Legal brief in Nefedro v. Montgomery County
***MEDIA RELEASE***
Divining the First Amendment’s Future: Maryland ACLU Defends Right to Engage in Fortunetelling in Montgomery County
FOR IMMEDIATE RELEASE
July 9, 2009
CONTACT: Meredith Curtis, ACLU of Maryland, 410-889-8555; media@aclu-md.org
BETHESDA – In a case involving important rights protected by the First Amendment to the U.S. Constitution, the American Civil Liberties Union of Maryland today joined Montgomery County native Nick Nefredo in appealing a County ban on fortunetelling in Montgomery County.
“This case is not just about fortunetellers, but the future of the First Amendment in Montgomery County,” said Ajmel Quereshi, an attorney and Skadden Fellow with the ACLU of Maryland. “The government cannot decide to ban certain kinds of speech merely because it finds them distasteful or disagreeable.”
The challenged section of the Montgomery County Code provides that “every person who shall demand or accept any remuneration or gratuity for forecasting or foretelling or for pretending to forecast or foretell the future by card, [or] palm reading … shall be subject to punishment.” Nefredo, who was denied a license to open a fortunetelling business, challenged the law in May of 2008, alleging that the statute violated the First Amendment and similar protections in the Maryland Declaration of Rights.
The case was originally filed on Nefedro’s behalf by attorney Edward Amourgis of Edwards Phillip Amourgis, PC.
While acknowledging that fortunetelling is protected speech, the Circuit Court nevertheless upheld that the law as constitutional. Taking issue with this ruling, the ACLU joined Amourgis and Nefredo in challenging the law on appeal. Working on the case with Amourgis and Quereshi is ACLU of Maryland attorney and legal director Deborah Jeon.
Contrary to the ruling of the Circuit Court in this case, courts across the country have consistently held that fortunetelling is protected speech, and restrictions on it, like the Montgomery County law, are equivalent to absolute bans and therefore unconstitutional. In addition, the Supreme Court has held repeatedly that merely because speech is for profit does not reduce the level of protection it is due.
In defending the law in the Circuit Court, the County argued that it is a legitimate exercise of police power, aimed at preventing fraud. While the interest in preventing fraud is legitimate, the County already has a law accomplishing that goal. A separate provision of the County Code prohibits persons from intending to or engaging in fraud in any consumer transaction. Accordingly, the ban’s only effect is to prevent individuals from engaging in constitutionally protected activity.
Alternatively, the County contended that the law does not affect First Amendment activity because it only prohibits the receipt of payment for fortunetelling, not the activity itself. In addition, the county argues that any speech affected is commercial speech and thus, due less protection. The U.S. Supreme Court and the Maryland Court of Appeals have rejected both arguments.
###