Maryland's High Court Strikes Down Montgomery County Fortunetelling Ban Under First Amendment

Affiliate: ACLU of Maryland
June 10, 2010 12:00 am

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BETHESDA ­ Today, the American Civil Liberties Union of Maryland hailed a decision by the Maryland Court of Appeals that strongly defends fundamental free speech rights in a case involving fortunetelling in Montgomery County.

In its decision, the state’s highest court, in keeping with rulings from the Supreme Court and courts around the country, ruled that a Montgomery County ordinance banning fortunetelling is an unconstitutional restriction on protected speech.

“This case has never been just about fortunetellers, but about the fundamental right to free speech,” said Ajmel Quereshi, an attorney with the ACLU of Maryland. “While individual fortunetellers can be punished if they fraudulently exploit their customers, banning all fortunetelling is overbroad and unconstitutional. It is not the role of government to decide that broad categories of speech can be banned merely because it finds them distasteful or disagreeable.”

The unconstitutional Montgomery County law provides that “every person who shall demand or accept any remuneration or gratuity for forecasting or foretelling or for pretending to forecast or foretell the future by card, [or] palm reading Š shall be subject to punishment.” The Court of Appeals found that fortunetelling for pay is due full First Amendment protection ­ rejecting the County’s argument that such speech is “commercial speech”, like advertising. The court ruled the statute’s restriction on payment for fortunetelling is equivalent to a ban on protected speech. In addition, the court explicitly rejected the County’s arguments that fortunetelling is inherently fraudulent:

“Fortunetelling may be pure entertainment, it may give individuals some insight into the future, or it may be hokum. People who purchase fortunetelling services may or may not believe in its value. Fortunetellers may sometimes deceive their customers. We need not, however, pass judgment on the validity or value of the speech that fortunetelling entails. If Montgomery County is concerned that fortunetellers will engage in fraudulent conduct, the County can enforce fraud laws in the event that fraud occurs.

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.”

The lawsuit was originally brought by Nick Nefredo in 2008, represented by attorney Edward Amourgis of Edwards Phillip Amourgis, PC, after he was denied a license to open a fortunetelling business in Montgomery County. A lower court acknowledged that fortunetelling is protected speech, but nevertheless upheld the law as constitutional. Due to the First Amendment issues at stake, the ACLU of Maryland became co-counsel for Nefedro on appeal, as the case was to be considered by the intermediate appeals court.

The state’s highest court took the case up on its own motion in July of 2009.

As the Court of Appeals found today, courts across the country have consistently held that fortunetelling is protected speech, and absolute bans on it, like the Montgomery County law, are therefore unconstitutional. In addition, the Supreme Court has held repeatedly that the mere fact that speech is for profit does not reduce the level of protection it is due.

Nefedro is represented by attorney Edward Amourgis of Edwards Phillip Amourgis, PC, and Ajmel Quereshi and Deborah Jeon from the American Civil Liberties Union of Maryland.

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