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Fortune-telling for pay is a misdemeanor in New York State if "he claims or pretends to tell fortunes, or holds himself out as being able, by claimed or pretended use of occult powers, to answer questions or give advice on personal matters or to exorcise, influence or affect evil spirits or curses; except that this section does not apply to a person who engages in the aforedescribed conduct as part of a show or exhibition solely for the purpose of entertainment or amusement." (Penal Law, section 165.35.)

Put aside cases in which the First Amendment religious defense (which doesn't apply to "claims or pretends to tell fortunes") or the entertainment/amusement exemption would be controlling.

Is a contracted business consultant, a salaried academic futurist, a serious (not for entertainment or amusement) war game player who's in the military and thus paid, a buddy for whom you bought a few drinks who predicts the outcome of a game on TV, an investment advisor on commission so you'll make a fortune, an insurance company accepting premiums, a NASA staff astronomer who predicts that the sun will rise tomorrow, a staff TV weather forecaster who predicts that it won't because a morning thunderstorm will block the view, a Roma (formerly called a Gypsy) who assures you that you'll find love soon, a salaried corporate executive who assesses upcoming sales or expenses, or a secretary on wages who predicts that the mailed letter will be delivered in two days subject to imprisonment for up to 3 months?

If I predict either nonenforcement or that the state would have to build a fleet of prisons, would I have to do hard labor just for that prediction?

Accenture is a consulting firm with nearly half a million employees worldwide, a NY office, and a market capitalization (stock price per share times number of shares outstanding) of over $100 billion. I think they predict the future for a lot of clients. For most of those clients, a client's executive who liaises with Accenture probably turns to other execs and predicts their company's future ("growth!"). There's gotta be at least a thousand execs ready for the pokey today.

I don't have the enactment date or any judicial interpretations handy, but I guess this was meant to regulate the Roma. They're around and, judging from storefronts, they do a good bit of business, but I don't think the type of economic crime they were known for decades ago is much of a problem anymore, since I don't see warnings about it.

Does the First Amendment speech/press defense wipe this out for everyone, not just the religious?

  • There's an extended discussion of this law and some recent cases at theatlantic.com/business/archive/2014/11/… – Nate Eldredge Jun 17 at 17:42
  • Leaving aside the New Age occult stuff, I’m pretty sure that there are Charismatic Christian churches who do all of these things every Sunday, who would definitely be protected by the First Amendment. – nick012000 Jun 18 at 1:16
  • This is an anti-grifter law. You can't take the words of a law and try to extrapolate them to other circumstances. Laws are interpreted by humans and generally humans know what the law is for. The human side is subject to abuse, and over-reach is controlled by legislatures in the US. – Tiger Guy Jun 18 at 16:24
  • (1) The Atlantic shows that fraud must be part of the fortune-teller's intent. None of my examples include fraud; the war game could but courts won't touch that one. I should have included a fee for the Roma; still not fraud. (2) Applying law to facts requires (in the U.S.) reliance on the plain words; only if the plain words can't be clearly applied does legislative intent or purpose get considered. Overbreadth and vagueness are also addressed by courts ass Constitutional issues. – Nick Jun 19 at 15:36
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Is a contracted business consultant, a salaried academic futurist, a serious (not for entertainment or amusement) war game player who's in the military and thus paid, a buddy for whom you bought a few drinks who predicts the outcome of a game on TV, an investment advisor on commission so you'll make a fortune, an insurance company accepting premiums, a NASA staff astronomer who predicts that the sun will rise tomorrow, a staff TV weather forecaster who predicts that it won't because a morning thunderstorm will block the view, a Roma (formerly called a Gypsy) who assures you that you'll find love soon, a salaried corporate executive who assesses upcoming sales or expenses, or a secretary on wages who predicts that the mailed letter will be delivered in two days subject to imprisonment for up to 3 months?

Those don't meet the law as quoted, in that they don't use "occult powers" to predict the future. Most of those are based on statistics, and are extended fields using real-world data to predict the likelihood of future events.

Does the First Amendment speech/press defense wipe this out for everyone, not just the religious?

First amendment rights don't give you free reign to spout anything you want, which is a common misconception of your "first amendment" rights. People think that the first amendment allows them to say whatever they want, whenever they want, for whatever reason they want, and that isn't true. Shouting "fire" in a crowded theater would not be "free speech", just as bomb threats, hate speech, and false alarms are not "protected" under the first amendment.

Specifically, the first amendment does not cover speech that would result in a fraud, or "false statements of fact" (see Gertz v. Robert Welch Inc.), which is where the first amendment breaks down in the case of fortune tellers, specifically "knowingly false statements of fact".

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  • The statute as quoted says "or", so that "claims or pretends to tell fortunes" is unrelated to "occult powers". And the First Amendment does not allow a truth test except in some cases, e.g., defamation: Times v. Sullivan; also Constitution Annotated (Library of Congress). – Nick Jun 19 at 15:40
  • I don't think you're reading that right... it's "pretends to tell fortunes or holds himself out as being able to, by claimed or pretended use of occult powers", the "or" is joining "pretends to tell fortunes or holds himself out", the statute you say is specific to telling fortunes using occult powers and is very much related (as in, limited to). – Ron Beyer Jun 19 at 15:52
  • No, the comma before the "or" and the form "holds" not being "hold" separate the reference to the occult from the prior clause. The form "hold" would be parallel with "tell" but "holds" is parallel with "claims or pretends". The clause on the occult modifies "being able", not the "tell fortunes" clause. – Nick Jun 22 at 17:09

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