Fortune telling.
I predict it is here to stay.
We have all grown up with fortune tellers around us, from the fortune teller at the county fall festival and Halloween events, to popular culture in movies, to running our government.
Disney has been depicting fortune tellers over the years with Robin Hood (1973) and the robbers disguised as fortune tellers;1 in The Little Mermaid (1989), where Ursula the sea witch was a fortune teller until she was banished by King Triton;2 and in “The Princess and the Frog” (2009), a New Orleans Disney story, where Dr. Facilier was featured as the villian who earned money by reading Tarot cards on the streets of New Orleans. 3 And as we know, all great stories have their roots in the classical Greek tales, so it is not surprising to recall that Homer’s Illiad and Odyssey have a fortune teller or soothsayer.4
Fortune tellers are still very much a part of our society. Matthew McConaughey blames his agreement to do the worst movie of his career, How to Lose a Guy in 10 Days, on a fortune teller who approached him on Sunset Boulevard. (He still believes the fortune teller may have been paid by the studio).5
Pres. Reagan’s wife, the First Lady, Nancy Reagan was rumored to consult regularly with an astrologist (a fortune teller method) and then advised her husband, President Reagan, as to what course of action he should take or not take.6 But it seems this is nothing new. In 16th century England, Queen Elizabeth’s fortune teller/advisor, John Dee, used a crystal ball and rightly predicted her rise to the throne, and so he became her advisor.7 Napoleon’s wife, Robespierre and Czar Alexander of Russia also consulted with a fortune teller (the same one).8
Fortune telling has been in the U.S. since unwritten history. Native Americans have consulted Medicine Men, or had specific oracles such as Lozen, the legendary Apache woman who was a warrior who could predict the location of the enemy,9 and how one might die. Africans brought their own ways of fortune telling and Tituba, who famously triggered the witchcraft trials in Salem, Massachusetts was known to predict marriage and pregnancy.10 European immigrants, also brought a form of fortune telling to the U.S., giving rise to the stereotypical “Gypsy” fortune teller.11 As these practices became entrenched in American society, so too did the skepticism and suspicion surrounding them. This culminated in numerous laws aimed at curtailing, if not outright prohibiting, fortune telling.
The ways of fortune tellers
Fortune tellers, also known as diviners, psychics, or mediums, have various methods to predict or glean information about an individual's life, future events, or the outcomes of specific situations. The Oracle of Delphi perhaps the most famous fortune teller in the world, located at the Pythia of Apollo's temple in ancient Greece is believed to have used noxious gases emitted from the earth at the temple to go into a trance to make her predictions. There was a waiting list for her services.
Their practices can vary widely based on cultural, historical, and personal preferences. Some common methods include:
Tarot Card Reading: This involves interpreting a set of cards drawn by the seeker. Each card has symbolic meanings which the reader uses to offer insights.
Palmistry: By reading the lines, shapes, and mounts on a person's hand, the palmist can interpret character traits and potentially predict future events.
Astrology: Based on the positions of stars and planets at a person's time of birth, astrologers draft horoscopes to provide insights into personality, destiny, and other life events.
Crystal Ball Gazing: Some fortune tellers gaze into crystal balls to "see" and predict future events.
Numerology: This is the study of the mystical significance of numbers and their influence on human life.
Runes: These are symbols carved onto stones or tiles, which are then drawn or cast to provide insights.
Mediumship: Some claim to communicate with spirits to gather information or convey messages from the deceased.
Cleromancy: This involves casting lots, such as dice or bones, and interpreting the results.
Ouija Board: This involves asking the Board a question with all hands on the sliding platform that is guided to the answer.
Fortune telling —is it a crime or a right?
The history of fortune telling in the U.S. has led to legal challenge, philosophical debate and religious quandry that ranges from religious prohibition12 to demands for religious freedom — all coupled with a profound tension between belief and skepticism.
Constitutional challenges to regulating fortune telling
The right to practice and run a business as a fortune teller has relied on the Constitution, specifically the First Amendment (both Free Speech and Freedom of Religion), for its protection.
When California cities were challenged for prohibiting fortune telling practices for payment, the California Supreme Court struck down the ordinance in the City of Azusa, California as an unconstitutional burden on free speech, in 1985.13 The local ordinance could have limited its broad reach to just that which was intended to defraud customers, but the dissenting justice defended its structure opining the practice itself is “inherently deceptive and fraudlent.”14 But should his own lack of belief in fortune telling be everyone’s belief, as long as it does not cross into the zone of criminal behavior? In the end, it was not the court’s place to rewrite the ordinance with the dissenting judge’s spin (his interpretation of the legislative intent based on his own belief) and so it was found unconstitutionally too broad.
The City of Lincoln, Nebraska saw its ordinance struck down by the 8th U.S. Circuit Court of Appeals in 1998 finding the ordinance was unconstitutional because the city failed to show any compelling governmental interest in the law.15 This is a higher standard where a law is burdening a constitutional right, like Free Speech.
The City of Alexandria, Louisiana’s ordinance making fortune telling illegal was struck down by the federal district court, the Western District of Louisiana in 2012 as an unconstitutional infringement on the First Amendment.16
The County of Chesterfield, Virginia’s ordinance was upheld by the federal district court relying on the “professional speech doctrine” that allows regulation of some professional speech, like physicians giving medical advice. “Under the professional speech doctrine, the government can license and regulate those who would provide services to their clients for compensation without running afoul of the First Amendment,” the 4th Circuit opined.17 As an interesting aside, the court had to characterize fortune telling as a “profession” to apply the doctrine, here.
The basis underlying prohibitory laws vary. For some, like the justice in California, fortune telling was simply fraudulent – a scam aimed at the gullible and desperate. Yet the charlatan is a charlatan not for the veracity of his beliefs but whether he intends to defraud someone or not. For others, it was a dangerous deviation from accepted religious practices. Out of this quandry, some states instituted laws that labeled fortune telling as a misdemeanor, punishable by fines or imprisonment. A few states have banned it as criminal, taking the dissenting judges view in the California case. North Carolina makes fortune telling in specified counties a Class 2 Misdeamenor.18 In South Carolina, one cannot travel around as a fortune teller business without obtaining a license in the county in which they are practicing, or it is a misdemeanor. (Each counties’ commissioners must approve of this before it is effective in their county).19 In Louisiana the state makes fortune telling a crime without a permit; while Massachusetts, New York and Virginia, ban fortune telling except for “entertainment” purposes.20 (Fortune tellers often use the phrase “for entertainment purposes only” on their business cards and commercial signage.)
Most states have chosen to use the business permitting process to regulate fortune telling businesses, and avoid the question of content regulation which would be unconstitutional, in general.
First Amendment commentator Gene Policinski has written that fortune tellers, astrologers, and the like “ought not to have government looking over their shoulders” because “education, not regulation, would seem a better way of dealing with the future of star-driven prognostication or colored bits of paper that purport to predict.”21
Courts look kindly on the old fortune tellers
In the earliest cases against fortune telling, the court addressed these laws as simply directed toward criminal behavior under the heading of swindler. However, the continuing theme was whether fortune telling was inherently fraudulent, or just entertainment and the court saw these fortune tellers as not the targets of the legislation —and their arrests simply unintended consequences of the legislatures. (The First Amendment protecting Free Speech was not yet used in this context.)
Take the case of Madeleine Ross (33) and Mary Dorsey (67). The court heard a motion to quash the criminal indictment arguing it did not state that fortune telling was a crime, but rather the statute simply established a fine. The court thought it was plainly a crime described in the statute, but the first defendant, Ms. Ross, was fined only $25 according to news reports (where the fine could have been $100 and up to a year in jail).
Ohio v. Abigail Church (Ohio, 1823). The court was direct in pointing out the statute under which Ms. Church was charged was intended for swindlers, and if the legislature thought that “our peace invaded by the inroads of witches, fortune-tellers and conjurors--let them so express it.” The jury returned a verdict of “not guilty” for Ms. Church.22
I cannot say there is none, but I did not find a single reported criminal case where the fortune teller was not a woman. While not discriminatory in the laws construction, it is discriminatory in its administration. (Like the California ordinance that prohibited any laundry from being built of wood, knowing full well that only laundries owned by Chinese laundry business owners were the ones made of wood. The U.S. Supreme Court struck down that law as unconstitutional.)23 that harkens back to the Salem Witchcraft Trials where 14 of the 19 suspected witches on trial were women.24
Fortune telling today
As time passed, so too did attitudes towards fortune telling. The 21st century has seen a resurgence in interest and acceptance, leading to the repeal or relaxation of many anti-fortune telling laws. The large web of fortune telling cases and laws over time and across the U.S. at both the local and state level of governments remain a testament to the U.S.'s complex relationship with the mystical.
The last several decades have given new life to fortune telling using the sciences and their methods as a platform of credibility. The social sciences field of “future studies” attempts to use trends to project what will happen in the future.25 It is possible to obtain a degree or a certificate in this area of study26 and publish in a dedicated academic journal for that field. 27
We also rely heavily upon the physical and biological sciences for predictions. A significant federal research budget (which I oversaw for several years) has been allocated to predict the effects of climate change. The validity and reliability of these predictions has divided the nation into what has become believers and non-believers rather than a science debate, in part because of its claim to be predictive. Climate scientists can explain their reasoning and underlying scientific theories yet, because prediction still requires a range of possibilities that involves some estimating, it shifts this debate into the realm of room for deception and fortune telling for many.
With the new science of future studies and economic analysis, consulting firms spend much of their time and collect a significant amount of their income for predicting the future. The Booz, Allen, Hamilton and McKinsey consulting firms capitalize on this need for prediction in both the private and public sectors. This new form of fortune telling is regulated with a business license the same as most cities regulate fortune telling businesses. Maybe that is progress.
Happy Halloween.
There may be a book coming on Fortune Teller Law. But this year, if you would like my book about Halloween Law, it is available here: “Halloween Law-A Spirited Look at the Law School Curriculum”.
[NONE OF THIS SHOULD BE CONSTRUED AS LEGAL ADVICE.]
https://en.wikipedia.org/wiki/Robin_Hood_(1973_film)
https://en.wikipedia.org/wiki/Ursula_(The_Little_Mermaid)
https://nypost.com/article/ronald-reagans-wife-nancy-astrologer-joan-quigley/
https://listverse.com/2017/09/22/10-fascinating-fortune-telling-techniques-from-history/
https://www.history.com/news/lozen-apache-woman-warrior
https://www.history.com/news/salem-witch-trials-first-accused-woman-slave
https://www.britannica.com/topic/Rom
Strictly speaking, the Bible, in Deuteronomy 18:9-13, TLB prohibits fortune telling. “No one may practice black magic, or call on the evil spirits for aid, or be a fortune teller, or be a serpent charmer, medium, or wizard, or call forth the spirits of the dead,” at https://www.bibleinfo.com/en/topics/fortune-tellers.
https://scocal.stanford.edu/opinion/spiritual-psychic-science-church-v-city-azusa-28445
Spiritual Psychic Science Church v. City of Azusa (1985) 39 Cal.3d 501 , 217 Cal.Rptr. 225; 703 P.2d 1119 at https://scocal.stanford.edu/opinion/spiritual-psychic-science-church-v-city-azusa-28445 Justice Lucas’s concurrence and dissent.
https://caselaw.findlaw.com/court/us-8th-circuit/1396213.html
https://cases.justia.com/federal/district-courts/louisiana/lawdce/1:2011cv01484/119920/18/0.pdf
https://www.ca4.uscourts.gov/Opinions/Published/112183.P.pdf
https://www.ncleg.net/enactedlegislation/sessionlaws/html/1993-1994/sl1993-596.html It is a class 2 Misdemeanor in NC.
https://www.scstatehouse.gov/code/t40c041.php
https://investortimes.com/states-where-fortune-telling-is-illegal/
https://firstamendment.mtsu.edu/article/fortune-telling/
State of Ohio v. Abigail Church, Court of Common Pleas of Ohio, Gallia County (May term 1823).
https://en.wikipedia.org/wiki/Yick_Wo_v._Hopkins
https://theconversation.com/most-witches-are-women-because-witch-hunts-were-all-about-persecuting-the-powerless-125427
https://en.wikipedia.org/wiki/Futures_studies
https://wfsf.org/futures-studies-education-introduction/
https://www.scimagojr.com/journalsearch.php