Otherworldly Communications are Protected Speech

Otherworldly Communications are Protected Speech July 14, 2012

Ordinances against fortune telling have a long history, from bans on sorcery and witchcraft in the Middle Ages and Early Modern Europe, embodied today in places like Saudi Arabia, to anti-fraud bans (often based in various ethnic prejudices) in the 19th century, to current laws that claim to be protecting citizens from fraud, but are often pushed by conservative Christian lawmakers. For generations those who practiced fortune-telling as a profession existed on the margins of society, usually depicted as mere swindlers preying on the gullible, until a new ethos started to emerge that classified divination as an art. Part of a spiritual and religious tradition that practitioners felt should be respected, and not subject to laws designed to outlaw those engaging in parlor tricks.

In the United States, many anti-fortune-telling laws have been challenged on the grounds of religious freedom, notably Z. Budapest’s very public 1975 battle against a California ordinance. More recently, Wiccans in places like Caspar, Wyoming, and Livingston Parish, Louisiana, succeeded in getting ordinances struck down on this basis. However, a much broader decision was handed down by the  Maryland Court of Appeals in 2010, which ruled that fortune telling and related services are protected speech.

“Fortunetelling may be pure entertainment, it may give individuals some insight into the future or it may be hokum,” the Maryland Court of Appeals wrote in a 24-page opinion. “People who purchase fortunetelling services may or may not believe in its value. Fortunetellers may sometimes deceive their customers. We need not, however, pass judgment on the validity or the value of the speech that fortunetelling entails.”

This was something of a sea change in legal thinking on the issue, and soon challenges to fortune telling ordinances on the basis of free speech started to pop up in places like East Ridge, Tennessee. Advocacy group the First Amendment Center, lays out the constitutional rationale.

“…it’s important to note that most speech — whether it expresses my own impeccable logic or someone else’s silly belief — is protected from government control. Not just permitted. Or allowed. Or tolerated. But protected with the full force and vigor of an amendment to the United States Constitution.”

Now, we have another decision, announced yesterday, that bolsters the divination-as-free-speech line of thinking.

“A federal judge this week ruled that an Alexandria law forbidding fortunetellers from working in the city is a violation of First Amendment free speech rights. U.S. District Judge Dee D. Drell concurred with a recommendation in June by U.S. Magistrate Judge James D. Kirk that said Alexandria’s 2011 ban of Rachel Adams’ shop on Jackson Street Extension was unconstitutional.”

The ThinkProgress blog noted that Alexandria, Louisiana’s law banned “palmistry, card reading, fortune telling and other otherworldly communications,” with the city arguing that  fortune-telling is “a fraud and inherently deceptive.” However, U.S. District Judge Dee D. Drell rejected that, noting that Louisiana has been able to survive and thrive while embracing psychics and fortune-tellers, especially in New Orleans.

As the legal framework for total bans start to crumble, many towns and cities have responded by passing strict regulations on the practice. In 2010 both Time Magazine and the BBC looked at a growing trend of stricter regulations against psychics being enforced by local governments. The creation of these subcultural “red light districts” are often harder to challenge than a total ban, though they often have the same effect. For example, in Chesterfield County, Virginia, zoning regulations for psychics are stricter than they are for strip clubs or pawn shops.

“In Chesterfield, businesses considered to be fortune-telling establishments must pay a $300 tax to get a business license, while nightclubs and adult businesses pay only a $100 tax for a license. Fortune-telling businesses must submit five references from the county to the police chief for approval. They are limited to one zoning designation – the same one reserved for adult businesses, scrap yards and pawn shops. And they must get a conditional-use permit for that zoning.”

Author and renowned tarot expert Mary K. Greer believes her business (reading cards) should be treated like any other business, and not singled out for punitive regulations. Quote: “It has been found that laws prohibiting fraud cover most cases of abuse perfectly adequately and far better than regulations that discriminate unfairly against this particular profession, especially when they assume criminal behavior where none has been shown by the individual. It has been proved over and over again that discriminatory regulations are created by special interest groups and that they are unfair and almost always unconstitutional.”

With yet another fortune-telling ban struck down on the basis of constitutionally protected free speech, regulations that try to zone such businesses out of existence are on increasingly shaky legal ground. The harsher the regulation, the more it seems like the local government is privileging one form of speech over another. It seems clear that whether you pay for it or not, whether you believe in it or not, “otherworldly communications” are protected speech. This is not just a good thing for free speech, but a good thing for the Pagans and esoteric practitioners who supplement their income by performing divination.

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32 responses to “Otherworldly Communications are Protected Speech”

  1. I predict that this wise interpretation of the First Amendment will protect a wide spectrum of religious and secular speech.

  2. Excellent article as always.   However:

    “This is not a good thing for free speech, but a good thing for the Pagans and esoteric practitioners who supplement their income by performing divination.”
    Did you leave out a “just”?

  3. Increasingly shaky ground indeed. They can get away with zoning adult entertainment because, if it’s considered speech, it arguably is in the umbra of the obscenity exception to the First Amendment (itself a questionable doctrine). But this decision, if upheld, puts fortune telling into a category with public lectures and political speech, not as easily trifled with.

    It’s delightful that the judge used New Orleans as an example. Kudos to Jefferson for folding a bit of New France into the mix.

  4. How is this any different then say, alternative health and healing? Some say that things like acupuncture is nothing more them new age bunk.

  5. First, Patheos’ habit of forcing me to see an ad for the act of starting to leave a comment is not something I appreciate. To be polite.

    Second, to address this article, I got a look at Selma, CA’s recently passed regulations on fortune tellers. Their zoning laws were so detailed, I think they were directly derived from the rules governing where registered sex offenders are allowed to live. Except sex offenders are allowed within 1000 feet of a church. It’s just ludicrous.

  6. The Selma law sounds ripe for a challenge. California is not bound by a court in Louisiana but the more challenges, the likelier it rises to the US Supreme Court.

  7. At its worst, fortune telling and other forms of divination are  the craft of charlatans, telling people what they think they want to hear. Which is no different to the stage magics of David Copperfield and co. As such, truth is not as important as entertainment.

    At its best, fortune telling and other forms of divination are the craft of the religious, practising their faith in the manner they feel appropriate. This is covered under the freedom of religion bit, is it not?

    Either way, I can see no justification for the prohibition of it.

  8. From what I understand, acupuncture is actually having rigorous research done on it, and some positive results are being recorded.  Just having a look through Google Scholar on acupuncture, as well as alternative health and healing modalities, shows that there is more nuance in the medical community than sheer opposition.

  9.  On the other hand, homoeopathy constantly gets derided by the medical community.

  10. Wait a minute, wait a minute, wait a minute- do you think this issue could rise to the Supreme Court? Cause I would LOVE to see Antonin Scalia ponder whether Tarot reading and Otherworldly Communications constitute Free Speech.

  11. For the record: I am a hard-core acupuncture fan; been seeking it out for years; and am totally sold on it as an effective health-maintanence system. Based upon 2000 years of Chinese practice (or roughly since the Age of the Roman Empire), acupuncture addresses the Ch’i, or Bodily Energies. Right off there, should be enough premise to engage the Pagan Practitioner, seeing as we are so into Body-Energies. Myself, I identify Ch’i as the Magickal Life-Force- therefore, experiments with acupuncture constitute experiments with the Magickal Life-Force of Ch’i: or the Thing that we Pagans are so into, as Magick-Workers. 

  12. Thank the Gods for the first amendment. The so called “Otherworldly” communications are also done through divination, which in our various religions is used to communicate with our Gods. So trying to ban it would be persecuting our religious freedom. I would also like to add that there is a very successful Wiccan coven in my state of North Carolina called Oldenwilde. They fought North Carolina’s old law against fortune telling and got it overturned. If certain people can preach hate and intolerance freely, then we can bring back messages of love and wisdom from the spiritual realms freely. For the record, my wife and I NEVER charge for divination or any kind of religious prophetic readings. Not a thin cent. We also do not charge people any money to be part of our religious organization. 

  13. The unfortunate truth is that there are scam artists out there who will gladly tell someone what they want to hear for a fee. Still, that seems no different than any other performing art and should probably be permitted in the same manner. I’m glad to see the tide turning against a history of prejudice. Thanks for a bit of positive news.

  14. True that.  I think that it is fine, and a good thing that medical effectiveness is checked by the medical community.

  15. With the makeup of the Supreme Court such as it is, while intellectually I’m sure it would be fun to watch, the potential results I’m iffy on.

  16. They’ve been good on minor religions when the rule they’re fighting is blatantly targeted, which this clearly is.

  17. acupuncture addresses the Ch’i, or Bodily Energies. Right off there, should be enough premise to engage the Pagan Practitioner, seeing as we are so into Body-Energies. Myself, I identify Ch’i as the Magickal Life-Force- therefore, experiments with acupuncture constitute experiments with the Magickal Life-Force of Ch’i: or the Thing that we Pagans are so into, as Magick-Workers. ”

    Right there someone will say that has no validity in it (Not saying I don’t think it  doesn’t have validity)
    Maybe that was a bad example. Perhaps maybe I should have said faith healing or something along those lines.
    My point is just because someone doesn’t believe in tarot or divination. Doesn’t give one the right to decide if someone else should pay to have it done. It’s a choice.

  18. The fact that each acupuncture/acupressure point has a tiny nerve bundle has far more value from a scientific viewpoint.  

    This article has a bit of a quick overview on it:

  19. Well, yes, that is the foundation for acupuncture/ acupressure that has validity and effectiveness, from the view-point of Western Science. The thing is, acupuncture (pressure), while a Science from the view-point of its Eastern originators and practitioners, is an Eastern concept that has no real correlation in Western Culture (which doesn’t recognize Ch’i). Illness is caused by blockages in Ch’i; acupuncture (acting upon the nerve-bundles located in each pressure-point), releases the Ch’i, promoting free Ch’i-flow. Since Ch’i is the Thing that gives Life to organisms, the premise of acupuncture is pretty removed from anything that Western Culture has going on. I think it’s a little unfair that Western Culture demands that Eastern Culture practices “prove” themselves in Western Culture terms.   

  20. I’ll still generally take my chances with the germ theory of disease, given the choice.

    And I wasn’t saying that Eastern concepts needed to prove themselves to anyone, but having a foundational understanding of why things work is much better than simply accepting them.

  21. In replay to Eran Rathan, the germ theory of disease and the chi blockage theory of disease are not mutually exclusive. 

  22.  I don’t know, you could probably say that Mana is the Anglo Saxon equivalent of Chi.

  23. Now THAT was smart.  I’d been expecting divination laws to be challenged under the first amendment’s religion clause… using the protected speech clause was inspired!

  24. I’m surprised no one has brought this up but it is hypocritical at least for fundementalists to rail against fortune telling when they believe with all their being that their sacred book  tells the future and they believe in all there “prophets”. And considering the popes revived interest in exorcism does anyone see the problem here? It’s okay for the Abrahamic faiths to hang on every word of there supposed prophets and communicate with demons, but for anyone else they are either a fraud or a heretic. Same old song. 

  25. In reply to Léoht: the word “mana” doesn’t appear in Anglo-Saxon dictionaries, although I do think, along with Bates and Chaney, that such a concept existed. We Théodish folks tend to use the Anglo-Saxon term “mægen” (pronounced roughly MAY-en) and its cognates for that concept. It means literally: “MAIN, might, strength, force, power, vigour, efficacy, virtue, faculty, ability” (from Bosworth-Toller’s Anglo-Saxon dictionary).