Folks in the government seem to believe that government service is magic and transformative. They tend to view the citizenry they rule as made up of imbeciles and rubes who can't be trusted to think for themselves. Yet even though they themselves are uplifted from that same crowd of rubes, they think that their governmental position qualifies them to sort out what folks should be buying and doing and saying from what they shouldn't. Is the electoral process mystical? Does cronyism imbue its beneficiaries with some dark art? Does civil service stamp a lightening-bolt scar on your forehead? I can't say. When I was with the government, my feelings of superiority were premised on callow youth and sheltered upbringing, not upon my government salary. I must be a born muggle.
So if government actors so clearly believe in magic, why are they so hostile to it? That's what Rachel J. Adams, doing business as "Readings By Faith," wanted to know. Court documents describe Rachel thus:
Plaintiff claims that she was born with the ability to “understand and appreciate Tarot cards1, telling of futures, psychic abilities and palmistry.” She practices card reading, fortune telling, telling of futures, and palmistry in Alexandria.
I left out the footnote, in which Magistrate Judge James Kirk (James D. Kirk, sorry) dryly notes "Palmistry is the art or practice of reading a person’s character or future from the markings on his palms" — as in "this person is letting me read his palm, which tells me he is of a character to give me money."
Anyway, the City of Alexandria takes a dim view of people like Rachel, and has outlawed her profession in its Code of Ordinances, §15-127:
It shall be unlawful for any person to engage in the business or practice of palmistry, card reading, astrology, fortune-telling, phrenology, mediums or activities of a similar nature within the city, regardless of whether a fee is charged directly or indirectly, or whether the services are rendered without a charge.
Rachel Adams thought this was unfair. So she sued in the United States District Court for the Western District of Louisiana, asserting that the Alexandria City Code violated her First Amendment rights to read palms and tell futures and thus-and-such. Last week, she won.
Magistrate Judge Kirk agreed that the ban violated her First Amendment rights, finding that the ordinance was not a mere commercial regulation but a content-based limitation on a class of speech. Magistrate Kirk's recommendations show a level of skepticism about the role of government and the wisdom of its actors suggesting that he's not a magical thinker:
Based on its own clairvoyance, the City has decreed in brief that it is impossible to predict the future, and contends the business of fortune-telling is a fraud and is inherently deceptive. Ignoring the possibility that, for many people, engaging a fortune-teller could be just for fun–a novelty and a form of entertainment like casino gambling or trying to throw the softball through the rings to win the big bear on the top shelf at the fair6–the City argues that prohibiting fortune-telling is necessary in order to prevent fraud and misleading the public. It suggests, without evidence, that the nature of plaintiff’s business creates the incentive to give false information to her clients “in the form of brighter futures than they might have in reality7.” Of course, a theoretical incentive to cheat could be said of almost every, if not every, for-profit business.
The City suggests that “fortune-tellers have no demonstrable facts upon which to base their predictions.” But, as alluded to by Judge Melançon, neither did Columbus, (at least according to his detractors at the time) when he was adamant that the world was round, when many believed the world was, in fact, flat. Had a group of all-knowing elders passed an ordinance then proscribing his beliefs, perhaps we would all still be afraid to take a step for fear of stepping off the precipice and falling to infinity.
The danger of the government deciding what is true and not true, real and unreal, should be obvious. For example, some might say that a belief in God or in a particular religion, for example, or in the “Book of Revelations”8 is not supported by demonstrable facts. Books that repeat the predictions of Nostradamus and the daily newspaper horoscope could be banned under the City’s reasoning.
If there is to be progress for mankind, men and women must be allowed to dream, imagine, and be visionaries for the future even if there are then no “demonstrable facts” to support their fantasies. And they should be able to share their dreams, imaginations and visions with others free of government interference. While some of those who sometimes predict the future can be said to base their prognostications on education, training and experience–doctors and insurance companies estimating how long someone might live, auto mechanics opining as to how long your brakes will last, even lawyers predicting a jury’s likely verdict– there should be no government prohibition of those with fewer facts, gazing into the future and voicing their beliefs as well. To apply the ordinance literally would outlaw every “amateur psychiatrist, parlor sage and barstool philosopher9” in Alexandria who dares to suggest to another what the future may hold.
My use of allegory and analogy is intended to demonstrate why we cannot afford to allow government to squelch free thought and speech without a compelling interest, and why even a fortune-teller’s speech must be protected. For a government to believe that it knows all that is true and real, no matter how obvious it thinks it is, is arrogance, pure and simple. Our Constitution protects us from such government oppression.
I like the cut of this Kirk fellow's jib.
In so ruling, Magistrate Judge Kirk rejected the City of Alexandria's breathtakingly broad rationale for censorship:
When she tells clients that she can predict future events she is engaging in inherently deceptive speech. It is unreasonable for her to insist that she might know what the future holds. The City of Alexandria has the right to enact ordinances prohibiting misleading or deceptive statements. By its very nature a prediction of the future is misleading or deceptive.
United States District Judge Dee D. Drell approved Magistrate Judge Kirk's recommendations and entered judgment, pausing only long enough to expand Kirk's discussion of the history of tarot cards and to note dryly that fortune-telling proliferates in New Orleans "apparently without incident."
Just as well. It's all well and good for government actors to believe they are magic. But imagine the chaos that would ensue if they could deny us a little magic in our lives — the magic of self-deception. Could Ed Hardy sell t-shirts if it couldn't convey the provably false notion that wearing one will make you seem cool, rather than making you seem like a risible touchhole? Could alcohol distillers sell their wares without suggesting that drinking will make you more attractive to potential mates, rather than admitting it merely makes everyone involved in mating cease to give a shit? Could cars be sold at all? Would it even be possible to refer to the Fall network television lineup?
Some things, like the truth, were simply not meant to be known by man.
Last 5 posts by Ken White
- RIP Abe Doe - October 21st, 2016
- Lawsplainer: The Ninth Circuit and Compelled Speech About Abortion - October 17th, 2016
- Thanks and Congrats To Dhillon Law Group For Important Pro-Bono Anti-SLAPP Win - October 10th, 2016
- Hillary Clinton, the Sixth Amendment, and Legal Ethics - October 10th, 2016
- FIRE Attacks Northern Michigan University's Shocking, Wanton Rule Against Students Sharing Suicidal Thoughts - September 22nd, 2016