Can local governments tell diviners, psychics, and practitioners of other related predictive arts where to go? According to the 4th Circuit Court of Appeals, yes, they can. On February 26th a three-judge panel upheld a lower court ruling that said Sophie Moore-King, aka Sophie King, aka “Psychic Sophie,” is not exempt from zoning codes and taxes aimed at psychics even though she claims to be engaged in religious counseling and immune from these regulations.
“As the government complies with the professional speech doctrine by enacting and implementing a generally applicable regulatory regime, the fact that such a scheme may vary from profession to profession recedes in constitutional significance. Just as the internal requirements of a profession may differ, so may the government’s regulatory response based on the nature of the activity and the need to protect the public. See Post, supra at 134 n.83 (“The shape and form of constitutional protections extended to professional speech will depend upon the precise constitutional values at stake.”). With respect to an occupation such as fortune telling where no accrediting institution like a board of law examiners or medical practitioners exists, a legislature may reasonably determine that additional regulatory requirements are necessary.”
The panel denied that King’s business was materially different from other psychic services currently regulated in Chesterfield County, and thus exempt, though the panel was careful to note that psychic services do have constitutional protections, albeit limited by the “professional speech doctrine.”
“If, as the County contended at oral argument, all predictive speech were inherently deceptive, most religious prophesy, financial prognostication, and medical diagnosis would fall outside the scope of constitutional protection. Cf. Nefedro, 996 A.2d at 858 (noting that lawyers and journalists may also make statements that turn out not to be true). The reality that much professional intercourse depends on predictions about what the future may bring suggests that categorical branding of fortune telling as unworthy of First Amendment protection for that same reason is untenable.”
This seems like very murky territory, Constitutionally speaking, and from my reading justices were aware that their decision could influence local regulations far outside Chesterfield County, Virginia. In short, they are saying that while divination can be protected speech, local governments can, in fact, tell psychics where they can set up shop, and charge special taxes to regulate them. This is unfortunate, because places like Chesterfield use their regulations to create subcultural “red light districts” part of a growing trend to reported on by news organizations like Time Magazine and the BBC.
“But in an increasing number of areas, officials are seeking to crack down on fraud and gain control of a growing industry. As of this month, every fortune-teller in the city of Warren, Michigan must have a licence to operate. To get this they must undergo a police background check, have their fingerprints taken and pay an annual fee of $160. [...] Measures introduced include police interviews, background checks, registration fees, the random inspections of premises and a cap on the number of fortune tellers allowed to operate in a given geographical area.”
So what’s to be done? Well, the 4th Circuit does point to a couple possibilities. First, you may be exempt from regulations if your divination is done as part of a religious ritual and not simply as part of a way of life.
Cognizant that defining the borders between the personal and philosophical on one side, and the religious on the other ”present[s] a most delicate question,” id. at 215, we conclude that Moore-King’s beliefs more closely resemble personal and philosophical choices consistent with a way of life, not deep religious convictions shared by an organized group deserving of constitutional solicitude. Yoder teaches that Moore-King must offer some organizing principle or authority other than herself that prescribes her religious convictions, as to allow otherwise would threaten “the very concept of ordered liberty.” Yet Moore-King forswears such a view when she declares that instead of following any particular religion or organized recognized faith, she “pretty much goes with [her] inner flow, and that seems to work best.”
So, for instance, a follower of Kemetic Orthodoxy who provided divination to clients from within that tradition’s belief system may be exempt. Likewise, followers of Vodou or Santeria who are operating within a explicitly religious milieu could also challenge regulations telling them where to set up a church or temple that also provided divination services to the public. For those not invested within an established and recognized religious model, the judges suggest that a national accreditation board that oversees the ethical behavior of its membership could protect a psychic reader from “additional regulatory requirements.”
With respect to an occupation such as fortune telling where no accrediting institution like a board of law examiners or medical practitioners exists, a legislature may reasonably determine that additional regulatory requirements are necessary.”
Such a board would, of course, have to then challenge local regulations, arguing that they place unnecessary regulations and limitations on their profession (because they self-regulate). So an uphill climb, to be sure, especially considering the rather independent nature of many psychic practitioners.
For those of us who practice religions that incorporate divination, and sometimes selling divination services to individuals outside our faith traditions, we need to pay attention to decisions like this one. Local town and country governments may well see Chesterfield as a model for how to regulate psychics, and so we need to understand what the limitations, and opportunities to challenge those limitations, are. This is probably the end of “Psychic Sophie’s” legal journey on the matter, but I doubt it will be the last case to challenge zoning and regulatory ordinances regarding predictive services.
For my run-down of the Psychic Sophie saga up to this point, see my post from 2011.