Court strikes down Montgomery County fortunetelling ban 

Posted: 7:42 pm Thu, June 10, 2010
By Caryn Tamber
Daily Record Legal Affairs Writer

A Montgomery County ban on fortunetelling violates the First Amendment, the Court of Appeals held Thursday.

The decision is a win for Nick Nefedro, whose application for a business license was rejected because of the ordinance.

The county had argued that the ordinance, which dates to 1951, was intended to protect residents from those who fraudulently claim to be able to tell the future, but the state’s top court rejected this reasoning.

“If Montgomery County is concerned that fortunetellers will engage in fraudulent conduct, the County can enforce fraud laws in the event that fraud occurs,” Judge Clayton Greene Jr. wrote for a 6-1 majority. “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.”

Nefedro plans to pursue his business plans, said one of his attorneys, ACLU of Maryland Skadden fellow Ajmel Quereshi.

“This not only is a victory for Mr. Nefedro, but it’s a victory for advocates of the First Amendment everywhere,” Quereshi said.

Montgomery County spokesman Patrick Lacefield said county lawyers are considering a Supreme Court certiorari petition.

“I’m not sure if an appeal is in the cards, so to speak,” he said. “We’ll probably make that decision in the next couple of days.”

According to the opinion, Nefedro has operated fortunetelling businesses in several locations around the country. After Montgomery County denied him a business license, he sued, but the Montgomery County Circuit Court upheld the fortunetelling ban. He filed a cert petition, but the Court of Appeals took the case before the Court of Special Appeals could hear it.

The top court rejected the county’s reasoning that the ordinance only regulates conduct, not speech, because it only forbids commercial fortunetelling. The Supreme Court has held that restrictions on remuneration for speech implicate the First Amendment, Greene wrote.

The court also dismissed the county’s argument that the ordinance is valid because the Free Speech Clause does not protect fraudulent speech.

“We are not, however, persuaded that all fortunetelling is fraudulent,” Greene wrote. “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.”

The Court of Appeals disagreed with the county’s position that fortunetelling is commercial speech, which would make it less protected. Even when fortunetelling is compensated, the fortuneteller may have additional motivations, Greene wrote.

Finally, the court held that the ordinance is not a narrowly tailored method of keeping fraudulent fortunetellers from preying on the population. In fact, Montgomery County already has an anti-fraud statute on the books, the court noted.

Judge Glenn T. Harrell Jr. dissented.

“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, endeavors to distinguish the greater body of cases on point, and hazards an inapt analogy to lawyers and journalists, 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,” Harrell wrote.

An ongoing debate

A man who makes his living debunking claims of paranormal activity said he thinks laws such as Montgomery County’s are well intentioned but inappropriate.

WHAT THE COURT HELD

Case: Nefedro v. Montgomery County, CA No. 84, Sept. Term 2009. Reported. Opinion by Greene, J.; dissent by Harrell, J. Filed June 10, 2010. Issues: Did the trial court err in finding that Montgomery County’s criminalization of fortunetelling for money does not violate the First Amendment to the U.S. Constitution and Article 40 of the Declaration of Rights of the Maryland Constitution? Holding: Yes; reversed and remanded. The fortunetelling ban violates practitioners’ free speech rights. Counsel: Edward Amourgis and Ajmel Quereshi for appellant; Clifford L. Royalty for appellee. RecordFax: #10-0610-20 (36 pages).

“The problem is that it gets into a realm of personal belief such that lots of people don’t want to be told what they can or cannot think or believe, and from a certain perspective such laws could be said to be somewhere between paternalistic and authoritarian,” said Joe Nickell, a senior research fellow at the Committee for Skeptical Inquiry. “My best solution is to respect people’s choice and to continue to investigate and study such phenomena and hope that an informed public can make the correct choices.”

Several other counties in Maryland, including Harford County, have similar anti-fortunetelling ordinances. In 2002, an unreported opinion by U.S. District Judge Benson E. Legg upheld Harford and Aberdeen’s fortunetelling ban because the First Amendment does not protect untruthful speech. Legg deferred to the Harford and Aberdeen legislatures’ findings that fortunetelling is inherently deceptive.

Harford County Attorney Robert McCord said he will wait until the Court of Appeals opinion becomes final before deciding what to do with the county’s ordinance.

“I can’t predict how the next case that would go through the federal court system would come out based on the decision from the Court of Appeals,” he said.