Nick NEFEDRO v. MONTGOMERY COUNTY, Maryland, et al.
No. 84, Sept. Term, 2009.
Court of Appeals of Maryland.
June 10, 2010.
996 A.2d 850
Ajmel Quereshi (Deborah A. Jeon, ACLU of Maryland Foundation of Baltimore, MD), on brief, for appellant.
Clifford L. Royalty, Chief, Division of Zoning, Land Use & Economic Development (Leon Rodriguez, County Atty., Marc P. Hansen, Deputy County Atty., and Edward B. Lattner, Chief, Division of Human Resources & Appeal, of Rockville, MD), on brief, for appellees.
Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, ADKINS and BARBERA, JJ.
The petitioner in this case, Nick Nefedro, wishes to open a fortunetelling business in Montgomery County. Montgomery County, however, has an ordinance (“the Fortunetelling Ordinance“) that prohibits the acceptance of remuneration for fortunetelling. Nefedro has asked us to determine whether the Fortunetelling Ordinance violates his right to freedom of speech under the First Amendment to the United States Constitution and Article 40 of the Maryland Declaration of Rights. Montgomery County argues that the Ordinance does not implicate those constitutional provisions or, in the alternative, that it is consistent with the federal and state constitutions. After reviewing the facts of the case and the relevant sources of law, we shall agree with Nefedro.
PROCEDURAL HISTORY
This case arose in the Circuit Court for Montgomery County. On May 28, 2008, Nefedro filed suit against the County and Isiah Leggett, the County Executive for Montgomery County (collectively, “the County“). In his complaint, Nefedro challenged the Fortunetelling Ordinance on the grounds that it violates the First Amendment and Article 40 of the Maryland Declaration of Rights. The parties filed cross-motions for summary judgment, as well as oppositions and replies to those motions. On December 11, 2008, the trial court granted summary judgment in favor of the County, concluding that the Fortunetelling Ordinance is constitutional. Nefedro noted a timely appeal to the Court of Special Appeals. Before the intermediate appellate court had an opportunity to hear arguments in the case, we issued a writ of certiorari on our own motion. Nefedro v. Montgomery County, 410 Md. 165, 978 A.2d 245 (2009).
FACTS
The following facts are not in dispute. Nefedro is engaged in the fortunetelling business in several locations across the country. In this business, he charges customers a fee in
There is some dispute about what Nefedro has done in furtherance of his expressed intent to open a business in Montgomery County. Nefedro claims that he leased property in Montgomery County, paid rent on the property, purchased furnishings for the property, placed a sign in the storefront announcing that the fortunetelling business would soon open, and attempted to acquire a business license from the Montgomery County Licensing Department. Nefedro says that the supervisor of the Licensing Department denied his request for a license, citing the Fortunetelling Ordinance. The County argues that these claims are unsupported by the record, and, indeed, there is nothing in the record to support Nefedro‘s claims other than his own assertions. In addition, the County argues that, if anything, Nefedro‘s assertions suggest that he requested a license from the Montgomery County Circuit Court, not the County itself.1
There is no dispute that the Fortunetelling Ordinance prohibits the acceptance of remuneration for the performance of fortunetelling. The Ordinance states:
Fortunetelling.
Every person who shall demand or accept any remuneration or gratuity for forecasting or foretelling or for pretending to forecast or foretell the future by cards, palm reading or any other scheme, practice or device shall be subject to punishment for a class B violation as set forth in section 1-19 of chapter 1 of the County Code; and in any warrant for
a violation of the above provisions, it shall be sufficient to allege that the defendant forecast or foretold or pretended to forecast or foretell the future by a certain scheme, practice or device without setting forth the particular scheme, practice or device employed; provided, that this section shall not apply to any benefit performance or part thereof conducted pursuant to section 30-4 of this Code. Montgomery County Code, § 32-7 (1999).
Nefedro filed suit against the County. In his suit, Nefedro asked the court for a declaratory judgment, pursuant to
All right. Well, I think this is essentially a police power being exercised by Montgomery County. And, certainly, under its police power it has the right to regulate this type of activity. It‘s a commercial transaction and even the intermediary [sic] test of this ordinance meets the standard.
So, it certainly has a substantial interest. It‘s been demonstrated that the regulation directly and materially advances the substantial interests and it is narrowly drawn. It is not prohibiting the speech. It is simply regulating it.
In its written order granting the County‘s motion for summary judgment, the trial court stated:
[T]he County fortunetelling law ... is constitutional. The County law regulates speech, not conduct. And, insofar as the County law does regulate speech, it is narrowly drawn to serve the County‘s compelling governmental interest in protecting its citizenry from fraud.
Nefedro appealed the trial court‘s ruling. While the case was before the Court of Special Appeals, we granted certiorari on our own motion to answer the following question:
Did the trial court err in finding that Montgomery County Code § 32-7, criminalizing the demand or receipt of payment for fortunetelling, does not violate the First Amendment to the U.S. Constitution and Article 40 of the Declaration of Rights of the Maryland Constitution?
After receiving briefs and hearing arguments from both parties, we answer this question in the affirmative and reverse the judgment of the Circuit Court.
DISCUSSION
I. Standing
As an initial matter, the County argues that Nefedro lacks standing to challenge the Fortunetelling Ordinance.3 In “a multitude of cases,” this Court has “recognize[d] the availability of actions for declaratory judgments or injunctions challenging the validity of statutes or regulations which may, in the future, be applied to or adversely affect the plaintiffs.” Jackson v. Millstone, 369 Md. 575, 588-90, 801 A.2d 1034, 1042-43 (2002) (citing many cases). Our decision in State v. Lundquist, 262 Md. 534, 278 A.2d 263 (1971), demonstrates this principle in regard to a freedom of speech challenge. In Lundquist, we concluded that there was standing to challenge a statute requiring participation in a flag salute based entirely
The record shows that, at the very least, the Fortunetelling Ordinance will adversely affect Nefedro.4 The County does not dispute that Nefedro operates fortunetelling businesses, and Nefedro has expressed an intent to open a fortunetelling business in Montgomery County if he is allowed to do so. The parties also agree that the Fortunetelling Ordinance would prohibit Nefedro from receiving remuneration for fortunetelling. Indeed, the County‘s argument is founded on its assertion that Nefedro should not be allowed to receive remuneration for fortunetelling because it is, and should be, illegal in Montgomery County. The undisputed facts therefore demonstrate that Nefedro intends to open a fortunetelling business in Montgomery County but that he would be subject to penalties under the Fortunetelling Ordinance if he did so. These facts are sufficient to establish standing.
II. First Amendment
We now address Nefedro‘s First Amendment challenge to the Fortunetelling Ordinance. Nefedro argues that the Ordinance violates his right to freedom of speech as guaranteed by the First Amendment.5 For the foregoing reasons, we agree.
There seems to be no dispute between the parties in this case that fortunetelling is speech.6 Instead, the issues before us are whether the Fortunetelling Ordinance regulates speech and, if so, whether that regulation violates the First Amendment. Nefedro argues that the Ordinance regulates speech and that, accordingly, the law must pass First Amendment scrutiny. The County responds that because the Ordinance regulates only the payment of money for fortunetelling services, it regulates only conduct. As a result, the County asserts, the Ordinance does not implicate the First Amendment. In our view, the Fortunetelling Ordinance does regulate speech.
The First Amendment, as applied to the states by the Fourteenth Amendment, prohibits the states from passing laws “abridging the freedom of speech.”
This provision embodies “[o]ur profound national commitment to the free exchange of ideas.” Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 686, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989). “[A]s a general matter, ‘the First Amendment means that government has no power
to restrict expression because of its message, its ideas, its subject matter, or its content.‘” Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 65, 103 S.Ct. 2875, 77 L.Ed.2d 469 (1983) (quoting Police Dep‘t of Chicago v. Mosley, 408 U.S. 92, 95, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972)). However, this principle, like other First Amendment principles, is not absolute. Cf. Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 56, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988).
Ashcroft v. ACLU, 535 U.S. 564, 573, 122 S.Ct. 1700, 1707, 152 L.Ed.2d 771, 780 (2002) (Ashcroft I).
Assuming, as we do, that fortunetelling is speech, the question before us is whether the Fortunetelling Ordinance violates the First Amendment by improperly restricting that speech. The County argues that the Ordinance does not implicate the First Amendment at all because it prohibits not fortunetelling itself, but the receipt of remuneration for fortunetelling. This is not a meaningful distinction. The Supreme Court has held that a restriction on compensation for speech implicates the First Amendment. In United States v. National Treasury Employees Union, the Court found unconstitutional the application of a federal law that banned honoraria for federal employees.7 513 U.S. 454, 454, 115 S.Ct. 1003, 130 L.Ed.2d 964 (1995). The Court explained that such an outright ban on remuneration for speech implicates the First Amendment even though it “neither prohibits any speech nor discriminates among speakers based on the content or viewpoint of their messages.” Nat‘l Treasury, 513 U.S. at 468, 115 S.Ct. at 1014, 130 L.Ed.2d at 981. Such a restriction implicates the First Amendment because “its prohibition on compensation unquestionably imposes a significant burden on
Cases involving “Son of Sam” laws further illustrate the principle that restrictions on the receipt of remuneration for speech implicate the First Amendment.10 In Simon & Schuster, Inc. v. Members of the New York State Crime Victims Board, the Supreme Court addressed such a law, which required any entity contracting with an accused or convicted person for the depiction of a crime to turn over to the state any income from that contract. 502 U.S. 105, 109, 112, 112 S.Ct. 501, 504-05, 116 L.Ed.2d 476, 482-83 (1991). If a victim of the crime recovered a money judgment against the accused or
Other jurisdictions, including this one, have explicitly followed Simon & Schuster in concluding that restrictions on remuneration for speech implicate the First Amendment. In Curran v. Price, 334 Md. 149, 638 A.2d 93 (1994), we concluded that the Maryland “Son of Sam” statute implicates the First Amendment. The statute,
The above notwithstanding, the County repeatedly asserts, and the dissent agrees, that fortunetelling is “inherently fraudulent” and, as a result, should not receive any First Amendment protection. Indeed, the First Amendment does not protect fraudulent statements. Illinois ex rel. Madigan v. Telemarketing Assocs., 538 U.S. 600, 612, 123 S.Ct. 1829, 1836, 155 L.Ed.2d 793, 804 (2003) (“[T]he First Amendment does not shield fraud.“). We are not, however, persuaded that all fortunetelling is fraudulent. While we recognize that some fortunetellers may make fraudulent statements, just as some lawyers or journalists may, we see nothing in the record to suggest that fortunetelling always involves fraudulent statements. Indeed, fortunetellers, like magicians or horoscope writers, are able to provide entertainment to their customers or some other benefit that does not deceive those who receive their speech. Just as many other courts have concluded, we view this non-fraudulent speech as receiving protection under
In response, the County and the dissent have cited a number of cases in which courts have referred to fortunetelling as fraudulent. We are unpersuaded by these cases. In most of them, the courts were not asked to consider whether fortunetelling was protected speech. See Mitchell v. City of Birmingham, 222 Ala. 389, 133 So. 13 (1931) (addressing the authority of a municipality to pass an ordinance inconsistent with state law); Bridewell v. City of Bessemer, 35 Ala. App. 337, 46 So.2d 568 (1950) (addressing the authority of a municipality to levy a prohibitory licensing fee outside its city limits); White v. Adams, 233 Ark. 241, 343 S.W.2d 793 (1961) (addressing whether the vocation of fortunetelling is a common right or a privilege upon which the state may impose a prohibitory tax); Fay v. Lambourne, 124 A.D. 245, 108 N.Y.S. 874 (1908) (addressing a suit by fortunetellers asking for an injunction prohibiting other fortunetellers from using a particular trade name). In another case, there was no freedom of speech argument before the court and the fortunetelling remuneration ban at issue included an explicit exemption for fortunetelling performed “for the purpose of entertainment or amusement.” Ballard v. Walker, 772 F.Supp. 1335 (E.D.N.Y. 1991)
The only two cases that the County and the dissent have cited that might have any persuasive effect are a 1928 decision from the Supreme Court of Ohio, Davis v. State, 118 Ohio St. 25, 160 N.E. 473 (1928), and an unreported opinion from the United States District Court for the District of Maryland, Mitchell v. Hartford County, No. L-01-3998 (D. Md. Sept. 5, 2002). In regard to Davis, we agree with the United States District Court for the Northern District of Ohio, which rejected Davis when striking down a fortunetelling ban, stating:
In the case at bar, ... this Court ... concludes that Davis v. State does not stand today as a controlling authority that fortune telling is inherently a fraudulent occupation.... The unspoken premise of the Rule in the case at bar, that fortune telling, phrenology, horoscope and the other practices prohibited by the Rule are inherently fraudulent, is not supported by any factual record or factual statement....
Angeline v. Mahoning County Agric. Soc‘y, 993 F.Supp. 627, 633 (N.D. Ohio 1998) (citations and quotations omitted). As for Mitchell, we decline to do as that court did and “defer to the legislative finding ... that fortunetelling is inherently deceptive and, therefore, is unprotected speech.” Mitchell, No. L-01-3998 at 3. Such deference would allow legislatures to ban any manner of protected speech by simply declaring it “inherently deceptive.” Accordingly, we conclude that the Fortunetelling Ordinance regulates speech that the First Amendment protects.
The County argues that if we conclude that the Fortunetelling Ordinance regulates speech, as we have, then it is still constitutional because, according to the County, the law regulates only commercial speech. While we acknowledge that laws restricting commercial speech receive less scrutiny than laws restricting noncommercial speech, we disagree that the Fortunetelling Ordinance regulates commercial speech.
The Supreme Court has explained that laws regulating commercial speech do not receive the same level of heightened scrutiny as laws regulating other types of speech. In Central Hudson Gas & Electric Corp. v. Public Service Commission, the Court explained that although the First Amendment “protects commercial speech from unwarranted governmental regulation,” there is a “‘commonsense’ distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech.” 447 U.S. 557, 561-62, 100 S.Ct. 2343, 2349, 65 L.Ed.2d 341, 348 (1980) (quoting Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 455-56, 98 S.Ct. 1912, 1918, 56 L.Ed.2d 444, 453 (1978)). Accordingly, “[t]he Constitution accords a lesser protection to commercial speech than to other constitutionally guaranteed expression.” Cent. Hudson, 447 U.S. at 562-63, 100 S.Ct. at 2350, 65 L.Ed.2d at 348-49.
In this regard, our initial determination is whether fortunetelling is commercial speech. The general rule is that commercial speech is speech that “propose[s] a commercial transaction.” Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469, 473-74, 109 S.Ct. 3028, 3031, 106 L.Ed.2d 388, 399 (1989) (quoting Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 762, 96 S.Ct. 1817, 1826, 48 L.Ed.2d 346, 358 (1976)); see also Lubin v. Agora, 389 Md. 1, 23, 882 A.2d 833, 846 (2005) (explaining that commercial speech is “speech that does no more than propose a commercial transaction” (quoting Posadas de P.R. Assocs. v. Tourism Co. of P.R., 478 U.S. 328, 340, 106 S.Ct. 2968, 2976, 92 L.Ed.2d 266, 279 (1986))); Jakanna v. Montgomery County, 344 Md.
Fortunetelling is not commercial speech. The purpose of fortunetelling is not to propose a commercial transaction, nor is it solely related to the economic interests of the speaker. Fox, 492 U.S. at 473-74, 109 S.Ct. at 3031, 106 L.Ed.2d at 399; Jakanna, 344 Md. at 595, 689 A.2d at 70. The purpose of fortunetelling is instead to provide some other benefit to the individuals involved, whether entertainment or
The Fortunetelling Ordinance Is Not Narrowly Tailored
Having determined that the Fortunetelling Ordinance regulates fully protected speech based on its content, we now determine whether the Ordinance nonetheless passes muster under the First Amendment. A statute that regulates speech based on its content is “‘presumptively invalid,’ ... and the government bears the burden to rebut that presumption.” United States v. Playboy Entm‘t Group, 529 U.S. 803, 817, 120 S.Ct. 1878, 1888, 146 L.Ed.2d 865, 882 (2000) (quoting R.A.V. v. City of St. Paul, 505 U.S. 377, 382, 112 S.Ct. 2538, 2542, 120 L.Ed.2d 305, 317 (1992)). Not every statute of this sort, however, is unconstitutional. The Supreme Court has explained that a statute that regulates speech based on its content may still comply with the First Amendment if it is
A statute is not “narrowly tailored” if “a less restrictive alternative would serve the Government‘s purpose.” Playboy Entm‘t, 529 U.S. at 813, 120 S.Ct. at 1886, 146 L.Ed.2d at 879. This requirement “ensure[s] that speech is restricted no further than necessary to achieve the [intended] goal, for it is important to ensure that legitimate speech is not chilled or punished.” Ashcroft v. ACLU, 542 U.S. 656, 666, 124 S.Ct. 2783, 2791, 159 L.Ed.2d 690, 701 (2004) (Ashcroft II). To that end, a court‘s question in determining whether a statute is narrowly tailored is “whether the challenged regulation is the least restrictive means among available, effective alternatives.” Ashcroft II, 542 U.S. at 666, 124 S.Ct. at 2791, 159 L.Ed.2d at 701.
The Fortunetelling Ordinance is not narrowly tailored. According to the County, the purpose of the Fortunetelling Statute is to combat the fraud that apparently ensues from fortunetelling. There is at least one less restrictive, effective means for combating fraud: laws making fraud illegal without respect to protected speech.18 In fact, Montgomery County
CONCLUSION
Fortunetelling may be pure entertainment, it may give individuals some insight into the future, or it may be hokum. 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 value of the speech that fortunetelling entails. If Montgomery County is concerned that fortunetellers will engage in fraudulent conduct, the County can enforce fraud laws in the event that fraud occurs. The County need not, and must not, enforce a law that unduly burdens protected speech to accomplish its goal. Such a law will curtail and have a chilling effect on constitutionally protected speech.
JUDGMENT OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY REVERSED. CASE REMANDED TO THE CIRCUIT COURT FOR ENTRY OF A DECLAR
HARRELL, J., dissents.
HARRELL, J., dissenting.
I dissent from the reasoning and conclusion reached in the Majority Opinion, namely, that
Maj. Op. at 599, 996 A.2d at 858. The Majority Opinion, in the face of a tide of judicial decisions from other jurisdictions expressing the view that the business of commercial fortunetelling is “inherently fraudulent” and, as such, is not entitled to protection against government restriction, offers a handful of contrary opinions (Maj. op. at 599-600, 996 A.2d at 858-59), endeavors to distinguish the greater body of cases on point (Maj. op. at 599-602, 996 A.2d at 858-60), and hazards an inapt analogy to lawyers and journalists (Maj. op. at 599-600, 996 A.2d at 858-59), the latter of which fails to recognize that, although some lawyers or journalists may make fraudulent statements, the practice of such professions without fraud is attainable. I would affirm the judgment of the Circuit Court for Montgomery County and hold that Montgomery County‘s election to protect its citizens (and their money and other assets) from for-profit fortunetellers, palmists, card readers, and the like, does not violate Appellant‘s constitutional right to free speech.
Long-standing Supreme Court precedent establishes that the guarantees of the First Amendment do not provide insulation from government restriction of speech that is fraudulent. See Illinois ex rel. Madigan v. Telemarketing Assocs., Inc., 538 U.S. 600, 612, 123 S.Ct. 1829, 1836, 155 L.Ed.2d 793, 804 (2003) (“[T]he First Amendment does not shield fraud.“); Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 771, 96 S.Ct. 1817, 1830, 48 L.Ed.2d 346, 364 (1976) (“Untruthful speech, commercial or otherwise, has never been protected [by the First Amendment] for its own sake.“); Gertz v. Robert Welch, Inc., 418 U.S. 323, 340, 94 S.Ct. 2997, 3007, 41 L.Ed.2d 789, 805 (1974) (“[T]he intentional lie ... belong[s] to that category of utterances which ‘are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be
Many jurisdictions deem the business of commercial fortunetelling to be an inherently fraudulent activity. Ballard v. Walker, 772 F.Supp. 1335, 1341 (E.D.N.Y. 1991) (“The fortune telling statute, in particular, was designed to protect against ‘a prevailing species of fraud whereby its practitioners, professing occult powers of prognostication, annually bilk a gullible public of many millions of dollars.‘” (quoting
Recognizing the foregoing analyses, Judge Legg of the United States District Court for the District of Maryland, in an unpublished memorandum opinion in Mitchell v. Harford County, No. L-01-3998 (D.Md. Sept. 5, 2002), upheld, on summary judgment, the constitutionality of anti-fortunetelling statutes passed by the City of Aberdeen and Harford County that are nearly identical to
It shall be unlawful for any person in the Incorporated Town of Aberdeen to ask, demand, charge or accept any
remuneration, gratuity or anything of value for forecasting, foretelling or pretending to forecast or foretell the future of another by cards, palm reading or any other scheme, practice or device.
Id. at 1. Similarly, the Harford County Code provided:
Any person in the county who shall ask, demand, charge or accept any remuneration, gratuity or anything of value for forecasting or foretelling or for pretending to forecast or foretell the future of another, by cards, palmreading or any other scheme, practice of [sic] device, shall be deemed guilty of a misdemeanor ...
Id. at 1-2. The plaintiff challenged the constitutionality of the respective statutes, arguing, inter alia, that they “violate[d] the guarantees of free speech contained in the First Amendment of the United States Constitution and Article 40 of the Maryland Declaration of Rights.” Id. at 2.
In rejecting the plaintiff‘s contentions and granting summary judgment in favor of the governmental defendants, Judge Legg stated:
As a general rule, the government may not abridge the public‘s right to free speech. The Supreme Court has held, however, that “[u]ntruthful speech, commercial or otherwise” is not protected. Virginia State Board of Pharmacy v. Virginia Citizen‘s [Citizens] Consumer Council, 425 U.S. 748, 771 [96 S.Ct. 1817, 48 L.Ed.2d 346] (1976). In keeping with this principle, courts have deferred to the determinations of municipalities and legislatures that “the business of fortunetelling is inherently deceptive....” In re Bartha, 63 Cal.App.3d 584, 591 [134 Cal.Rptr. 39] (1976). This Court will defer to the legislative finding of the City and Harford County that fortunetelling is inherently deceptive and, therefore, is unprotected speech. Accordingly, Mitchell‘s First Amendment claim must fail.
Id. at 3. The District Court observed further that, “[e]ven if fortunetelling were protected speech, the statutes would withstand constitutional scrutiny,” opining:
The statutes do not target the speech itself, but instead the noncommunicative act of selling the speech. Thus, United States v. O‘Brien, 391 U.S. 367 [88 S.Ct. 1673, 20 L.Ed.2d 672] (1968), provides the applicable legal test for determining the constitutionality of the statutes.3
O‘Brien establishes a four part test for evaluating the constitutionality of regulations that target noncommunicative acts, but have the incidental effect of suppressing speech. Id. at 377 [88 S.Ct. 1673]. Specifically a statute must:
(i) be within the constitutional power of the government;
(ii) be unrelated to the suppression of free expression;
(iii) further an important or substantial government interest; and
(iv) restrict speech no greater than is necessary to achieve the government interest at stake.Id.
The statutes clearly satisfy the first three requirements. First, it is within the constitutional power of the government to regulate fortunetelling. Second, the purpose of the statutes is to prevent fraud, not to suppress fortunetelling altogether. Preventing fraud is an important government interest. See Cantwell v. Connecticut, 310 U.S. 296, 306 [60 S.Ct. 900, 84 L.Ed. 1213] (1940). Thus, the crucial question is whether the statutes restrict more speech than is necessary to prevent fraud.
Anti-fortunetelling statutes are designed to prevent ““a prevailing species of fraud whereby its practitioners, professing occult powers of prognostication, annually bilk a gullible public of many millions of dollars.“” Ballard v. Walker,
772 F.Supp. 1335, 1341 (E.D.N.Y.1991) (quoting
N.Y. Penal Law §§ 165.35 (McKinney 1988) (practice commentary at p. 254)). Courts have held that it is within the police power of the state to enact such regulations, and court should defer to legislative determinations that the “regulation or prohibition [of fortune-telling] is required in order to protect the gullible, superstitious, and unwary.” In re Bartha, 63 Cal.App.3d at 591 [134 Cal.Rptr. 39].[The plaintiff] argues that the statutes could be amended to prohibit fraudulent fortunetelling for consideration, as opposed to prohibiting all fortunetelling for consideration. Presumably such a statute would make it illegal for any fortuneteller to represent an ability to see the future if they did not genuinely believe that they did, indeed, possess such an ability. [The plaintiff] has submitted an affidavit attesting to the sincerity of her belief in her ability to divine the future.
The sincerity of [the plaintiff‘s] beliefs is immaterial. Neither she nor anyone else can foretell the future. The law does not permit the sale of a bogus cancer remedy, for example, simply because the seller wholeheartedly believes in the efficacy of the product. The sincerity of the seller‘s belief does not turn a worthless product or service into a valuable one. The state is empowered to protect the public, especially the most gullible and unsophisticated members of the public, by banning the sale of valueless products and services.
It must be remembered that the statutes do not ban fortunetellers from telling fortunes. The practitioner may claim to have occult powers so long as she does not charge for her services. Moreover, the fortuneteller may charge a fee so long as she does not claim to have occult powers she lacks. Fortunetelling as entertainment is entirely legal and not banned by the statutes. Accordingly, the statutes do not violate the First Amendment.
Id. at 3-5.
Although the District Court‘s decision in Mitchell is not binding upon this Court for at least a couple of reasons, it is,
996 A.2d 869
Leon Steven CALLOWAY
v.
STATE of Maryland.
No. 106, Sept. Term, 2009.
Court of Appeals of Maryland.
June 10, 2010.
Notes
Every person who shall demand or accept any remuneration or gratuity for forecasting or foretelling or for pretending to forecast or foretell the future by cards, palm reading or any other scheme, practice or device shall be subject to punishment for a class B violation as set forth in section 1-19 of chapter 1 of the County Code; and in any warrant for a violation of the above provisions, it shall be sufficient to allege that the defendant forecast or foretold or pretended to forecast or foretold the future by a certain scheme, practice or device without setting forth the particular scheme, practice or device employed; provided, that this section shall not apply to any benefit performance or part thereof conducted pursuant to section 30-4 of this Code.
The problem with Nefedro‘s reliance on these cases is that they concern the applicability of the First Amendment when the government places restrictions on the expenditure of money by a speaker in furtherance of his or her own speech. For example, an individual must often spend money to have someone circulate a petition, so a restriction on paid petition circulators restricts the individual‘s ability to circulate the petition. Meyer, 486 U.S. at 422-23, 108 S.Ct. at 1892, 100 L.Ed.2d at 435-36; see also Buckley, 424 U.S. at 19, 96 S.Ct. at 635, 46 L.Ed.2d at 688 (“[V]irtually every means of communicating ideas in today‘s mass society requires the expenditure of money.“) The present case, on the other hand, concerns a restriction not on the expenditure of money in furtherance of one‘s own speech, but on the receipt of money in exchange for speech. This is a related, but analytically distinct, issue.