Silveen
2010-01-16 22:41:57 UTC
Legal Opinion
In Azusa, the California Supreme Court quoted: "Predictions of the future
have been characterized as expressions of opinion, not actionable unless the
speaker knows the opinion is unwarranted or induces reliance on the opinion
as if it were an expression of fact."(10) The Court then stated: "It must be
conceded that many persons practicing the 'art' of fortunetelling are
engaging in fraudulent activity. Many fortunetellers have no belief in their
powers to predict the future. If such persons obtain consideration for their
services, the activity could be deemed fraudulent; their statements would be
false statements of fact, for they are not expressing what they truly
believe will happen in the future."
Statistically, the number, or percentage, of fraudulent "fortune-tellers,"
is unknown, and we must assume it is quite low. In 1974, California
recorded -- statewide -- less than two dozen cases of fraudulent
fortunetelling, and the state no longer keeps an accounting of these few
offenses.
What is obvious, given the large number of practicing astrologers, psychics
and metaphysicians (and their membership in professional associations) is
that, as the Court continues, "... it is also true that some persons believe
they possess the power to predict what has not yet come to pass. When such
persons impart their beliefs to others, they are not acting fraudulently;
they are communicating opinions which, however dubious, are unquestionably
protected by the Constitution." (1) It should also be obvious that the
opinions of many professional astrologers are not so dubious, given the
positive results their clients increasingly recount, as reported in numerous
newspapers such as the highly reputable The Wall Street Journal, The New
York Times and others
It is important to note that the Uniform Criminal Code does not criminalize
astrology. There are no Federal statutes that restrict astrology. The only
known mention of astrology in Federal documents is in the Department of
Labor's Dictionary of Occupational Titles:
ASTROLOGER: Prepares and analyzes horoscopes to advise clients regarding
future trends and events: prepares horoscopes by computing the positions of
planets, their relationship to each other and the zodiacal signs, based on
factors, such as time and place subject was born. Analyzes horoscope to
advise clients, such as person or company, regarding conditions which lie
ahead, course of action to follow, and probability of success or failure of
that action.
It is not so obvious to many that many astrologers simply do not predict.
Whether they consider they can or not, they prefer not to. In their
professional practices, many astrologers emphasize counseling regarding
inherent qualities and tendencies and current conditions, to the exclusion
of actual prediction.
In spite of assuming that occult fraud was a more pervasive problem than it
is, the California Supreme Court cited the United States Supreme Court
ruling: "precision of regulation must be the touchstone in an area so
closely touching our most precious freedoms.(11) Regulation 'Whether aimed
at fraud or other abuses, must not trespass upon the domain set apart for
free speech and assembly.' (12) Regulation is suspect, therefore, if it
prohibits protected expression, even though it guards the public from
fraud."
Putting protection of the First Amendment (where it belongs) above making
easier the jobs of legislatures, city councils, and police departments, the
Court ruled "'Mere legislative preference for one rather than another means
of combating substantive evils' is not sufficient to justify an overbroad
ordinance. It is irrelevant that punishing fraud may be less convenient than
prohibiting all situations in which a potential fraud exists."
The Oregon Appellate court in Marks v. City of Roseburg (13) held similarly
that, "Laws must focus on proscribing the pursuit or accomplishment of
forbidden results rather than on the suppression of speech or writing either
as an end in itself or as the means to some other legislative end."
The Court's Conclusion
In summation, the California Supreme Court in Azusa stated that the state
statute prohibiting fraudulent fortunetelling (Penal Code section 332) was
valid and sufficient to protect the public interest. "Thus there are methods
to prevent fraudulent fortunetelling that would impose less drastic
restriction on protected speech. Any marginal interest the City may have in
a more complete and convenient regulation in this area by a total ban on
fortunetelling for compensation is outweighed by the interest in free and
open speech on all subjects."
"Therefore the (Azusa) ordinance fails both the least drastic means test and
the balancing of interests tests. Before us now is an enactment that is
invalid in its essence."
What Cities Can and Cannot Do
No city in California can ban astrology, or the related and unrelated
metaphysical practices with which it was previously outlawed. Equally,
cities cannot unduly restrict or overly regulate any metaphysically based
speech about character or about the future. Cities in all other states will
soon have to deal with the same question of whether and how to regulate
"fortune-telling." They will in the process have to consider the California
Supreme Courts persuasive arguments, and the extensive list of controlling
federal precedents cited in Azusa. What can cities do? Here are some of the
options many cities have tried prior and subsequent to astrology's
liberation, and the problems with each of them:
Business License Fees of up to $100 per day:
This is clearly an attempt to enact a de facto ban on esoteric practices. It
is impermissible because it violates the Fourteenth Amendments equal
protection clause; it is "differential taxation." Fees must be the same for
similar businesses, judged on conduct, not content. This attempt is
manifestly an impermissible "content-based restriction" of Free Speech.
Special Classifications:
Creating a special classification such as "Occult Arts" or requiring only
"Fortune-tellers" to undergo fingerprinting, mug shots, or police background
checks and submit to complex and time-consuming hearings also violates the
equal protection clause. Astrologers and other metaphysical consultants must
be fairly classed with mundane consultants, such as analysts, attorneys,
clergy, counsellors, and brokers, i.e., by nature of business rather than
content of speech
Zoning Restrictions:
By creating "white-light districts" to concentrate occultists, (in
industrial areas?! or just off the main streets) or mandating a certain
separation from each other and from churches and schools, the cities are in
violation of the equal protection clause of the U.S. Constitution. Zoning
attempts would fail to meet the standard of serving a "compelling state
interest".
Bonding:
Many cities have resorted to requiring "fortune-tellers" to post a surety
bond "to ensure fair dealing" with the public. This amounts to prior
restraint, i.e., punishment before the crime, or in effect, paying the fine
before the conviction, which is clearly impermissible under the U.S.
Constitution.
Additionally, almost all bonding companies refuse to issue these bonds,
either saying they recognize the legal and practical flaws inherent in these
ill-conceived ordinances, or implying that they accept the "gypsy
fortuneteller" stereotype that astrologers and the like are "inherently
fraudulent" and not good risks for bonds. Requiring a surety bond when none
can be purchased, for whatever reason, amounts to instituting a de facto ban
on the practice.
Two California cities, El Cerrito and San Pablo, blatantly attempted to
circumvent the Court's intention by using bonding requirements to enact a de
facto ban. When El Cerrito City Council members were informed that surety
bonds were both unavailable and of questionable legality, they attempted to
bypass the issue by requiring a personal bond that could be paid in cash to
the city, and in an amount greater than a legitimate bond would cost -- even
if it were available. These proposed ordinances were void for a variety of
reasons.
Professional Examinations:
Atlanta, Georgia, requires astrologers to pass a professional-level
certification examination before acquiring a business license. Atlanta has a
City Board of Astrological Examiners that writes its own exam for astrology,
which may be permissible.
Requiring that practitioners meet the competency standards established by
the profession as a whole may be permissible. However, such regulation must
not restrict competition nor bar entry into the profession. Cities must make
allowances (in zoning requirements as well) for the normal process of
business development and career change which is to begin a part-time
practice from one's home before becoming a full-time practitioner.
Special Requirements:
Some cities require "fortune-tellers" to register their fee schedule with
the police department, and to inform officials of any proposed changes in
fees before they occur. Practitioners must also post both their fees and
consumer protection notices, e.g.: "This business is prohibited by law from
requesting fees above those posted for specific services." This unequally
taints a lawful and law-abiding profession.
Fortunetellers are also prohibited from accepting any property or thing of
value in addition to or in lieu of fees, and from asking that such be
transferred into the "safekeeping" of another. This is a gray area the
courts have not directly dealt with. There may be a reasonable basis for
this departure from "equal protection." These regulations may amount to
prior restraint and may also constitute undue governmental interference in
business practices. However, if they directly address activities that have
frequently lead to fraud, they may be construed as permissible regulation.
(see below)
In Azusa, the California Supreme Court quoted: "Predictions of the future
have been characterized as expressions of opinion, not actionable unless the
speaker knows the opinion is unwarranted or induces reliance on the opinion
as if it were an expression of fact."(10) The Court then stated: "It must be
conceded that many persons practicing the 'art' of fortunetelling are
engaging in fraudulent activity. Many fortunetellers have no belief in their
powers to predict the future. If such persons obtain consideration for their
services, the activity could be deemed fraudulent; their statements would be
false statements of fact, for they are not expressing what they truly
believe will happen in the future."
Statistically, the number, or percentage, of fraudulent "fortune-tellers,"
is unknown, and we must assume it is quite low. In 1974, California
recorded -- statewide -- less than two dozen cases of fraudulent
fortunetelling, and the state no longer keeps an accounting of these few
offenses.
What is obvious, given the large number of practicing astrologers, psychics
and metaphysicians (and their membership in professional associations) is
that, as the Court continues, "... it is also true that some persons believe
they possess the power to predict what has not yet come to pass. When such
persons impart their beliefs to others, they are not acting fraudulently;
they are communicating opinions which, however dubious, are unquestionably
protected by the Constitution." (1) It should also be obvious that the
opinions of many professional astrologers are not so dubious, given the
positive results their clients increasingly recount, as reported in numerous
newspapers such as the highly reputable The Wall Street Journal, The New
York Times and others
It is important to note that the Uniform Criminal Code does not criminalize
astrology. There are no Federal statutes that restrict astrology. The only
known mention of astrology in Federal documents is in the Department of
Labor's Dictionary of Occupational Titles:
ASTROLOGER: Prepares and analyzes horoscopes to advise clients regarding
future trends and events: prepares horoscopes by computing the positions of
planets, their relationship to each other and the zodiacal signs, based on
factors, such as time and place subject was born. Analyzes horoscope to
advise clients, such as person or company, regarding conditions which lie
ahead, course of action to follow, and probability of success or failure of
that action.
It is not so obvious to many that many astrologers simply do not predict.
Whether they consider they can or not, they prefer not to. In their
professional practices, many astrologers emphasize counseling regarding
inherent qualities and tendencies and current conditions, to the exclusion
of actual prediction.
In spite of assuming that occult fraud was a more pervasive problem than it
is, the California Supreme Court cited the United States Supreme Court
ruling: "precision of regulation must be the touchstone in an area so
closely touching our most precious freedoms.(11) Regulation 'Whether aimed
at fraud or other abuses, must not trespass upon the domain set apart for
free speech and assembly.' (12) Regulation is suspect, therefore, if it
prohibits protected expression, even though it guards the public from
fraud."
Putting protection of the First Amendment (where it belongs) above making
easier the jobs of legislatures, city councils, and police departments, the
Court ruled "'Mere legislative preference for one rather than another means
of combating substantive evils' is not sufficient to justify an overbroad
ordinance. It is irrelevant that punishing fraud may be less convenient than
prohibiting all situations in which a potential fraud exists."
The Oregon Appellate court in Marks v. City of Roseburg (13) held similarly
that, "Laws must focus on proscribing the pursuit or accomplishment of
forbidden results rather than on the suppression of speech or writing either
as an end in itself or as the means to some other legislative end."
The Court's Conclusion
In summation, the California Supreme Court in Azusa stated that the state
statute prohibiting fraudulent fortunetelling (Penal Code section 332) was
valid and sufficient to protect the public interest. "Thus there are methods
to prevent fraudulent fortunetelling that would impose less drastic
restriction on protected speech. Any marginal interest the City may have in
a more complete and convenient regulation in this area by a total ban on
fortunetelling for compensation is outweighed by the interest in free and
open speech on all subjects."
"Therefore the (Azusa) ordinance fails both the least drastic means test and
the balancing of interests tests. Before us now is an enactment that is
invalid in its essence."
What Cities Can and Cannot Do
No city in California can ban astrology, or the related and unrelated
metaphysical practices with which it was previously outlawed. Equally,
cities cannot unduly restrict or overly regulate any metaphysically based
speech about character or about the future. Cities in all other states will
soon have to deal with the same question of whether and how to regulate
"fortune-telling." They will in the process have to consider the California
Supreme Courts persuasive arguments, and the extensive list of controlling
federal precedents cited in Azusa. What can cities do? Here are some of the
options many cities have tried prior and subsequent to astrology's
liberation, and the problems with each of them:
Business License Fees of up to $100 per day:
This is clearly an attempt to enact a de facto ban on esoteric practices. It
is impermissible because it violates the Fourteenth Amendments equal
protection clause; it is "differential taxation." Fees must be the same for
similar businesses, judged on conduct, not content. This attempt is
manifestly an impermissible "content-based restriction" of Free Speech.
Special Classifications:
Creating a special classification such as "Occult Arts" or requiring only
"Fortune-tellers" to undergo fingerprinting, mug shots, or police background
checks and submit to complex and time-consuming hearings also violates the
equal protection clause. Astrologers and other metaphysical consultants must
be fairly classed with mundane consultants, such as analysts, attorneys,
clergy, counsellors, and brokers, i.e., by nature of business rather than
content of speech
Zoning Restrictions:
By creating "white-light districts" to concentrate occultists, (in
industrial areas?! or just off the main streets) or mandating a certain
separation from each other and from churches and schools, the cities are in
violation of the equal protection clause of the U.S. Constitution. Zoning
attempts would fail to meet the standard of serving a "compelling state
interest".
Bonding:
Many cities have resorted to requiring "fortune-tellers" to post a surety
bond "to ensure fair dealing" with the public. This amounts to prior
restraint, i.e., punishment before the crime, or in effect, paying the fine
before the conviction, which is clearly impermissible under the U.S.
Constitution.
Additionally, almost all bonding companies refuse to issue these bonds,
either saying they recognize the legal and practical flaws inherent in these
ill-conceived ordinances, or implying that they accept the "gypsy
fortuneteller" stereotype that astrologers and the like are "inherently
fraudulent" and not good risks for bonds. Requiring a surety bond when none
can be purchased, for whatever reason, amounts to instituting a de facto ban
on the practice.
Two California cities, El Cerrito and San Pablo, blatantly attempted to
circumvent the Court's intention by using bonding requirements to enact a de
facto ban. When El Cerrito City Council members were informed that surety
bonds were both unavailable and of questionable legality, they attempted to
bypass the issue by requiring a personal bond that could be paid in cash to
the city, and in an amount greater than a legitimate bond would cost -- even
if it were available. These proposed ordinances were void for a variety of
reasons.
Professional Examinations:
Atlanta, Georgia, requires astrologers to pass a professional-level
certification examination before acquiring a business license. Atlanta has a
City Board of Astrological Examiners that writes its own exam for astrology,
which may be permissible.
Requiring that practitioners meet the competency standards established by
the profession as a whole may be permissible. However, such regulation must
not restrict competition nor bar entry into the profession. Cities must make
allowances (in zoning requirements as well) for the normal process of
business development and career change which is to begin a part-time
practice from one's home before becoming a full-time practitioner.
Special Requirements:
Some cities require "fortune-tellers" to register their fee schedule with
the police department, and to inform officials of any proposed changes in
fees before they occur. Practitioners must also post both their fees and
consumer protection notices, e.g.: "This business is prohibited by law from
requesting fees above those posted for specific services." This unequally
taints a lawful and law-abiding profession.
Fortunetellers are also prohibited from accepting any property or thing of
value in addition to or in lieu of fees, and from asking that such be
transferred into the "safekeeping" of another. This is a gray area the
courts have not directly dealt with. There may be a reasonable basis for
this departure from "equal protection." These regulations may amount to
prior restraint and may also constitute undue governmental interference in
business practices. However, if they directly address activities that have
frequently lead to fraud, they may be construed as permissible regulation.
(see below)