Nefredo v. Montgomery County: Ethical Treatment for Fortune-tellers

Or should that be “ethical treatment for charlatans”?

In the case of Nefredo v. Montgomery County, the Maryland Court of Appeals ruled that it was an infringement of the Right of Free Speech for the Montgomery County, Md., to deny a business license to a fortune-teller on the basis of a County ordinance that declared charging a fee for fortune-telling services was a crime. The ordinance states:

“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…”

Of course the Court is correct that the ordinance was a restriction on free speech based on content, which the First Amendment of the Bill of Rights explicitly says the government must not do.  Montgomery County’s abuse of power went beyond that, however. It arbitrarily singled out fortune-tellers for an official declaration that their conduct was fraudulent, taking away potential livelihood, without proof of harm, evidence of fraud, or even adequate thought about the slippery slope the ordinance starts the State going down. Many people go to palm readers, mediums psychics and fortune-tellers out of curiosity or for pure entertainment. Those customers are not being defrauded or harmed. Some who patronize fortune-tellers and believe in their powers are impressed and pleased with what they hear. Some psychics and fortune-tellers genuinely believe in their own powers: who can they be defrauding anyone? More importantly, how can Montgomery County be 100% certain that no fortune-teller is genuine?

Many Metropolitan police departments have used mediums in desperation to solve serial killings and other crimes. Allison DuBois, the Phoenix medium who has assisted police many times and whose life is mirrored in the Emmy-winning CBS drama “Medium,” may be deluded, lucky or mistaken, but every indication is that she believes in her psychic powers, and her success using her dreams to break murder cases at least creates a prima facie case that she might be correct.

It is also unfair to single out this dubious occupation for State prejudice. There is legitimate skepticism about the legitimacy of psychiatrists, life coaches, chiropractors, faith healers, acupuncturists, astrologers, ghost-hunters, exorcists, priests, reverends, politicians and ethicists.  In cases of real fraud, there are laws in place to seek redress, but it is blatantly unethical for the government to simply declare an occupation inherently illegitimate without fair and substantive findings.

It’s impossible to prove that no one can, could or will ever see into the future, you say? Very true. And that means that the State cannot ethically or legally act as if it knows it isn’t possible.

You can read the Court’s opinion here.

19 thoughts on “Nefredo v. Montgomery County: Ethical Treatment for Fortune-tellers

  1. Well-spoken. However, in an age in which the nanny state believes it knows better than the individual what he or she may be permitted to think, and that it is the state’s responsibility to protect individuals from the consequences of their own actions, it is not a surprise. Then again, on the larger scale, isn’t this what bailing out morally corrupt banks and Cyclopean auto companies is all about?

  2. Counties and cities have all sorts of ordinances, some silly and some not, but which are based on past events that resulted in people being endangered or defrauded. I’m less concerned with these local rules than I am with those on higher levels and, therefore, further removed from the citizens. If Sheriff Goodguy wants to run some dopy phrenologist out of town for bilking folks- fine. Let the voters decide later. That’s why these people are elected. Frankly, to call fortune telling an exercise of “free speech” is pushing the definition of it right off the cliff. And there’s been far too much of that already… mostly on the federal level.

    • You shock me. Fortune-telling is speech, based on content. If you can ban fortune-telling based on the argument that it is lies and nonsense, tell me why you can’t ban Charles Blow, Eugene Robinson or Paul Krugman? I also think its dangerous to wink at lower level of government abuse of power.

      And the law is the height of paternalism. Saying that a patron of a fortune-teller hasn’t had plenty of notice that the service is dubious is like claiming people who smoke don’t know it’s dangerous.

      • I agree, Jack.

        Letting our rights be taken away at the local level is no less odious than seeing them revoked at the state or federal level.

        I understand that many people are more tuned in to national politics than local. But if you lose the right to speak freely in your one-horse town, you can’t live there as an American anymore, because the town council has deprived you of one of your basic rights.

        That’s wrong, and it’s folly to overlook it.

    • The point of first amendment rights is to recognize that those with whom you disagree are free to express their opinions. When you cringe at what someone else is saying, that may be how you know those rights are being exercised. OTOH, Supreme Court justice-in-waiting Kagan is on record as finding such inconveniences not worthy of preserving, as does the Obamafia with their intention of mounting “black boxes” for cable and internet monitoring and limited access in our homes, and taxing alternative media out of existence.
      And, by the way, voters don’t get to decide such matters of free speech, unless “we are all Supremes” now.

  3. When does “free speech” cross the line into “fraudulent business practices”? That’s the key factor, here. Banning carnival based palm readers seems excessive, as it’s intended as a diversion instead of a true service. However, self-proclaimed “psychics” have become a widespread business, advertising themselves as genuine and playing on the hopes, fears and griefs of people who’ve been exposed to too many occultist influences from the pop culture. The infamous “Cleo” incident was only the most public episode of this modern version of snake oil salesmen. I can’t blame local governments for wanting to protect their citizens. If those ordinances DO go so far as to intrude on genuine free speech rights… well, that’s what the courts are for.

    • So, it’s going to take a psychics’ class action suit to take it to the Supreme Court? “Free speech” crosses the line to “fruadulent business practice” when there is no longer an expectation that due diligence, correctly or incorrectly exercised by an average individual, can reasonably be expected to divine the former from the latter. We were founded as a nation by those who did recognize the value of common sense, and when those who didn’t exercise it could be rightly disparaged. It was not “politically correct” to NOT use one’s common sense. If you allow the state to take this challenge away from the individual, soon all you will have is a nation of sheeple… which is what we are fast becoming.

      • I think you’ve put your finger on what is so offensive about this ordinance, Peter. By this standard, I see no reason why the government couldn’t make it illegal to promote Scientology or Islam or Catholicism. I bet there are people out there who really think the wafer and wine turn into flesh and blood. Fraud?

    • Which is what the Court said. The ordinance is prior restraint of speech that MIGHT be used to defraud, without distinguishing between that and the same type of speech used to entertain or express the genuine beliefs of the speaker. And no one has explained to me how a sincere psychic or astrologer (I know someone who is both) is any more or less a fraud than Oral Roberts or the Pope. As Marlon Brando said in “Don Juan DeMarco”: “How do you know he ISN’Y Don Juan?”

  4. Wait… were there seriously 9 posts before me that didn’t even raise the point that business people “forecast” the future? Wouldn’t this ordinance outlaw weathermen? I mean seriously! What in that ordinance would permit a weatherman?

    1 – A weatherman creates a forecast by using a “scheme”. It’s technical and based in science, but it’s a scheme that provides reliable data.

    2 – A weatherman is generally published on a TV station or in a newspaper and is paid for his work. I think that’s called “renumeration”.

    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….

  5. I’ll leave the ethical debate to others, but if you believe that a psychic or similar non-scientist has ever even come close to helping, must less solving, a criminal case, you must be one of those people whose inability to separate fact from fiction and fraud was what the Maryland statue was aimed at. (Before anyone leaps too high, let me say firmly that I believe the best way to prove something false is to prove it, not to prevent its expression.) Few police departments pay any attention to such extracurricular help, and there is no objective evidence, much less a prima facie case, that the solution of any case has been advanced one millimeter in this way.

    Are these people 100% wrong? I don’t know, but it seems to me that they have to demonstrate that they are something better than 0% right, which is their track record so far.

    • Now, I didn’t say or even suggest that any psychics actually helped the police solve anything. It’s a matter of record that mediums and psychics have “assisted” the police in investigations, in the sense that they have been paid to consult. I don’t think most economists “help” policy-makers either, but they sometimes do assist. (Economics has about as good a track record as psychics, wouldn’t you say?)

  6. The standard joke is that economics is the only field in which two people can win a Nobel Prize for saying exactly opposite things. The original speaker of this quotation has never been found, probably because there is no Nobel Prize for economics. There is the Sveriges Riksbank Prize in Economic Sciences in Memory of Alfred Nobel, established in 1968, but it ain’t a Nobel Prize.

    Incidentally, the fortuneteller police will soon arrive at your door for “predicting” (offline) that I’d make a snide comment about psychics helping police officers. You people just never learn, do you?

  7. Errr… since when have weathermen set up booths and predicted your personal weather patterns and demanded remuneration for it?? Meteorology is a science whose limitations (per Chaos Theory!) are well known. When crystal ball gazers cloak themselves in legitimacy and try to sell their prognostications as genuine, this is fraud. Certainly, you cannot, in the final analysis, protect fools from their folly. But you can, at least, give them fair warning that basing their future actions on soggy tea leaves is just plain stupid. Nor does comparing this with religious services (!) constitute a viable analogy. Not only are such things protected (or should be) under the First Amendment, but church offerings are completely voluntary. I, for one, have trouble with the idea of comparing Pope Benedict with Madam FooFoo!

  8. 1. Seeing Madam Foo Foo is also voluntary, and protected by the First Amendment.
    2. Human events, like the weather and financial markets, are also governed by chaos theory. Predicting one is as hard as predicting the other.
    3. The news show studios are the booths, and the sponsor money is the pay. They claim to predict the weather with science, but the Farmer’s Almanac is just as accurate. Why is that less deceptive than fortune-telling?
    4. Fortunetelling requires a customer to have faith. The only difference between that and the Church of Scientology is a good non-profit attorney.

  9. I have never been forced to go to a psychic or an astrologer, but I expect to be able to have to determine by experience whether he/she has been helpful or not, just as I would were I to visit an auto mechanic or an attorney, who promises legitimately to predict the future and intervene on my behalf regarding my car or my legal problems. Both will likely promise that they can do so. Whether they are correct or not is not always certain, but I still end up paying. Astrologers and psychics actually DO help some people, or they, the buyers themselves, believe that they do. I see no reason why we should be required to be selectively naive about some and not about others.

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