Denver Public Safety Committee Presentation

The Issue of Unconstitutionality:
Denver’s Violation of the First Amendment Protection of Free Speech
Denver Municipal Code, Section 38, Paragraph 100


Cathy Reynolds, Chair
Wednesday, September 13, 2000, 9:30 AM

Prepared by Jayj Jacobs and Carleen Thom

The issue on the agenda today involves Denver Municipal Code, Section 38, Paragraph 100, as follows:

[Sec. 38-100. Fortune telling.

It shall be unlawful for any person to ask or receive any compensation, gratuity or reward for practicing fortune telling, palmistry or clairvoyance; provided, however, that the provisions of this section as it relates to clairvoyance shall not be applicable to bona fide participation in religious worship of any legally constituted religious body which has been exempted by the United States Treasury Department under the Internal Revenue Code from paying federal income tax.

(Code 1950, Section 841.8)]

This is an archaic law (hereinafter referred to as “DMC § 38-100”) which has existed in the Denver Municipal Code for 27 years, but its basis is prejudice, and stereotypes that are many decades, even centuries, old. The incident that has called our attention to this law was detailed in an August 22, 2000, Denver Post article, which described how the Denver City Police raided three metaphysical bookstores on Colfax Street in a failed attempt to arrest offenders.

We respectfully demand that the City and County of Denver submit legislation immediately for the complete repeal of DMC § 38-100. Revision or limitation cannot save the ordinance; it must be stricken from the Municipal Code. The following enumerated items will illustrate our position on the matter:

1. DMC § 38-100 is content-based restriction of speech, prohibited by the First Amendment to the Constitution of the United States. It bans certain opinions from the Marketplace of Ideas, from the discourse that shapes the society of a free people, by making it unlawful to charge for those professional insights that have a metaphysical or psychic foundation. That the practitioners charge for their interpretations does not reduce those opinions to mere ‘Commercial Speech’ – Thomas Paine, the father of the American Revolution, charged for copies of “Common Sense.” Speech may be sold, and still be “Fully Protected.”

2. The ordinance is vague, even misleading. Fortune telling is not properly defined. Is it crystal ball reading, as illustrated in many cartoons? Is it card reading? If it refers to card reading, then is it tarot cards or playing cards? Astrology is sometimes mislabeled fortune telling; is it also prohibited – by false definition? Does the language of the ordinance mean any prediction of the future, such as economic, political or meteorological forecasts? Is only the forecasting of “fortune” prohibited? What about the forecasting of “fate”? Fortune and fate are very different concepts from a philosophical perspective. How can a reasonable police officer or any reasonable person determine from the language of DMC § 38-100, which of these behaviors is prohibited?

3. In addition to being vague, the ordinance is overly selective. It singles out palmistry and clairvoyance. Does Denver intend to proscribe only those mantic arts and endorse in their place chieromancy, phrenology, clairaudience, clairsentience, and psychometry? Does Denver endorse all other psychic, metaphysical disciplines and counseling practices by virtue of their specific exclusion in DMC § 38-100? In fact, the Body & Soul Conference of 1998 was held in Denver at the Adams Mark Hotel. Twenty-five hundred people attended the highly publicized event, pouring thousands of dollars into Denver’s economy. They also paid money to attend James Van Praag’s demonstration in which he communicates with “departed souls.” Since Denver failed to send in the SWAT team to incapacitate him, should we then assume that Denver does indeed endorse Mr. Van Praag’s particular version of spiritual advice for compensation?

4. The City and County of Denver has limited resources for fighting serious and violent crime. The harassment of metaphysical counselors, spiritual advisors, and other similarly situated persons is an unacceptable expenditure of the city’s time, funds and other resources.

5. There is no compelling State interest in suppressing speech of this type. Denver has not shown — by any scientific method or by any socially important way — that the practice of metaphysical counselors (which is nothing more than speaking their opinion) materially harms its citizens.

6. Tax-paying, voting, property-owning citizens desire the services of astrologers and psychics. Although many metaphysical counselors are ethically bound to protect the privacy of their clients, they will tell you that their clients consist of politicians, attorneys, judges, doctors, scientists (yes, scientists), teachers, brokers, corporate executives and other people from so-called conservative professions and all walks of life. We have no doubt that there may be people on this committee or in this room who have sought the services of the very counselors that Denver seeks to incarcerate. These consumers require the same Right of Association and protection of Free Speech and willingly pay fees for these services at rates that are fairly determined in the market. The national media has reported that 46% of the people in this country believe that the practice of astrology has merit. That translates to well over 150 million possible consumers. There are more believers than there are voters.

7. Other remedies, Constitutional ones, exist to combat the alleged ills that this poorly crafted ordinance is presumably designed to address. Laws that infringe on speech must be targeted and narrowly focused. They must be the “least drastic means” and have the minimum possible impact on speech. This ordinance fails that Supreme Court mandated test, and is thereby invalid and void.

8. Mere “police preference” for a law cannot be asserted to trample the right to free speech and open discourse. The expression of opinion, including metaphysical opinion for compensation or otherwise, is clearly protected speech. Law enforcement professionals must enforce the law when a violation has actually occurred. They may not exert “prior restraint” through laws that address speech, especially when that speech may only be peripherally related or inferred to be associated with crimes of fraud, misrepresentation or larceny.

9. The government, at any level, has no business inserting itself into the marketplace of ideas — thereby endorsing some ideas, arts, and philosophies while denigrating others. The TV personality, Dr. Laura, has maligned entire classes of persons in this country, freely conducts her radio and television enterprises, and is well-paid for her opinions. The Nazi Party may demonstrate, hold seminars and collect money for its activities and do so with impunity. If their offensive speech is protected then certainly our uncommon speech is also protected. Denver cannot limit its citizens to paying for psychological counseling from Freudian psychologists and not allow Jungian ones. Denver may not permit the practice of psychology but then categorically deny the practice of astrology, which Jung called “the psychological knowledge of antiquity.” Denver may not order the legality of Democratic consultants and yet prohibit Republican consultants from charging fees merely because Denver believes Republican opinions are false. The First Amendment specifically prohibits the City and County of Denver from legislating its biases and thereby muzzling its citizens.

10. You all swore an oath to uphold and defend the Constitution of the United States of America, which obviously incorporates the Bill of Rights. We trust our elected officials to do so. That oath requires that you not let stand, and immediately repeal, an ordinance, DMC § 38- 100, which is in violation of our Constitution, and which endangers our basic protected freedoms.

Respectfully submitted
Carleen Thom

For herself, and for Jayj Jacobs, Chair of the Legal Information Committee, Association For Astrological Networking (AFAN)

With the request that this document be entered into the minutes of this meeting of the Public Safety and Personnel Committee and into the public record.