Second Sight Deserves First Amendment Protection

gene-polcinski-050607By Gene Policinski
First Amendment Center

Let's gaze deeply into our national crystal ball and look in on the latest flap in Livingston Parish, La. We just may see an unexpected, but nonetheless important, constitutional message.

The parish council – called a county council in most areas – voted unanimously a few days ago to make it illegal in that jurisdiction to predict the future for money. Citing justifications ranging from personal religious beliefs to state law, council members voted for penalties of up to a year in jail and $500 in fines for such "second-sight" activities, according to the Associated Press.

Livingston, in the southeastern part of the state near Baton Rouge, is not alone in trying to regulate or ban tarot-card readings, fortune-telling, psychic readings and a host of similar activities. In the past decade, such attempts have gone to court in states including Nebraska, Tennessee, Florida, Oklahoma and North Carolina.

Authorities generally argue that customers of such services are likely to become victims of fraud or illegal confidence schemes. Countering this view, those who make a living predicting the future say that, unless there's evidence of criminal conduct, they have a free-speech right to conduct their business.

An intriguing side argument is made by some that such laws ultimately could be applied to other activities that don't immediately come to mind, such as predicting the stock market, forecasting the weather or – in a stretch – preaching about biblical prophecies, printing horoscopes in newspapers and putting predictions in fortune cookies.

If the past is any indicator of the future – in Livingston or elsewhere – the new local ordinance banning paid predictions of the future seems likely to run smack up against the Bill of Rights.

In Argello v. City of Lincoln (1998), Judge Richard Arnold of the 8th U.S. Circuit Court of Appeals wrote: "If the citizens of Lincoln wish to have their fortunes told, or to believe in palm-reading or phrenology, they are free to do so under our system of government, and to patronize establishments or 'professionals' who purport to be versed in such arts. Government is not free to declare certain beliefs – for example, that someone can see into the future – forbidden. Citizens are at liberty to believe that the earth is flat, that magic is real, and that some people are prophets."

And as U.S. District Judge Robert Echols in Tennessee – in a lawsuit involving tarot readings – said in 2004, earlier cases have held that "predictions are only fraudulent if the speaker knows of facts that will prevent a prediction from coming true." In other words, whatever else it is, under the law fortune-telling isn't a crime unless you intend it to be.

Most Americans, I surmise (not predict), are like me: My belief in readings, séances and psychic forecasts hovers somewhere between healthy skepticism and absolute disbelief. But it's important to note that most speech – whether it expresses my own impeccable logic or someone else's silly belief – is protected from government control. Not just permitted. Or allowed. Or tolerated. But protected with the full force and vigor of an amendment to the United States Constitution.

Why? This nation's founders recognized the desirability – the necessity – of a wide range of free thinking in a free society. Liberty was once an inconceivable concept, save for those who gazed into the future and saw a time when societies would be based on the dignity of man and on inherent freedoms.

Believers in prophets and prophecies, new and old, ought not to have government looking over their shoulders. As Judge Arnold noted, "the line between beliefs (or opinions) and facts is blurry at best. What seems like a provable fact to one person is only an opinion to another: paleontologists … think that evolution is a scientific fact, while creationists think it is only a false belief."

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.

It's not that the unwary, the unknowing or the overly trusting don't deserve to be protected from those who would bilk them of money or worse. But to echo Judge Echols, such frauds are crimes and there are already appropriate laws against them.

Basing your behavior on a $25 prediction or gambling your peace-of-mind in sleight-of-hand may well be foolish. But I can predict with certainty that having government decide what we are free to believe is a worse alternative.

Gene Policinski is vice president and executive director of the First Amendment Center, 1101 Wilson Blvd., Arlington, VA 22209. Web: firstamendmentcenter.org. E-mail: [email protected].