Fortunetelling should not be protected free speech

Charles McAlpin

In Montgomery County, Maryland, it is temporarily illegal to accept money for “forecasting or foretelling or for pretending to forecast or foretell the future by cards, palm reading or any other scheme, practice or device.” Although the law has been on the books since the 1950’s, it is being challenged in court by Nick Nefedro, a man who claims gypsy ancestry and who wants to run a business selling his services as a fortuneteller. Nefedro was denied a business permit, and he says banning his predictions is discriminatory against his heritage. The ACLU is backing his claim.

The County’s position was made clear in the Washington Post this week by Clifford Royalty, zoning division chief in the Montgomery County attorney's office. "The practice is fraudulent, because no one can forecast the future,” said Royalty. Not surprisingly, Nefedro disagrees.

Although Nefedro has already lost once in court, the ACLU now backs his discrimination claim, and it is considered very possible the law will be overturned on appeal. In other states, such laws have been repealed by the courts on free speech grounds, even though it was not the fortuneteller’s speech that was the crime, but their taking money for fraudulent claims.

A possibility that no one has discussed, however, is that Montgomery County prosecutors might insist that Mr. Nefedro prove his fortunetelling abilities. Courts have an understandable and desirable bias toward protecting free speech, but Mr. Nefedro’s free speech rights are not in danger, only his ability to take money for making predictions. If his ability is real, it should stand up to scientific testing. If it does not stand up to such testing, than it is, in simple terms, fraud. In reality, prosecutors will probably not take this tack because it would take considerable time and effort to establish the credentials of someone able to confirm or debunk Mr. Nefedro’s claims.

The ultimate downfall of this psychic ban may be that it does not ban taking money for predictions by other paranormal means. Mr. Nefedro has not raised religious freedom as an issue yet, but he might argue, for instance, that a televangelists might make paranormal predictions about the future and then accept faith pledges afterward. If this practice is legal for one type of paranormal prediction, then Mr. Nefedro's claims of discrimination might hold water.

In reality, fortunetelling should not be protected free speech any more than yelling "fire" in a crowded theater. Whenever someone claims to make supernatural predictions, those claims should be subject to testing or at least subject to later review for accuracy. That requirement, more than any ban on certain activities, would save suffering and desperate Americans millions (if not billions) of dollars each year.