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Karnak predicts: Fortune teller can ply his trade

I place fortune tellers in the same category as those football sharpies who claim they can give bettors a guaranteed win for that big college football game.

If they’re so good at predicting the future, why aren’t they enjoying the good life on the Riviera?

I mean, if they really do have great powers of analysis (in the case of the football touts) or clairvoyance (in the case of the fortune tellers), why do they need to scam some poor, gullible yokel out of a few dollars he can ill afford?

If I was a fortune teller who truly had “the gift,” it seems to me a few strategic investments in pork belly futures would get me that mansion in the Hamptons, rubbing elbows with celebs like Carrot Top.

Courts typically have viewed fortune telling for a fee as a fraudulent enterprise, like I do.

So being a mere mortal, unable to see the future, I was dumbfounded when last week one state high court granted a fortune teller the full protection of the First Amendment.

The case involved Nick Nefedro.

Nefedro tells fortunes for a fee in several locations across the country. He wanted to set up business in Montgomery County, Maryland.

In furtherance of that desire, Nefedro allegedly leased a store, furnished it, and placed a sign in his storefront announcing that he would soon be open for business.

Nefedro may be great at reading the future, but apparently he has trouble reading local ordinances.

You see, Montgomery County has an ordinance that specifically prohibits the acceptance of remuneration for the performance of fortune telling.

So when Nefedro applied for a business license, the Montgomery County Licensing Department said no.

Now, it may be hard for Nefedro to explain how he, as a fortune teller, could have been taken aback by this development.

In any event, in 2008 he sued claiming the ordinance violated his right to free speech under the First Amendment.

The state circuit court upheld the constitutionality of ordinance.

But on Thursday, the Maryland Court of Appeals, which is the state’s highest court, vindicated Nefedro by holding that fortune telling is protected by the First Amendment.

Montgomery County argued that fortune telling is “inherently fraudulent” and therefore isn’t protected speech.

The Maryland high court, perhaps under Nefedro’s spell, concluded that fortune telling for a fee must be treated as legitimate speech.

“While we recognize that some fortunetellers may make fraudulent statements, just as some lawyers or journalists may, we see nothing in the record to suggest that fortunetelling always involves fraudulent statements.

“Indeed, fortunetellers, like magicians or horoscope writers, are able to provide entertainment to their customers or some other benefit that does not deceive those who receive their speech,” the court said. (Nefedro v. Montgomery County)

Montgomery County argued to no avail that, even if fortune telling is protected under the First Amendment, its ordinance was a constitutional regulation of commercial speech. 

The court, however, rejected the notion that fortune telling is commercial speech.

It explained that the “purpose of fortunetelling is not to propose a commercial transaction, nor is it solely related to the economic interests of the speaker. The purpose of fortunetelling is instead to provide some other benefit to the individuals involved, whether entertainment or information that sheds light on future events. 

“This is true even though the fortuneteller may receive money in exchange for his or her services; the fact that there is an economic motivation for speech does not transform non-commercial speech into commercial speech.”

As a fortune teller, Nefedro probably knew this was how it would end all along.

So that must explain why way back in 2008 he so confidently started setting up his business.

Perhaps he can tell us whether Montgomery County will appeal to the U.S. Supreme Court.

Montgomery County apparently doesn’t employ fortune tellers, so it doesn’t have an answer for that question just yet.

County spokesman Patrick Lacefield in a clever play of words told The Washington Post that he doesn’t have a “crystal ball,” so he doesn’t know if the county will appeal.

- Pat Murphy

patrick.murphy@lawyersusaonline.com

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