explaining that when people who “believe they possess the power to predict what has not yet come to pass ... impart their beliefs to others, they are not acting fraudulently; they are communicating opinions which, however dubious, are unquestionably protected by the Constitution”
How later courts described this case
- explaining that when people who “believe they possess the power to predict what has not yet come to pass ... impart their beliefs to others, they are not acting fraudulently; they are communicating opinions which, however dubious, are unquestionably protected by the Constitution”
- interpreting article first, § 2, of the California constitution which provides, “[e]very person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right”
- "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."
- “[S]ome 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.”
Written by the judges who cited it.
Later courts went against this
Disapproved on other grounds by Kasky v. Nike, Inc., 27 Cal. 4th 939 (2002)
39 Cal.3d 501, 513 (Spiritual), disapproved of on other grounds as stated in Kasky v. Nike, Inc. (2002) 27 Cal.4th 939, 968
Disapproved by Kasky v. Nike, Inc., 119 Cal. Rptr. 2d 296 (2003)
We now disapprove as ill-considered dicta two statements of this court in Spiritual Psychic Science Church v. City of Azusa (1985) 39 Cal.3d 501 [217 Cal.Rptr. 225, 703 P.2d 1119].
The opinion
LUCAS, J., Concurring and Dissenting.
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 *521 prophecy by a minister or preacher paid by his congregation to give sermons. In its commendable zeal to list every possible kind of practitioner of the various “occult arts,” the city unfortunately included some persons whose practices are not likely to result in defrauding the public.
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 author *522 ities regarding the fraud. In addition, the availability of a possible criminal sanction would be of little solace to an Azusa widow bilked of her life savings by a necromancer or crystalgazer who had the “foresight” to take early leave.
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.