forecasters, for sure, but this would also put a whole lot of market-reseach and trend-analysis companies out of business.
What is the difference between “People will be wearing green” and “You will meet a tall, dark stranger?”
June 10, 2010, 7:16 pmGuy says:
When you represent a client, you are taking action which legally binds your client, the First amendment does not prevent the state from regulating that, this is like writing a prescription, even though the prescription is “like” advice, it also has legal effects, namely it gives the person the right to purchase the controlled medicine. I understand the argument with respect to advice, but representation is wholly outside of speech.
June 10, 2010, 7:34 pmbbbeard says:
Why has no one mentioned climatologists? Unlike meteorologists, who have a reasonable (i.e. significantly better than chance) record of predicting tomorrow’s weather, climatologists pushing anthropogenic global warming have not been able to predict accurately the changes in the climate since they began climate modeling. It seems like they would be liable under the terms of the statute in question. It seems like “remuneration”, “forecasting”, and “scheming” are all in evidence.
June 10, 2010, 7:39 pmKazinski says:
The State should license Fortune Tellers, and as part of the annual license require them to make a forecast on some well known benchmarks like the Dow, the Kentucky Derby Winner, world Series winner, State of Miss America Winner etc. And then post the results for all the Fortune Tellers on a state website, and require the Fortune Tellers to post their accuracy percentage in a prominent place near the entrance to their place of business.
Not very libertarian, but that would be a pretty modest barrier to entry, especially if the license fee was set just low enough to administer the test. You wouldn’t even have to verify who made the forecast, what are they going to do, bring in a ringer?
June 10, 2010, 8:08 pmOwen H. says:
Are you ok with doing the same regarding religious leaders?
Besides, how do you test the accuracy of a prediction that “X” might happen, when that knowledge allows people to take actions to prevent it from happening? So then, if it doesn’t happen, was it because it wasn’t going to, or because they heeded the warning and changed the outcome?
June 10, 2010, 8:20 pmzuch says:
A string of bad news (the NAS report, the clearing of the East Anglia e-mails, new reports on water temperature, clearing on Mann by PSU, etc.) has left the Denialists undaunted, I see….. Maybe time for another Adler post on AGW, and we can hash out the new stuff, eh?
Cheers,
June 10, 2010, 9:00 pmrhhardin says:
Some pro-astrology thoughts from Douglas Adams and Vicki Hearne link.
Hearne uses it formally against poor biographical lit crit, and Adams disputes its purpose.
June 10, 2010, 9:28 pmChrisTS says:
A. W. says:
We make our own decisions on other products and services? Well, I suppose that my ‘choice’ of FDA approved drugs or licensed doctors is my own decision. However, I am quite happy to have my choices limited by licensing and testing.
June 10, 2010, 11:10 pmChrisTS says:
As IANAL, but only a lowly philosopher of law, can anyone tell me how law typically distinguishes – if at all – between the right of person A to make fraudulent claims and the right of person B to seek out/pay for such claims?
So, in legal phil., we distinguish between impure and pure (or soft and hard) paternalisms. One restricts the freedom of the ‘willing victim’ directly; the other restricts the freedom of others to pander to the desires/weaknesses of the ‘willing victim.’
I am sure that libertarians think both modes of paternalism are wrong. My question is whether most U.S. law treats these differently or as equivalent.
June 10, 2010, 11:19 pmbbbeard says:
“Back off, man. I’m a scientist.”
BBB
June 11, 2010, 12:21 amReaderY says:
In the debate in Michigan in the 1990s before it repealed its fortune-telling statute, one of the arguments raised was that the State of Michigan had never attempted to prosecute an economist.
June 11, 2010, 1:08 amChris Travers says:
Yep, it’s called the “Advertisers’ services department.”
More to the point though, the main data for weather forecasting and the main weather forecasts come from the federal government (the NOAA). So in fact, the weatherman is just reselling the government’s prognostications.
June 11, 2010, 2:05 amChris Travers says:
First, I think this decision is exactly right. However, there is one point that needs to be brought up directly: there are folks who seriously defraud people through fortune-telling. I’m not talking about taking money and offering meaningless advice. I’m talking about taking an escalating amount of money over an extended time period, often draining peoples’ entire life savings. I suspect this is probably actionable under normal fraud laws so perhaps we don’t need new laws to cover this.
The best book I recommend on these scams actually has a how-to section on performing them: “The Satanic Witch” by Anton LeVey. Not only have I read about it, but I’ve seen some businesses in towns where I have lived that were engaging in it.
The basic scam works like this. The fortune teller tells the client that he/she seems some outside influence that is tainting the client’s life. Demons, curses, clouds of negativity, or whatever. The fortune teller then asks whether the individual has had bad luck recently. Well, since everyone has, most people will say yes. The fortune teller then offers to remove the bad luck for a modest fee. This usually works because most people don’t want to be responsible for their lives so they part with a modest amount of money, believing that the fortune teller really wants to help them. That’s when the real money drain begins.
What then happens is the fortune teller comes back, saying that the ritual didn’t work, and that the problem is worse than expected. The fortune teller then asks for more money to try something more powerful. This cycle is then repeated until the client stops paying, and it is surprisingly effective (obtaining tens of thousands of dollars from each mark is not unheard of).
I suspect that even though this law is clearly extremely overbroad, that this is the sort of harm that the law is intended to address by stopping the mechanism of the fraud. However it’s also under-inclusive too. It’s possible to do this scam WITHOUT predicting the future because the scam involves comments about the present and the past. For example, one could set up psychic readings or horary astrology service for finding lost objects and orchestrate the scam that way without violating that particular law…..
June 11, 2010, 2:29 amChris Travers says:
Actually, as I think about it, setting up a psychic service which is not about the future would actually make the scams easier to orchestrate simply because one has a better chance that the individuals coming to the scammer are in a mental state conducive to the scam.
“I can’t find my cat ANYWHERE. I’m so worried about him!” is a great opportunity to say “I sense that your cat is in great danger, but I can’t see where he is because there are great clouds of negativity surrounding you. Those clouds are responsible for this event in your life. I believe I can remove them for a fee of $50.”
The most distraught people I ever offered astrological services to were asking for insight into current problems, not future ones. Note I have never scammed anyone in this manner, and I tend to widely recommend learning about these forms of scams so that folks are better able to recognize them and avoid them.
June 11, 2010, 2:49 amKharn says:
There’ve been weeks I thought he should be held criminally liable for his predictions…
June 11, 2010, 7:02 amBig bill says:
What? No ban on fortunetelling? Then we will have to go back to banning “counterfeit Egyptians”.
June 11, 2010, 7:54 amKatahdin says:
Just to be devil’s advocate, why? If I choose an incompetent medical provider, isn’t the damage limited to me? It’s not like a mechanic fixing brakes, where incompetence could cause harm to others.
(I’m assuming a fanciful world where I pay for my own care, including complications, and excluding the prescribing of antibiotics)
June 11, 2010, 8:30 amSparky says:
The application of the First Amendment to fortune-telling was the basis of a final exam question in my law school First Amendment class.
Shout-out to Prof. Steven Shiffrin (now at Cornell), UCLA, 1982!
June 11, 2010, 10:56 ambbbeard says:
What if the patient is a pilot? And the ailment being treated involves sporadic loss of consciousness — or perhaps a mental illness like bipolar disorder?
What if the patient has a communicable disease that goes untreated because of malpractice?
June 11, 2010, 11:34 amKatahdin says:
I have nothing against the FAA being choosy about who gives flight physicals, but why should it be a crime for the pilot to have his bunions removed by the non-podiatrist of his choice (or is that corns)?
Having a quack miss the Ebola diagnosis would be pretty bad, I’ll admit :-). I’m not sure that a balancing test can lead from that to our current licensing system, though. If I understand the law (always unlikely), it’s legal for a psychiatrist to do an appendectomy, but a crime for a veterinary surgeon to as much as bandage a minor wound on a human. Imagine a small town in Wyoming, where the veterinarian is 100 miles closer than the nearest doctor, and you need a couple of stitches.
June 11, 2010, 12:06 pmTed says:
I read both of your posts. I was with you, until this point. You could have done without this paragraph. It’s difficult for me not to associate “astrological” services with scamming. Unless you mean providing astrological entertainment services.
June 11, 2010, 5:54 pmRandy says:
I would add political pundits who make election predictions. Pollsters, too, and journalists.
June 12, 2010, 12:13 amChris Travers says:
The point of full astrological services in this area is to provide a diagram regarding something relating to the problem at hand. The diagram essentially ends up being a focal point to counselling and other efforts aimed at helping a person come to a better understanding of a problem. You may think it’s a scam. I think there is insight to be gained through the methods. However my interpretation of astrological charts is anything but in line with modern astrological practice.
There are two ways you could look at it: The first (materialist viewpoint) is that a chart may become a focal point for bringing out what everyone already knows but is not ready to talk about. The second (which I hold) is that a chart really does correspond to the object of the chart, but only in a rather abstract way. Therefore a chart is not, by itself, enough to make a definitive determination about anything, but it is something which can shed light on dynamics of a situation or of one’s life.
For example, I’ve read a lot of charts, and those where a planet interacts with a fixed star called “Caput Algol” (very rare, I’ve seen it maybe half a dozen times) tend to have psychological or neurological problems, sometimes due to major trauma in life (one woman whose chart I had read with this structure in it had been gang-raped as a young woman). Indeed fixed star assessments have proven more reliable to me than anything else.
There are a couple interesting books I’d recommend however to put this discussion into a larger perspective:
Plato’s dialog “Timaeus” contains in it the most interesting discussion of astrology and how it works I’ve ever read. He basically held with essentially a “synchronized clock theory.” For a more modern analogy, the clock strikes twelve and you are hungry not because the clock compels or impels but because a similar cycle inside you has reached a point where it’s time to eat lunch. You can, of course, change this to a remarkable extent and, for example, eat lunch at 11:30 or 1:30. However, as with Plato, I tend to hold that these correspondences are only abstract in nature and we can choose how tendencies manifest. Someday I’ll write a book on how I practice astrology to join my book on Runic studies.
In this interpretation of astrology, it’s fairly clearly a spiritual matter. Sometimes I do make predictions but they are again fairly general.
Things like “This year, you are probably going to find yourself feeling frustrated with work and with no good outlet for your frustrations. However, this will change towards the end of the year, and you will either find yourself changing jobs to something better, or your environment will otherwise significantly change to provide constructive outlets. Within six months after that, you can expect sudden, major changes in your family life as well and these will be helpful in restoring balance to your life.”
I also won’t forget the time I told a Chinese man “Looks like you experienced some very major and sudden changes around the time of mid-1989″ to which he replied “I was a protester at Tienanmen Square. That changed everything for me.”
A second work I’d recommend is the Mathesis of Firmicus Maternus. What’s significant about this work is that besides being a handbook of 4th century astrology, is also a defence of the subject against the same objections raised today. My how little has changed in 16 centuries.
I don’t think that astrology can predict actions or events with great precision. IME, it can show abstract tendencies which will manifest in some way but to a large extent we can control how that manifestation occurs.
You might find all manner of spiritual services to be scams. That’s your choice. However, I was discussing something which is uncontroversially a scam regardless whether you accept the underlying practice as potentially spiritually valid.
June 12, 2010, 1:18 amRudy says:
Edward Amourgis, Esq. Counsel for Nefedro,the self proclaimed gypsy, explained the legal case by imposing a philosophical paradign: Can you defend that cutting the roots is not cutting the tree if in doing so you commit an offense? How far would literature and flow of ideas go if you prohibit payment or a fee to be paid for one one who engages in Free Speech? Who is the arbiter of Free speech? The State or the world of ideas. That is what this case was all about. After all the County did not prohibit fortune telling but only the payment for it.
June 12, 2010, 8:10 amDjDiverDan says:
That is simply false – you are free to discuss the law, argue the law, even give away advice on the law, all without a license to practice. What “unauthorized practice of law” statutes address is offering legal advice or legal services in exchange for remuneration. Non-lawyers posting random thoughts, or even reasoned analysis, regarding statutes, legal cases, etc., on the internet cannot run afoul of any unauthorized practice of law statutes. Now if a non-lawyer sets up a commercial website offering to prepare wills and trusts, or prepare pleadings for divorces, bankruptcies, probate, etc. in exchange for payment, that may well run afoul of unauthorized practice statutes. Indeed, even though I am licensed to practice law in Texas, I might find myself in trouble if I just opened up a law office in Michigan or Wisconsin without getting admitted to practyice in those states.
June 12, 2010, 8:48 amJohn David Galt says:
California’s Supreme Court reached the same conclusion years ago, but classed fortune telling as a form of religious belief. Which I suppose it is.
Which raises the question, is it possible to get away with lying/fraud on any topic merely by calling your advice business a “religious” institution? Or is government entitled to inquire into the sincerity of claimed religious belief?
(From what I’ve seen, the practical answer is that government may inquire, but never will unless the “religion” is new enough to lack any political pull. Thus there will probably never be a successful prosecution of Scientology no matter how much harm it does.)
June 13, 2010, 12:16 amReaderY says:
Even if one takes the position that fortune-telling is not protected by Free Speech, one could easily reach the view that it can’t be prohibited when done as part of a religious practice. After all, prophesy is as much a traditional religious practice as the sacrifice found protected in Church of Lukumi Bablo Aye v. City of Hialeatha, Fl. And fortune-telling laws make plenty of implicit exceptions for economists, pollsters, pundits, policy wonks, intelligence agents, military strategists, diplomats, psychiatrists, business executives and consultants, judges (particularly when sentencing), and a host of other people whose mainstream job involves trying to predict the future. Why not make an exception for religion?
June 13, 2010, 2:37 amReaderY says:
Not to mention lawyers giving legal advice based on predictions of how judges and juries will respond to an issue.
Fortune telling. And not very accurate fortune telling, either.
June 13, 2010, 2:39 amChris Travers says:
Can we require lawyers to post statistics on how frequently their legal predictions turn out to be inaccurate? Maybe we can even disbar those who lose more than half their cases in a five-year period?
June 13, 2010, 11:33 pmRudy says:
People and some of your readers who leave sarcastic replies do not realize that by rediculing somebody else’s rights, they better watch it because there would be none left when a time comes ro defend their own “rights”. A freedom of expression or the freedom of a listener are so fundamental that without it the right to think would be eradicated. What is interesting that the case law was attacked not on religious, custom ethnicity or race grounds but on the freedom of expression.
August 29, 2010, 6:20 pm