I recall writing a couple years ago, probably at the old blog, about a Virginia county that required a license to be a fortune teller there. My concern was that licensing gives a stamp of credibility to the practice, but the law was challenged as unconstitutional under the First Amendment. The 4th Circuit Court of Appeals just upheld the law.
The Chesterfield County ordinance defines a fortuneteller as “any person or establishment engaged in the occupation of occult sciences, including a fortune-teller, palmist, astrologist, numerologist, clairvoyant, craniologist, phrenologist, card reader, spiritual reader, tea leaf reader, prophet, psychic or advisor or who in any other manner claims or pretends to tell fortunes or claims or pretends to disclose mental faculties of individuals for any form of compensation.”
The county requires any person operating such a business to get a license from the chief of police, which may be granted after a background check. Anyone convicted of a felony in the last ten years is denied such a permit. There is also a $300 fee for the license, and zoning restrictions on where such businesses can locate.
Patricia Moore-King challenged those restrictions in federal court. The ruling details how Moore-King describes herself and it’s rather amusing. She says on her website, “I am very spiritual in nature, yet I do not follow particular religions or practices, and ‘organized’ anything’s [sic] are not for me. I pretty much go with my inner flow, and that seems to work best.” She also offers this list of her interests:
Spirituality, astrology, Reiki, natural healing, meditation, mind-body-soul-spirit-chakra study, metaphysics in general, new age philosophy, psychology, human behavior, quantum physics, ancient history, philosophy, Kabala/Kabbalah, writing, jewelry making, reading (Manly P. Hall, Madame P. Blavatsky, Alice Bailey, and James Hillman are of special appeal), music, music, music!, and creativity in all forms are passions and interests of mine.
The district court granted summary judgment for the county, ruling that the licensing requirements are merely “de minimis regulation of her business . . . common to all businesses in Virginia and, most likely, in the entire nation.” The court also ruled, perhaps more problematically, that Moore-King’s work was “quintessential deception” and therefore “not entitled to any First Amendment protection.”That last part is troublesome. What she does is clearly deception, but that is true of all religious practices and it is not up to the government to decide which religious beliefs or practices are true or false; if that were the case, the First Amendment religion clauses would be rendered all but null and void. There is the further problem that if the county’s position is that fortunetelling is inherently deceptive, then why grant a license to do it? You are only supporting its legitimacy by doing so. The appeals court didn’t seem to like this argument much:
If, as the County contended at oral argument, all predictive speech were inherently deceptive, most religious prophesy, financial prognostication, and medical diagnosis would fall outside the scope of constitutional protection. The reality that much professional intercourse depends on predictions about what the future may bring suggests that categorical branding of fortune telling as unworthy of First Amendment protection for that same reason is untenable.
The County cannot establish either premise of its argument that fortune telling is inherently deceptive speech outside the scope of the First Amendment. Consequentially, we conclude that the First Amendment Free Speech Clause affords some degree of protection to Moore-King’s activities.
I think this is exactly right. The court then upholds the licensing restrictions, and again I think this is the constitutionally correct thing to do. Being protected by the First Amendment does not mean that there can be no restrictions at all on the time, place or manner in which those rights are exercised. And the regulations in this case are generally applicable to all businesses and quite routine. So overall, I think the court got it right.
You can read the full ruling here.