Azusa Municipal Code section 8.52.060 (hereinafter the ordinance) provides that "No person shall practice or profess to practice or engage in the business or art of astrology, augury, card or tea reading, cartomancy, clairvoyance, crystalgazing, divination, fortune telling, hypnotism, magic, mediumship, necromancy, palmistry, phrenology, prophecy, or spiritual reading, or any similar business or art, who either solicits or receives a gift or fee or other consideration for such practice, or where admission is charged for such practice."
There is no material dispute regarding the facts. Plaintiff Spiritual Psychic Science Church of Truth, Inc. (the Church) was incorporated in 1976 as a tax-exempt nonprofit corporation. Plaintiff Fatima Stevens acted as its duly ordained minister. In June 1979 the Church was granted a business license by defendant City of Azusa (the City). The license, issued after Stevens had assured the city attorney that it would be used only to conduct religious workshops and counselling and not to practice fortunetelling, listed as the Church's business "spiritual, Palm Reading." Stevens had been informed by the attorney that fortunetelling and related activities, when practiced for consideration, would be unlawful under the ordinance, but that if these activities were pursued as a religious ritual the ordinance would not be violated. Stevens declared she had to charge a fee for telling fortunes because that was the source of her livelihood.
In August 1979 Stevens placed an advertisement in a local newspaper announcing that fortunes were being told at her place of business. There is some uncertainty in the record as to whether the Church's business license expired thereafter and was not renewed by the City or whether the City cancelled the license outright. In either event, the Church lost its license. In addition, Stevens was threatened with the possibility of prosecution under the ordinance. Therefore, the Church and Stevens filed suit against the City in 1981 to obtain an injunction enjoining defendant "from conducting religious spiritual services on said property [sic]."
I. Commercial Activity or Speech?
The City contends the ordinance is a valid regulation of a commercial activity because it prohibits fortunetelling only for consideration. The City relies on Azusa Municipal Code section 5.21.010 et seq., which permit solicitation of general contributions for religious purposes, and specifically authorize solicitation of gifts from legitimate church members at assemblies, services or otherwise. The City asserts that Stevens may practice fortunetelling
As support for its position, the City cites In re Bartha (1976) 63 Cal.App.3d 584 [134 Cal.Rptr. 39, 91 A.L.R.3d 759]. In that case the defendant was convicted of violating Los Angeles Municipal Code section 43.30, which prohibited advertising or engaging in the telling of fortunes and related activities. The defendant insisted that she was a priestess of Wicca, the religion of witchcraft, and that the Los Angeles ordinance unconstitutionally interfered with the practice of her religion and restricted her freedom of speech. The Court of Appeal cited Los Angeles Municipal Code section 43.31, which exempts from section 43.30 any legitimate religious practices, and emphasized that the jury had been instructed that in order to convict it must find the defendant's fortunetelling to be a business, not a religious practice. Since the jury found a violation, the appellate court deemed the defendant's activity to be a business, subject to regulation: "The constitutional right to freedom of speech does not prevent the Legislature from regulating or prohibiting commercial enterprises which are harmful to the public welfare." (Id., at p. 591.)
We are unable to subscribe to Bartha's broad characterization of fortunetelling as an exclusively commercial activity, and to the theory that it therefore can be indiscriminately regulated, or, in this instance, wholly prohibited.
Fortunetelling is different. It involves the communication of a message directly from the fortuneteller to the recipient. That words are used is not critical; the key is that the words convey thoughts, opinions and, sometimes,
The conclusion in Bartha implies that to characterize an activity as merely commercial magically removes any constitutional barriers to its regulation or prohibition.
It is thus no answer to the charge that the ordinance violates the Constitution to characterize what it prohibits as commercial activity; we must still inquire whether speech is being repressed. And when, as here, speech is indeed involved, we must evaluate the constitutionality of the regulation under the stringent tests of article I, section 2, of our Constitution.
II. Commercial or Noncommercial Speech?
The City argues that even if fortunetelling can be characterized as speech, it is commercial speech which is not entitled to the same high level of protection as noncommercial speech. In order to determine the proper test by which to evaluate the ordinance under the Constitution, we must thus determine whether fortunetelling for consideration involves commercial or noncommercial speech.
There is no clearly articulated test to determine what constitutes commercial speech. Rather, phrases from certain opinions of the United States Supreme Court have been used to evaluate types of speech. Thus commercial speech has been referred to as "speech which does `no more than propose a commercial transaction'" (Va. Pharmacy Bd. v. Va. Consumer Council, supra, 425 U.S. 748, 762 [48 L.Ed.2d 346, 358], quoting from Pittsburgh Press Co. v. Human Relations Comm'n (1973) 413 U.S. 376, 385 [37 L.Ed.2d 669, 677, 93 S.Ct. 2553]), and as "expression related solely to the economic interests of the speaker and its audience." (Central Hudson Gas & Ele. Corp. v. Public Serv. Com'n (1980) 447 U.S. 557, 561 [65 L.Ed.2d 341, 348, 100 S.Ct. 2343].) The City concedes that the cases dealing with commercial speech all involve solicitation of sales and advertising — that is, speech proposing a commercial transaction. However, it urges that although fortunetelling for profit does not propose a transaction, it provides the mechanism for completing the transaction, and thus relates only to the economic interests of the parties.
This theory of commercial speech has no basis in precedent and fundamentally misconstrues the commercial-noncommercial distinction. Commercial speech cases have involved such activity as in-person solicitation by attorneys to obtain remunerative employment (Ohralik v. Ohio State Bar Assn. (1978) 436 U.S. 447 [56 L.Ed.2d 444, 98 S.Ct. 1912]), "the mere solicitation of patronage implicit in a trade name" (Friedman v. Rogers (1979) 440 U.S. 1, 11-12, fn. 10 [59 L.Ed.2d 100, 111, 99 S.Ct. 887]), and negligently untruthful advertising (People v. Superior Court (Olson) (1979) 96 Cal.App.3d 181 [157 Cal.Rptr. 628], cert. den. (1980) 446 U.S. 935 [64 L.Ed.2d 787, 100 S.Ct. 2152]). In contrast, cases held not to involve merely commercial speech have dealt with advertisements that contain factual material going beyond the proposition of a commercial transaction (Bigelow v. Virginia (1975) 421 U.S. 809 [44 L.Ed.2d 600, 95 S.Ct. 2222]), solicitation by attorneys for representation without charge in order to advance political beliefs (In re Primus (1978) 436 U.S. 412 [56 L.Ed.2d 417, 98 S.Ct. 1893]), and the sale on the streets of maps to movie stars'
The act of telling fortunes goes beyond the mere proposal of a transaction. It involves the passing of ideas and information — some valid, some questionable, some false — between the fortuneteller and the client. This exchange is unrelated to any consideration the client pays to receive the communication — the consideration is not the object of the communication. When Stevens charges a fee for fortunetelling, she sells her services, not an advertisement of her services. (See Welton v. City of Los Angeles, supra, 18 Cal.3d 497, 503 [plaintiff's street-vending of maps did not constitute advertising: she was selling printed material, not its advertisement].) If we were to accept the City's theory, a lecture for or against Marxism, abortion, nuclear power, or racial supremacy would be commercial speech if people paid an admission charge to hear it, because the lecture would complete the transaction. Such a result would be unprecedented and untenable.
III. Constitutionality of the Ordinance.
Under either rationale, fortunetelling deserves protection. First, it is impossible to say that fortunetellers impart no political message in their communications. In their vision of the future there may be a view of society as they perceive it may one day be. Such a communication conceivably could contain the spark of a political flame. Second, fortunetelling may fire the imagination and stimulate discussion of the future. That some — even a majority — may find this mode of communication distasteful, ridiculous or even corrupt is irrelevant to constitutional concerns. (Murdock v. Pennsylvania, supra, 319 U.S. 105, 115-116 [87 L.Ed. 1292, 1300]; Morris v. Municipal Court (1982) 32 Cal.3d 553, 566-567 [186 Cal.Rptr. 494, 652 P.2d 51]; Welton v. City of Los Angeles, supra, 18 Cal.3d 497, 504.) Thus any prohibition or regulation of fortunetelling must be given full scrutiny under the Constitution.
One of the most difficult questions in a free speech analysis is which test must be applied to the particular regulation and communication before the court. A helpful explanation of the United States Supreme Court's view of the matter has been suggested by one scholar: "The Supreme Court has evolved two distinct approaches to the resolution of first amendment claims; the two correspond to the two ways in which government may `abridge' speech. If a government regulation is aimed at the communicative impact of an act, ... [the] regulation is unconstitutional unless government shows that the message being suppressed poses a `clear and present danger,' constitutes a defamatory falsehood, or otherwise falls on the unprotected side of one of the lines the Court has drawn to distinguish those expressive acts privileged by the first amendment from those open to government regulation with only minimal due process scrutiny. If a government regulation is aimed at the noncommunicative impact of an act ... [the] regulation is constitutional, even as applied to expressive conduct, so long as it does not unduly constrict the flow of information and ideas. [Here] ... the `balance' between the values of freedom of expression and the government's regulatory interests is struck on a case-by-case basis, guided by whatever unifying principles may be found in past decisions." (Tribe, American Constitutional Law (1978) p. 582.)
It is unnecessary, however, for us to determine whether the ordinance is "aimed at the communicative element" of the prohibited speech, for it is unconstitutional under either test.
A. Unprotected Speech
The City contends that fortunetelling falls in a category of speech that is not entitled to free speech protection: it is within the legislative body's power to determine that fortunetelling is inherently deceptive, and when as here the legislative body has done so, the speech is not protected. The City cites Gertz v. Robert Welch, Inc., supra, 418 U.S. 323, 339-340 [41 L.Ed.2d 789, 805]: "Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas. But there is no constitutional value in false statements of fact." The City further directs our attention to In re Bartha, supra, 63 Cal.App.3d 584, 591: "The ordinance need not necessarily be limited to cases involving an actual intent to defraud. It is within the police power of the municipality and province of the legislative body to determine that the business of fortune-telling is inherently deceptive and that its regulation or prohibition is required in order to protect the gullible, superstitious, and unwary."
Fraudulent deceit, actionable as a tort, is defined in part by California Civil Code section 1710 as "1. The suggestion, as a fact, of that which is not true, by one who does not believe it to be true; [¶] 2. The assertion, as a fact, of that which is not true, by one who has no reasonable ground for believing it to be true." Predictions of the future have been characterized as expressions of opinion, not actionable unless the speaker knows the opinion
It must be conceded that many persons practicing the "art" of fortunetelling are engaging in fraudulent activity. Many fortunetellers have no belief in their powers to predict the future. If such persons obtain consideration for their services, the activity could be deemed fraudulent; their statements would be false statements of fact, for they would not be expressing what they truly believe will happen in the future. However, it is also true that some persons believe they possess the power to predict what has not yet come to pass. When such persons impart their beliefs to others, they are not acting fraudulently; they are communicating opinions which, however dubious, are unquestionably protected by the Constitution.
It must also be noted that there are many persons other than professional fortunetellers who purport to predict the future: e.g., astrology columnists in daily newspapers, economists who prognosticate interest rates and other business conditions, investment counsellors who forecast stock market trends, sportswriters and oddsmakers who predict the winners of athletic contests, horserace handicappers, pollsters who forecast election returns, and clergymen who describe the concept of a hereafter.
The City maintains it is within the legislative province to prohibit fraudulent fortunetelling. This argument, however, does not save the ordinance.
Thus the ordinance cannot be saved as a valid regulation of unprotected speech. It remains to be determined whether the ordinance is a valid regulation of something other than the communicative element of speech, with only an incidental effect on that which is protected by the Constitution.
B. The Balancing Test
At least on its face, the ordinance does not purport to be aimed at the communicative element of the speech it bans. That is, the City claims it does not prohibit the message that fortunetellers wish to convey; it seeks to prohibit only the fraud of telling fortunes with the sole intent of bilking the gullible by trading compensation for falsehoods.
The first two elements of this test provide no difficulty for the ordinance. The government may constitutionally enact laws protecting the public welfare (Schneider v. State, supra, 308 U.S. 147, 160 [84 L.Ed. 155, 164, 60 S.Ct. 146]), and the protection of the citizens from fraud is an important state interest. (See ante at p. 515.) The third element of the test, it has been said, determines what approach a court will take to the evaluation of the regulation's constitutionality, for here it must be asked whether the regulation focuses on the communicative element of the speech it prohibits. If the regulation does so focus, it will be invalidated unless the speech is unprotected. If the regulation does not so focus, the fourth step of the test must be applied. (Ely, Flag Desecration: A Case Study in the Roles of Categorization and Balancing in First Amendment Analysis (1975) 88 Harv.L.Rev. 1482, 1484, 1496-1497.)
First, we must "weigh the circumstances and ... appraise the substantiality of the reasons advanced in support of the regulation of the free enjoyment of the rights." (Schneider v. State, supra, 308 U.S. 147, 161 [84 L.Ed. 155, 165]; Dillon v. Municipal Court (1971) 4 Cal.3d 860, 869 [94 Cal.Rptr. 777, 484 P.2d 945].) The City argues that the public's substantial interest in preventing fraud outweighs the interest of an individual who wishes to express the type of communication that the ordinance bans. The ordinance constitutes only a minimal imposition on the free speech rights of fortunetellers, contends the City, for it prohibits fortunetelling only when practiced for compensation.
As we have seen, however, the fact that speech is engaged in for profit does not cause it to lose its constitutional protection. (Part I, ante.) What is more, a regulation banning certain speech only when expressed for profit cannot be dismissed as imposing but a minor restriction on that speech. In Murdock v. Pennsylvania, supra, 319 U.S. 105, the United States Supreme Court invalidated an ordinance imposing a license fee on door-to-door solicitors, including persons distributing religious information: "Those who can tax the privilege of engaging in this form of missionary evangelism can
Against the degree to which the ordinance affects speech we must balance the City's interest in regulating fraud — the asserted justification of the ordinance. But it is not simply the City's interest in banning fraud that goes into the balance. It is a balance "at the margin — that is, [a court] must balance no more than the state's interest in the added effectiveness of the chosen means against the individual interest in the use of less drastic ones." (Italics added.) (Comment, Less Drastic Means and the First Amendment (1969) 78 Yale L.J. 464, 467-468.) To determine this interest we must inquire whether less drastic means exist to prohibit such fraud.
A law prohibiting fraud in fortunetelling could be written; indeed, it exists. Penal Code section 332 provides that "Every person who by ... pretensions to fortunetelling, trick, or other means whatever ... fraudulently obtains from another person money or property of any description, shall be punished as in case of larceny of property of like value." Such a law prohibits unprotected fraudulent fortunetelling while allowing true believers to practice their art. The public goal is vindicated without unduly suppressing the exercise of constitutional rights.
It is irrelevant that punishing fraud may be less convenient than prohibiting all situations in which a potential for fraud arises. (Schneider v. State,
Thus there are methods to prevent fraudulent fortunetelling that would impose a less drastic restriction on protected speech. Any marginal interest the City may have in more complete and convenient regulation in this area by a total ban on fortunetelling for compensation is outweighed by the interest in free and open speech on all subjects. Therefore the ordinance fails both the least drastic means test and the balancing of interests tests. We must hold it unconstitutional under article I, section 2, of the California Constitution.
C. California Law
We rely on article I, section 2, of the California Constitution, which declares in part that "Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press."
The question remains whether the ordinance can be "saved" by judicial construction.
In contrast to Welton is Dillon v. Municipal Court, supra, 4 Cal.3d 860. There the City of Seaside delegated the duty of issuing parade permits to the Chamber of Commerce. We held the ordinance governing permits unconstitutional because it gave the granting official unlimited discretion. (Id., at pp. 869-870.) Further, we determined that we had "no right to add to this ordinance provisions which it obviously lacks." (Id., at p. 871.)
For the reasons stated we hold the ordinance invalid under article I, section 2, of the California Constitution.
The order is reversed.
Bird, C.J., Broussard, J., and Grodin, J., concurred.
I agree that the ordinance is overbroad. On the other hand, the First Amendment has been around for a long time, as have been state and local laws against fortunetelling and decisions upholding them. (See cases cited in In re Bartha (1976) 63 Cal.App.3d 584, 589 [134 Cal.Rptr. 39, 91 A.L.R.3d 759].) It is a fact that plaintiff cites no case which elevates fortunetelling to the same free speech pedestal as does the majority. I cannot help feeling that the core values of the First Amendment have somehow become obliterated in the court's somewhat formalistic application of precedent based on entirely different facts. In short, I am more optimistic than the majority that a constitutionally acceptable ordinance can be drafted.
Reynoso, J., concurred.
I concur in the judgment on the limited ground that Azusa's fortunetelling ordinance is unduly broad. By its terms, the ordinance could apply to (and flatly prohibit) such bona fide practices as therapeutic hypnotism by a trained professional, or religious
I dissent, however, to the majority's alternative holding that First Amendment principles would preclude the city from prohibiting such inherently deceptive and fraudulent practices as, for example, tea reading, crystalgazing, necromancy or fortunetelling for money. We may take judicial notice of the fact that such devices are routinely, if not uniformly used to bilk or fleece gullible patrons. As the majority concedes, "many persons practicing the `art' of fortunetelling are engaging in fraudulent practices," having no belief in their power to predict the future. (Ante, p. 515.) The majority suggests, however, that "some persons believe they possess the power to predict" the future (ibid.), and that the First Amendment protects their "opinions," even when they exact a fee therefor.
With due respect, the majority is far too naive in its assumption. The majority's unsubstantiated concept of the guileless seer, accepting money in exchange for bona fide attempts at prognostication, stands in direct conflict with the traditional, and much more realistic, appraisal that "the business of fortunetelling is inherently deceptive," and that "its regulation or prohibition is required in order to protect the gullible, superstitious, and unwary. [Citations.]" (In re Bartha (1976) 63 Cal.App.3d 584, 591 [134 Cal.Rptr. 39, 91 A.L.R. 3d 759].)
Like most Southern California cities, Azusa undoubtedly attracts a fair share of elderly, retired citizens who, by reason of their advanced age or infirmity, are easy prey for those who solicit a fee for such "services" as predicting the future, communicating with deceased loved ones, and so on. These citizens, typically living on limited or fixed incomes, are unfortunately often the group most easily duped yet least able to afford the consequences thereof. Just as a community can protect its citizens from their own cupidity by passing antigambling ordinances, Azusa may protect its citizens from their own gullibility by passing an antifortunetelling ordinance.
The majority's suggestion that existing criminal fraud statutes are an adequate remedy seems patently incorrect. First, such statutes probably would not afford a remedy in the absence of proof of an intent to deceive, a matter often quite difficult to establish beyond a reasonable doubt. Second, unlike a prohibition upon the practice itself, the penal laws operate only after it has occurred and the fraud discovered. Many victims of "occult" swindlers are reluctant (through embarrassment or naivety) to complain to the authorities
Balanced against the compelling interest in protecting gullible citizens from fraud, the fortuneteller's supposedly "protected" right to charge a fee for giving an "opinion" as to future events pales to insignificance. I would uphold a narrowly drawn prohibitory ordinance as against a constitutional challenge based on free speech principles.
When the term "First Amendment" is used, it is merely illustrative and employed as a shorthand reference to article I, section 2, of the California Constitution.