Soothsayer Law
posted by Nate Oman
According to the WashPo, St. Johnsbury, Vermont has decided to make the plunge and legalize soothsaying. It turns out that a number of jurisdictions still have anti-fortunetelling statutes on the books. Contemporary Pennsylvania law, for example states:
A person is guilty of a misdemeanor of the third degree if he pretends for gain or lucre, to tell fortunes or predict future events, by cards, tokens, the inspection of the head or hands of any person, or by the age of anyone, or by consulting the movements of the heavenly bodies, or in any other manner, or for gain or lucre, pretends to effect any purpose by spells, charms, necromancy, or incantation, or advises the taking or administering of what are commonly called love powders or potions, or prepares the same to be taken or administered, or publishes by card, circular, sign, newspaper or other means that he can predict future events, or for gain or lucre, pretends to enable anyone to get or to recover stolen property, or to tell where lost property is, or to stop bad luck, or to give good luck, or to put bad luck on a person or animal, or to stop or injure the business or health of a person or shorten his life, or to give success in business, enterprise, speculation, and games of chance, or to win the affection of a person, or to make one person marry another, or to induce a person to make or alter a will, or to tell where money or other property is hidden, or to tell where to dig for treasure, or to make a person to dispose of property in favor of another. (18 Pa.C.S.A. § 7104 )
The law apparently dates back to an 1861 state statute. A quick Westlaw search reveals reported cases dealing with anti-fortunetelling statues in California, Illinois, Maryland, New York, Washington, and other states.
Witchcraft and cursing, of course, were crimes at common law on the straight-forward theory that they were a method of harming others that ought to be suppressed. One may dispute the metaphysics behind this crime, but as a normative matter it seems simple enough. One might even object to love potions as a kind of officious intermeddling. The suppression of fortunetelling — along with other forms of beneficent magic like peering in stones to find lost treasure — however, rests on a more subtle calculation, some of it less than pretty.
From the reported cases that I glanced through, it seems that in the early twentieth century these laws were used mainly against Gypsies or immigrants of Eastern or Southern European extraction, suggesting a definite ethic bias at work. In the nineteenth century, the concern was with home grown American conjuring. Folk magic, of course, was an important part of life among the rural poor in the 19th century. Village rodsman and glass peepers would hire themselves out to find water, lost objects, or buried treasure. To local elites, of course, this stuff was the vilest — and most embarrassing — superstition, which had to be suppressed. In some cases the argument was fraud, although often the customers of local magicians were not the one’s pressing charges. The real impetus was the suppression of superstition.
There is also a religious element here. I found a 1927 Pennsylvania case holding that faith healing and trafficking in biblical predictions did not come under the statutory definition of “fortune telling.” In the early 19th century, however, there was little — if any — distinction among the rural poor between “magic” and “religion,” Indeed, the category of magic was in large part the creation of (Protestant) anthropologists in the late 19th century who wished to distinguish respectable “religion” from mere “superstition.”
So is there a case to be made for the prohibition of fortune telling in the modern world? One can certainly imagine cases of fraud, but it is also not unreasonable to simply impose a rule of caveat emptor on those that purchase magical services and leave it at that. There are also, it seems to me, potential first amendment concerns. I am not free speech expert, but it seems to me that the suppression of fortune telling necessarily involves a content-based speech restriction. Of course, this is commercial speech, but in at least some cases it is bound to be truthful, and even predictions that turn out to be mistaken need not be fraudulent. It is difficult to cast a horoscope properly and sometimes astrologers make innocent mistakes. There is also the free exercise claim. If fortune telling can be characterized as religion, then it seems to me that there is a very strong free exercise argument here. This is not a neutral or generally applicable law. The Pennsylvania, statute, for instance is aimed directly at fortune telling itself.
Needless to say, I await the cert petition.
(Image source: Wikicommons)
September 7, 2008 at 5:42 pm
Posted in: Consumer Protection Law, Contract Law & Beyond, Criminal Law, Culture, History of Law
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Responses (4)
James Grimmelmann - September 7, 2008 at 7:53 pm
I think the Pennsylvania law you’ve quoted is unconstitutional. The key language is ” publishes by card, circular, sign, newspaper or other means that he can predict future events,” which I take to prohibit me from writing a letter to the editor claiming that I can predict whether the sun will come up tomorrow.
Ben - September 7, 2008 at 10:59 pm
State ACLU’s have challenged similar state and local laws a few times. I worked on one such challenge as a 1L summering with the Georgia ACLU. The setup was such that state law allowed counties to regulate, prohibit, or tax fortunetelling for a profit (O.C.G.A. § 36-1-15). Ultimately our client was granted her business license. I have copies of an Atlanta Journal Constitution Article and I have copies of the brief that I drafted challenging the all this. It’s fascinating stuff and I’m happy to share it with you.
Ben - September 7, 2008 at 11:01 pm
Quick update: a brief summary can be found at http://acluga.org/docket.html#3
Howard Wasserman - September 8, 2008 at 2:43 pm
I am not sure I would concede so fast this is commercial speech. The prohibition of “publishing by sign, [etc.]” is commercial; the actual telling of a fortune or reading of cards and palms, even if done for profit, is not commercial.
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