I’m not going to waste your time or mine with digging into legal precedent or preparing a proper scholarly paper on this one. Instead, we’re going to just briefly look at the facts of the matter and then I’ll tell you what I think (and hence what you should think) about all this.
The back-story in brief: The city of Alexandria, Louisiana passed an ordinance banning fortunetelling, palm reading, astrology, and similar activities within their city. Good for them--sticking it to the frauds, right? Well, in 2011, Rachel Adams, a fortune-teller who claims she accepts donations but does not charge for her “services”--and we all know that’s just a ploy--sued after receiving a summons for violating the ordinance which carries daily penalties of up to $500.
U.S. Magistrate James Kirk (I really couldn’t make this shit up if I tried) wrote a report and recommendation arguing that despite the city’s arguments that the business of fortunetelling is a fraud, it is nonetheless free speech protected under the First Amendment.
On Wednesday, U.S. District Judge Dee D. Drell (really can’t make this shit up), in agreement with Magistrate Kirk’s recommendation, declared the ordinance unconstitutional.
This is the matter on the table for discussion. You all know that I’m a very vocal supporter of free speech and the First Amendment, and that I’m an extremely vocal opponent of fortunetelling and the various other frauds committed under the guise of some sort of supernatural power. That’s what makes this one interesting. We’ve seen how the judge ruled on the matter, but was he right?
Let us first consider the First Amendment. Is it absolute? No. But neither is it or should it be lightly limited. It extends to actions beyond just speech and press, as it rightly should, to protect free expression in general, as is exemplified in the Supreme Court decision Texas v. Johnston, in which the Court ruled that flag burning is an act of free expression protected by the First Amendment. They were correct.
But we also know it’s not absolute. There are, of course, the old clichés that “your rights end where mine begin” and “you can’t yell fire in a crowded theatre.” Generally, they’re trotted out by people who are trying to limit free speech beyond the actually reasonable limitations that the clichés would provide. These reasonable limitations include, in the first case, making false defamatory statements (and even that is sometimes protected, depending upon circumstances--there’s a body of case law that I’m not even going to begin to discuss), or in the second case, endangering life and limb or inciting a riot by fraudulently claiming that there’s a fire when there is not. It is clear that speech that people simply find annoying is protected, and that speech which actually damages others is not.
These are common sense restrictions, and they’re generally reinforced by the courts who seem to only occasionally break away from what one might consider a “sane” interpretation of First Amendment law.
The other matter worthy of consideration is that of fraud. Clearly fraud is illegal. It is prosecuted in all fifty states. If I go downtown and pull off a Pigeon Drop, I’m going to be prosecuted for that. Theft by any other name is still theft. And though we may have a certain admiration for the cleverness with which these crimes are committed (as opposed to simply mugging someone), we’re all in agreement that they are still crimes and should be treated as such.
So where does that leave us with this case? Does that mean the judge was right or wrong. It’s a difficult question, but I lean to the side that says he was wrong, but that answer is conditioned on several things.
First, lying to someone--and don’t delude yourself into thinking psychics and fortunetellers are doing anything different--is perfectly fine and protected as long as it neither harms someone by defaming their character nor costs someone money under false pretenses. I’m a magician--I lie to people all the time, and yeah, I get paid for it. But I don’t do so under false pretenses. They know they’re going to be lied to, and that’s exactly what they’re paying for. They want a form of entertainment that serves as an escape from the truths of reality, and that’s exactly what they buy from me.
When it comes to psychics, this is not necessarily the case. Sure, plenty of people with a fortunetelling booth might just do it for the fun. Perhaps they even tell their customers that it’s for entertainment purposes only (because we all know they’ll take that disclaimer seriously) as many cities across America require. But the fact of the matter is, there is a large percentage of the population who, for whatever reason, believe in psychics, and take it very seriously. These people pay out the wazoo, and all they get in return is a lie packaged up as supernatural wisdom. This is fraud, plain and simple.
There’s a fine line to be drawn here. For instance, I absolutely loathe the newspaper horoscopes I see whenever I pick up a print edition of one of my favorite publications. But is that really fraud, in the way that the law sees fraud? No. No one pays for that directly, and as long as it does not individually defame anyone’s character, it’s perfectly protected by the First Amendment. We’ll just have to get people to be smarter about it in order to get rid of those.
Is it fraud if someone holds a Houdini séance on Halloween? Again, probably not, depending upon circumstances. Generally, these are theatrical productions that, whether or not they come right out and say so, everyone understands to be nothing more than entertainment. It’s become something of a tradition, and even skeptics participate.
What about someone who claims to be the real deal, and sets up a shop somewhere, but doesn’t charge for any services? Little more of a gray area, but still legal. If no money changes hands, there’s no fraud. If they do charge for their services, on the other hand, that IS fraud. That SHOULD be illegal. It’s not prosecuted nearly often enough (probably because politically minded prosecutors don’t want to alienate the believing community), but there’s no way around the simple truth that we should be prosecuting it.
Now, here’s the gray area in which this case so uncomfortably resides. What if the psychic doesn’t technically charge for her services, but accepts donations or sells books? We all know what’s really going on here, don’t we? It’s a clever way around trade laws. By not actually charging for the service in question, they can argue that there’s no fraud, but by accepting donations, they’re able to keep raking in the money because they know damn well plenty of people will pay.
So do I agree with the judge? Maybe. I think that, in this particular case, he might have been right, but I think he may have been wrong to throw out the law entirely. If it is true that Adams never charged for her services, she’s probably in the clear--though if there was any sort of coercion such as claiming the spirits will only help if the victims pay, it’s another matter. However, a law on the books to prosecute those who do charge should easily pass constitutional muster and should be allowed to stand.
Make no mistake: this is a difficult issue, and the answers aren’t always easy to come by. Clearly, we need stronger legal protections against the frauds masquerading as psychics. But on the other hand, with First Amendment considerations to contend with, I must make the recommendation that I seem to always make about almost every issue: the real answer is education. While legal protections would be a great benefit, we’ll never actually get rid of the psychic menace until we have a scientifically literate populace, well educated in methods of critical thinking. When that day arrives, we won’t need to split hairs over constitutional issues, as the psychics will all just go out of business without any legal prodding.