Is fortunetelling a matter of the First Amendment?
From today’s Washington Post comes the story of a “self described Gypsy” who is challenging a ban on fortunetelling businesses in Montgomery County, Maryland.
Nick Nefedro didn’t need to have his palm read or look to Tarot cards to know that his plan to work as a fortuneteller in Bethesda would fail. His fate was already written: Montgomery County says it is illegal to make money from forecasting the future.
But Nefedro, who says he is a Gypsy, is determined to change that. He has enlisted the American Civil Liberties Union in his year-long fight to overturn the law that calls his livelihood fraudulent. He argues that fortunetelling is part of his heritage and that prohibiting him from working as a fortuneteller amounts to discrimination.
Mr. Nefedro characterizes the Montgomery County ban as “persecution against Gypsies,” which he ties into the historic persecution that the people commonly called Gypsies (also known as the Romani) have suffered across Eastern and Central Europe. He points out that Romani were often regarded to be thieves and con artists wherever they traveled. And he argues that this ban inhibits his rights under the First Amendment.
Does the ban against fortunetelling businesses in Montgomery County inhibit Mr. Nefedro’s freedom of speech and religion? Or is this a different issue because he wants to make this practice into a business and charge people money for it? After all, it is not the fortunetelling itself but rather the practice of charging for it that is banned. Mr. Nefedro is fighting for his right to run a business rather than the basic right to practice his religious beliefs at all.
Indeed, it seems that, to a certain extent, his status as a religious practitioner is entirely wrapped up with his status as a business proprietor:
Like his father, who had been a fortuneteller in the District [of Columbia] in the 1980s, Nefedro turned the practice into a business. With family members, he has owned and operated a half-dozen fortunetelling businesses in the Los Angeles area and in Key West, Fla.
But he wanted to move closer to home. Born in the District, he spent much of his youth with friends and family in Bethesda.
It’s understandable that he wanted to return home and open a business. But, leaving aside the obviously cynical answer to this question for the moment, can a for-profit business be a protected religious practice as well? And should Montgomery County have the right to ban businesses of this nature if the goal is to protect consumers from fraud?
The ACLU of Maryland argues that prohibitions against fraud are enough, without the additional blanket prohibition against fortunetelling businesses, and that even if Mr. Nefedro’s speech is mainly commercial in nature, it should still be protected. From the ACLU of Maryland’s press release on the case, discussing their role in helping him appeal the original ruling against him by the circuit court:
Contrary to the ruling of the Circuit Court in this case, courts across the country have consistently held that fortunetelling is protected speech, and restrictions on it, like the Montgomery County law, are equivalent to absolute bans and therefore unconstitutional. In addition, the Supreme Court has held repeatedly that merely because speech is for profit does not reduce the level of protection it is due.
In defending the law in the Circuit Court, the County argued that it is a legitimate exercise of police power, aimed at preventing fraud. While the interest in preventing fraud is legitimate, the County already has a law accomplishing that goal. A separate provision of the County Code prohibits persons from intending to or engaging in fraud in any consumer transaction. Accordingly, the ban’s only effect is to prevent individuals from engaging in constitutionally protected activity.
In other words, since the county already bans fraud, then why ban fortunetelling? Any fraud that he may commit during the course of operating his business would already be illegal. But, the ACLU argues, a broad ban on fortunetelling only serves to prohibit government protected speech.
I’ve never gone to a fortuneteller, and I don’t think that I’m alone in my suspicion that many of them are trying to scam people. However, Mr. Nefedro insists that he can see the future, and he may very well believe that he truly can. There is no way to judge the sincerity of this belief; we’ll have to take it at face value. Rather, to me the appropriate questions to ask are: does he have a First Amendment right to operate a for-profit business based on his religious beliefs? And is for-profit fortunetelling a form of protected speech? Or should local governments be empowered to protect consumers against the fraud perceived to be inherent in such businesses?
What do you think?
I think it is quite simple, really.
If Mr Nefedro claims that he can predict the future, and this prediction is the product that he is selling, then in order to operate all he needs do is provide evidence that his product is not fraudulent and he ought to be free to operate. (This assumes that the anti-fortunetelling law is repealed as being redundant with the current anti-fraud laws).
And as a bonus for Mr Nefedro, demonstrating his ability to predict the future can also win him a million dollars from the JREF’s challenge.
“…does he have a First Amendment right to operate a for-profit business based on his religious beliefs?
Yes! Absolutely. Tele-evangelists do it all the time.
And is for-profit fortunetelling a form of protected speech?
Yes! Absolutely.
Or should local governments be empowered to protect consumers against the fraud perceived to be inherent in such businesses?
No! The fact is there is no harm in allowing someone to spend his or her money by trying to peer into the future. Many people, including Humanists, do it rather frequently. Is there really much of a difference between a fortune teller and say a stockbroker? Both try to predict the future. I’d say the only difference is that the stockbroker doesn’t claim special, supernatural powers.
Fraud is when you demonstratively and deliberately lie to a customer or misrepresent ypur product or service. Good “fortune tellers” will be sure to make their “predictions” are vague enough that it will be impossible to prove fraud. Under consumer protection laws it would be the government’s job to prove Mr Nefedro’s predictions are fraudulent and not the other way around as David G suggests.
Yes, he has a right to offer a for-profit business based on his religious beliefs. Televangelists do the exact same thing…the only difference between these two examples is that one is more widely considered to be “fraudulent” than the other. They both stem from the same belief in a supernatural power. The public, fortunately, has the freedom to choose where they want to spend their money & if these people want to make a business out of the public’s religious beliefs…why shouldn’t they be able to do that? The freedom that protects evangelists is the same freedom that should protect faith healers, fortune tellers, etc. I find the egotistical mainstream religious perspective that simultaneously condones & supports televangelism while condemning other religious for-profit practices as “fraudulent” quite hypocritical.
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Yes!
I don’t see the sense in banning fortune-telling, really. Personally, I think it’s a ridiculous superstition but really the point is, what harm do we expect it to cause? At worst, somebody might pay money to find out what they think is an honest-to-God omniscient vision of their future, and then act on it, and find out the vision was wrong.
So, say I pay him 25 bucks and lose 25 bucks on a bad bet (backed by his fortune-telling). I go to court, say, “This guy promised me such-and-such would happen, and it didn’t, and as a result I lost $50.” One of three things will happen:
1. The judge will find that the prediction didn’t say what I thought, and I just assumed (wrongly) that it meant such-and-such. My bad, I deserve to lose my money for being an idiot.
2. The judge will find that the fortune-teller doesn’t actually advertise that his predictions are correct (say his ad says, “These predictions are for entertainment only, etc.”). Again, my bad, I’ll be smarter next time.
3. The judge finds that he promised his predictions were true, he predicted something, and it didn’t happen. In that case he will almost certainly lose the case based on existing fraud laws. I get my money, I’m happy.
All of the above outcomes are just and fair; none of them have anything to do with a law against fortune-telling; and best of all, none of them take any position on whether fortune-telling works or not. So what’s the point of the law, except to say “fortune-tellers and their clients are superstitious idiots,” which everybody already knows?
I should add that the point of the law, really, is probably to ban something that makes the local Christians angry…
John K – that’s a great point that I had not thought about.
Many years ago one of my first jobs was with an answering service, and one of the clients was a fortuneteller. The messages we had to take for this person were painful and an endurance test for human compassion. Many clients were people seriously ill or with serious family problems, desperate for help and willing to believe anything! The main reason I found another job was to avoid having to deal with the human tragedy pandered to and preyed upon by this fortuneteller.
There is a huge market for vultures ready to prey on human suffering and weaknesses in our society. I’m not in favor of anything that supports preying on the most vulnerable in our society.
Victoria’s post misses the point. We all know that fortunetelling is a scam. But nobody holds a loaded gun to their backs to force reluctant customers to walk in the door with money in hand.
Face the reality: the ban on fortunetelling is a racist measure targeted at a powerless minority, the Romani.
If the Jews and Muslims of Montgomery County slash healthy tissue from the sensitive genitals of baby boys without their consent, oh THAT is just their religious freedom, covenant with G-d, FAITH is so WONDERFUL, they HONOR GOD’S HAWLY WEHRD, ain’t it BEAUTIFUL, blah blah, you mustn’t criticize FAITH, it would be antiSemitic and RACIST, blah, blah blah.
The Romani and THEIR superstitions are singled out for attack because they are a miniscule and relatively defenseless group.
Roman Catholics can teach that the consecrated bread really, really became the Body of Christ and the wine became his blood – oh wow what a MIRACLE – and oh no, we must not interfere in THAT scam. But let the Romani of Montgomery County claim supernatural insights and it’s CRUCIFY THEM, CRUCIFY THEM, they are sinners, heretics, criminals.
Then L. Ron Hubbard can take all your money in return for convincing you that the evil XEMU created Earth ninety million years ago – and get away with it. Scientology takes your twenty thousand dollars, the fortune teller takes one hundred dollars – so let’s go after the Romani!?!? How much sense does that make?
The Holocaust was a dreadful historical event – yet mnay Jews survived. How may Romani walked out of Auschwitz alive? Lay off them. Go after the scammers whose superstitions actually damage people’s lives without their consent.
Freedom of Speech is too valuable to chip away bits, even if the intent is good. Too bad they can’t create some type of James Randi law (a “Prove It” legislation). Maybe force them to hang a large “For Entertainment Purposes Only” sign at their entrances.
“Too bad they can
I don’t see a whole lot of difference between this (fortunetelling) and legalized, regulated gambling. Every lottery ticket sold, in Oregon anyway, has a disclaimer: “… for entertainment only… should not be played for investment purposes.”
Soothsayers, fortunetellers, etc. should possibly be required to have such a sign prominently displayed announcing that the activity is solely for enternainment and should not be considered sound advice for future conduct.
Besides, if the fortunteller’s advice is so vague as to be exempt from fraud laws it should also be too vague for his clients to determine a course of action from it.
“Besides, if the fortunteller
The same disclaimer should be printed on any church publication.
As long as we’re banning fraudulant practices…….. shouldn’t all forms of religion be banned????????????
I think this law should definitely be overturned. Churches are a for-profit business, even though they claim non-profit & tax-exempt status. This is clearly a case of Christians oppressing those who do not accept their beliefs & trying to legislate their biblical laws.
He could accept recommended donations (or maybe he could still charge a fee, not sure about the tax laws regarding this) & apply for church status & avoid paying taxes. Other religious beliefs are protected. …and christians are forever predicting the future (jesus is coming soon, blah blah blah).
I think this law should definitely be overturned. Churches are a for-profit business, even though they claim non-profit & tax-exempt status. This is clearly a case of Christians oppressing those who do not accept their beliefs & trying to legislate their biblical laws.
He could accept recommended donations (or maybe he could still charge a fee, not sure about the tax laws regarding this) & apply for church status & avoid paying taxes. Other religious beliefs are protected. …and christians are forever predicting the future (jesus is coming soon, blah blah blah).
Besides, I want Christian churches (all religious institutions) to attempt to PROVE that they are not committing fraud & robbing hundreds of millions of people a year as well.