Legal Commentary

Maryland?s Highest Court Holds That Fortune-Telling Ban Violates the First Amendment

By Eugene Volokh

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.)

Full post as published by The Volokh Conspiracy on June 10, 2010 (boomark / email).