Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Thursday, December 6, 2012

The Tale of Psychic Sophie, Part II

Psychic Sophie, as I mentioned in Part I, appealed the district court's unfavorable disposition of her case to the Fourth Circuit U.S. Court of Appeals, which held oral argument on it Tuesday.  ChiefJudge Traxler, Judge Wilkinson, and Judge Duncan made up the panel.  Here's a news report on the argument.  A couple of highlights.

First, in response to an inquiry about whether predicting the future is "inherently deceptive" (and therefore should not receive constitutional protection), counsel for the defendant County said, "Yes, sir, it is."  To which CJ Traxler responded, "How would you characterize the Book of Revelation?"  Counsel for the plaintiff seems to have argued that predicting the future is not "inherently" deceptive provided that the prognosticator "sincerely believes" the prediction or does not believe that he is being deceptive.  Does the deceptiveness of a prediction of the future depend on the speaker's subjective belief as to its truthfulness and/or his intent to deceive?  I wouldn't think so, but I'm not a free speech maven.  But I suppose one might have replied that predictions of the future are not "inherently" deceptive; they are only contingently true (or false) -- the contingency being their (dis-)confirmation on the appointed day.  We're still waiting on Revelation.  On the other hand, Montaigne, in his essay, "On Prognostication," doesn't see what all the fuss is about: "[A]lthough there still remain among us certain methods of divination, by the stars, by spirits, by ghosts, by dreams, and otherwise -- a notable example of the senseless curiosity of our nature, occupying itself with future matters, as if it had not enough to do in digesting those at hand --.... It is no advantage to know the future; for it is a wretched thing to suffer suspense all to no purpose[.]"

Second, Judge Duncan was interested in the question of whether Psychic Sophie's business and belief system were "religious" or instead a "way of life."  But Judge Wilkinson seemed dubious: "If what she's expressed is a religion, then anything and everything is a religion."  Kevin Walsh quite rightly suggested to me that skepticism about astrology has a distinguished pedigree dating back at least to St. Augustine.  From Book IV, Chapter 3 of the Confessions:

There was in those days a wise man, very skillful in medicine, and much renowned therein, who had with his own proconsular hand put the Agonistic garland upon my distempered head, not, though, as a physician; for this disease Thou alone healest, who resistest the proud, and givest grace to the humble. But didst Thou fail me even by that old man, or forbear from healing my soul? For when I had become more familiar with him, and hung assiduously and fixedly on his conversation (for though couched in simple language, it was replete with vivacity, life, and earnestness), when he had perceived from my discourse that I was given to books of the horoscope-casters, he, in a kind and fatherly manner, advised me to throw them away, and not vainly bestow the care and labour necessary for useful things upon these vanities; saying that he himself in his earlier years had studied that art with a view to gaining his living by following it as a profession, and that, as he had understood Hippocrates, he would soon have understood this, and yet he had given it up, and followed medicine, for no other reason than that he discovered it to be utterly false, and he, being a man of character, would not gain his living by beguiling people.

Looking forward to the panel's decision.

UPDATE: A reader and speech expert sends in these interesting comments on the speech side of this case:

These issues quickly get subtle, beyond my capacity to jurisprudentially slice and dice with any authority.  I’m put in mind of another Fourth Circuit case, the horrifying Paladin Press/Rice/”Hit Man” book sale/free speech case. 

In some, but hardly all, psychic/astrology/legal and illegal lottery cases, as well as in Rice, what’s being bought and sold is in part the opportunity to experience a realistically sustainable simulacrum, a pleasant illusion, or a fantasy of one sort or another which would not be realistically available without the transaction, and the payment associated therewith. 

From the psychic, one may be buying in part, and with one degree or another of conscious recognition, the simulacrum of a caring friend or ally.  From the lottery sales clerk, one may be buying the realistic opportunity to pleasantly fantasize about what one would or would not do in radically changed economic circumstances (the actual purchase of the ticket may strengthen the vividness or the intensity of one’s fantasizing).  In buying the Hit Man book, one “creatively visualizes” oneself as self-reliant, less vulnerable, a noir anti-hero. 

But part of the subtlety is that buyer acknowledges all these things at one level, yet for the transaction to make economic sense, there must remain enough distance from those acknowledgements to sustain a sufficiently vivid illusion.  The Hit Man book, a virtual instruction manual on committing murder, actually had a disclaimer, which some readers might have, in character, cynically shrugged off, or crushed like a cigarette stub, again to one degree or another, as pointless verbiage required by the squares of the world. 

And if all this is so, it becomes harder to distinguish these activities from an escapist movie, or the shoes associated with one’s sports hero, or even a modestly effective, if transient, mood-enhancing drug.


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Isn't fortune telling an important part of some non-Western religions? I know next to nothing about Zoroastrianism, but the understanding I have gotten is that its practices involve divination.

That doesn't help Psychic Sophie under these facts, but it does suggest that fortune telling could be entitled to first-amendment protections in some situations.

Posted by: Titus | Dec 6, 2012 3:37:29 PM

There is an entire branch of sociology and psychology dedicated to studying religion and spirituality and what consitutes a religion from a social science perspective. It seems to me the court might want to avail itself of some of this work.

Posted by: Greg Popcak | Dec 6, 2012 8:32:28 PM

"Isn't fortune telling an important part of some non-Western religions? I know next to nothing about Zoroastrianism, but the understanding I have gotten is that its practices involve divination."

In Tibetan Buddhism, there is heavy use of various practices of divination by lamas. It is generally not used to tell someone their future or otherwise make predictions the way a fortune teller does. Rather, more commonly, it would be used to determine e.g., what particular spiritual practices it might be beneficial for the someone to engage in, or whether a particular coures of action would be beneficial for the person. In my experience (during the years I was a Buddhist) the person never was told what the divination revealed, only what the lama recommended/instructed based on the divination.

Posted by: Susan Stabile | Dec 7, 2012 8:00:26 AM

Thanks, Susan. That's interesting. From my reading of the case, Psychic Sophie also claims that she does not predict the future -- this is part of the reason that she resists the label of fortune-teller ascribed to her by the County. Instead, she said that she uses what she knows to advise people about various issues of importance to them. The nature of the methodology does not seem too different from what you describe, though the methods themselves are.

Posted by: Marc DeGirolami | Dec 7, 2012 12:57:56 PM

Interesting case.

The previous post noted that the specific person was held not to be claiming to be acting out of religious belief though divining the future clearly has long had religious aspects. So, regulation in this area can clearly affect religious practice. The free speech argument, particularly given the other people in the area where she did business, also seems strong enough.

Trying to say fortune telling and the like is "deceptive" given the nature of various religious practices and beliefs is problematic. I'm inclined to be suspicious of selectively targeting fortune telling as being a form of religious favoritism. Possible Santeria-like claim?

Posted by: Joe | Dec 8, 2012 11:06:03 AM