The First Amendment Is for Fortune-tellers, Too

Wendy Kaminer

What’s the difference between self-proclaimed psychics who write books predicting future events and self-proclaimed psychics who read palms, tarot cards, or crystal balls? The book-writing psychics are endowed with virtually undisputed First Amendment rights, nationwide. The storefront psychics may or may not enjoy constitutional protection, or any right to prophesy for profit, depending on where they live.

Legislation governing fortune-tellers differs from state to state, and, within states, from city to city. They may be required to obtain licenses, allowed to practice unlicensed, or forbidden to practice at all. In Oklahoma, Wisconsin, Minnesota, and North Carolina, for example, fortune-telling is flatly prohibited by state law. In Arkansas and Mississippi, fortune-telling is regulated by local governments, which are empowered by the state to regulate or “suppress” fortune-telling, along with other businesses deemed unrespect-able, like dance halls and poolrooms. In Louisiana, localities may regulate or “restrict” fortune-tellers. In Massachusetts, they may only practice their profession if they are licensed by a city or town. In California, a state appellate court rightly struck down prohibitions on fortune-telling under the First Amendment, in a 1984 case, but localities may still choose to license it.

Psychics seem to differ in their reaction to licensing requirements. Some want the professional credibility that licensing confers; others simply want to be left alone, or claim that licensing laws discriminate against gypsies. In San Francisco, the Board of Supervisors recently roiled its resident psychics by proposing legislation that would require them to obtain permits and post rates, along with establishing consumer complaint lines. One self-proclaimed “Goddess of Light and Direction,” aka “Dionysia,” complain ed to the San Francisco Examiner that the city was “capitalizing on folks trying to make a living.” But one of Dionysia’s colleagues told the Examiner she supported local regulation of psychics, because the city should “crack down on the people who give us a bad reputation.” Some in fortune-tellers Florida reacted similarly when the county commissioners of Palm Beach decided to allow fortune-tellers to practice unlicensed. One local seer, Madame Rose, warned the commissioners that they would “open Palm Beach to every con artist.” This was apparently not a prophecy but an assumption that licensing schemes can weed out the bad psychics from the good.

Madame Rose’s underlying belief in the existence of good psychics (I imagine she considers herself one) is easy to mock. But while skeptics chortle over the fraudulence of all fortune-telling, civil libertarians bridle at government restrictions on the right of people to indulge their beliefs in psychic power (which are no more or less ridiculous than belief in God). We don’t license preachers or require them to prove they’re not conning us (indeed, these days we offer them public funds). Why should we license psychics? Religious freedom means that seances enjoy the same constitutional protection as the sacraments.

 

Still, the effort to single out only some psychics as frauds is not entirely mis-guided—if you focus on the intent of the psychic, not the truth of his or her assertions. Charlatans are not defined by the falsity of their beliefs but by their insincerity and their intentions to deceive. Categorical bans on fortune-telling are unconstitutional, a California appellate court recognized in Spiritual Psychic Science Church v. Azusa. But, the court added, “We would confront a very different question if this ordinance were limited to persons who fraudulently claimed to possess powers of precognition they knew they did not have and who knowingly took advantage of those who erroneously believed they did.” Advocates of regulating fortune-tellers and other psychics claim they only want to protect gullible people from the con artists Madame Rose of Palm Beach may have had in mind—psychics who intend to defraud, by offering to take your money and “cleanse” it of some curse or by promising that ridding yourself of a large sum will help you lose weight or gain romance and whatever else you desire.

It’s hard to know if licensing schemes are effective in deterring intentional scams. It might be better simply to prosecute individual instances of fraud when they occur (and the victims are willing to report them). Focusing on the criminal conduct of particular fortune-tellers and not the practice of fortune-telling in general respects the right to believe, which includes a right to be deceived. Politicians who believe in God (and virtually all say they do) shouldn’t presume to protect their constituents from illusions.


Wendy Kaminer is a lawyer and social critic. Her latest book is Free for ALL: Defending Liberty in America Today.

Wendy Kaminer

Wendy Kaminer is a lawyer and social critic. Her latest book is Worst Instincts: Cowardice, Conformity, and the ACLU (Beacon Press, 2009).