Freedom of Speech, Freedom of Religion, and State Regulation of Fortune Telling In the U.S. Since 1945

Christine A. Corcos, Louisiana State University Law Center, has published Seeing it Coming Since 1945: State Bans and Regulations of 'Crafty Sciences' Speech and Activity at 37 T. Jefferson L. Rev. 39 (2014). Here is the abstract.

After the Supreme Court’s decision in United States v. Ballard, Spiritualism’s adherents, like other members of minority belief systems, could qualify for the same First Amendment protections as members of mainstream religions. While Spiritualists could thus celebrate a certain level of victory, they still faced intolerance and outright persecution from some government officials and state legislatures who continued to believe that common Spiritualist practices, which included communication with the dead, divination, and in some cases, faith healing, were simply shams for frauds perpetrated on members of the public who were grieving over the loss of loved ones. In their grief, members of the public sought out Spiritualist practitioners who convinced them that their deceased relatives and friends could speak to them through Spiritualist intervention, and often with the assistance of donations to a Spiritualist church. In many cases, Spiritualist ministers did (and still do) offer assistance in the form of messages from loved ones to assist in guidance for the future.

Some prosecutors and police did not see such messages as legitimate spiritual guidance or genuine prophecy. They still labeled such communications as fortune telling. Under “rogue and vagabond” statutes, a type of disorderly person legislation enacted as early as the 1790s in the United States, fortune telling and like activities were considered fraudulent activity, not religious ministrations. The statutes defined those who carried them out as crafty sciences practitioners or “rogues and vagabonds,” not members of the clergy. However, both the ruling in Ballard and ministerial exemptions that state legislatures carved out of statutes before and after Ballard protected clergy from accusations of fraud. Beginning early in the twentieth century, but in growing numbers after the Second World War, members of minority religions could take advantage of ministerial exemptions to protect themselves from a charge of fraud, even if their activities resembled “crafty sciences practices,” if they could convince the police or the courts that they were clergy and the practices they followed were recognized by their churches. However, crafty sciences practitioners who were not members of minority religions had more difficulty in escaping fraud accusations. Even if they spoke to willing clients, even if they did not request payment for their services (and some did not, although they accepted donations), and whether they performed their services in entertainment venues or in storefronts, they ran the risk that the police might arrest them and prosecutors might bring criminal charges against them. State statutes and local ordinances that banned fortune telling, palmistry, divination, phrenology, or other crafty sciences practices offered no defense because the First Amendment did not protect such speech. Law enforcement and prosecutors tended to bring fewer complaints of outright fraud against Spiritualists after 1945, and shifted their attention to claims of fraud against others who engaged in the same kinds of practices, including fortune tellers, and by extension, palmists, clairvoyants, and astrologers. At the same time, other minority religious practitioners, emboldened by the success of the Spiritualists as well as other non-traditional groups, began to argue that they too should be able to claim the protections of the First Amendment Free Exercise Clause for practices that included divination, prophesy, and other “crafty sciences” if those practices were part of religious rituals. This Article examines those claims and government responses, in the form of bans and regulations such as zoning and licensing, and tests whether these responses are constitutional under the First Amendment.

Download the article from SSRN at the link.