Is it illegal to sell a spell online?

Question

This question is for the United States in general for online marketplaces.

Some history: Back in 2012, Ebay stopped the sale of spells, and now Etsy has also banned the sale of spells.

They have both banned several things that are not illegal to sell, but questionable.

I am not concerned about whether it is 'moral' or against a religion, but rather whether the seller and/or the site that the spell was sold on could be held liable for anything?

An assumption would be that the buyer would get some proof that the spell was performed. This could be a photo, video, skype session, or some other form of proof. The proof may be downloaded, mailed, or in person delivered.

If it is against the law, what law / regulation? I've seen several posts stating that it's against the law, but no one has mentioned an applicable law.

Also, what would be the legal difference between a spell and a prayer?

Answer 1

Selling online is unclear.

However, selling in the mail, the court has held that, based on 18 U.S.C.A. S1341 (Frauds and swindles):

Therein the weight of authority is that astrologers, conjurers, fakirs, magicians, mediums, and all variety of pretenders to supernatural power, and who assume to sell the same for money, are amenable to the criminal law of false pretenses. United States v. Calwer, 282 F. 1007 (D. Minn. 1923).

In prosecution for devising a scheme and artifice to defraud and using the mails in connection therewith, which scheme consisted of representations by defendant that he was gifted with supernatural powers, evidence was sufficient to sustain a conviction. Crane v. U.S., C.C.A.9 (Cal.) 1919, 259 F. 480, 170 C.C.A. 456

Notwithstanding constitutional provision as to religious freedom, it was an offense to pretend to believe in supernatural powers for the purpose of procuring money and to use the mails in pursuance of such purpose. New v. U.S., C.C.A.9 (Cal.) 1917, 245 F. 710, 158 C.C.A. 112, certiorari denied 38 S.Ct. 334, 246 U.S. 665, 62 L.Ed. 928.

These are mostly lower court cases (the last has a cert. denial from the Supreme Court, meaning the Supreme Court effectively upheld the lower court's decision without making it the law of the land), and both were from nearly 100 years ago. It is reasonable to assume that one would still incur liability for facilitating "Frauds and swindles" over the internet.

Answer 2

It's practically impossible to prove a negative but, Andrew's brilliant century-old find notwithstanding, I can't find any reason to believe there is a law in force against selling spells, online or otherwise. Reasons to believe this is legal:

1. As the OP points out, it is hard to imagine a legal differentiation between spells and prayers. And if you've ever gotten your name on a Catholic mailing list you'll know that you can buy prayers, masses, and maybe even still indulgences under the guise of a mainstream, IRS-recognized religion.*

2. In that same vein (and avoiding the tax and religion question): How could one legally differentiate between spells, performance art, and entertainment magic?

3. Maybe it has been a few years, but remember those 900-number "psychic hotlines?" The FCC and FTC aren't known for their sense of humor, but ads for those ran for years (perhaps thanks to a disclaimer to the effect of, "for entertainment purposes only" – a safe harbor I would imagine is just as applicable online).

4. Here's a 2011 report of a law student attempting to sell spells to fellow law students. Although roundly derided there is no suggestion from that legally astute circle that her online sales could violate any law.

One legal restraint I would expect is on spells that promise health benefits from the consumption of some substance or use of some object. The FDA has the authority regulate such health claims, and takes its responsibility quite seriously.

Outside of that, it seems likely that these days a seller could avoid any allegations of fraud or "false pretenses" if he could credibly assert that he believes in the magic he's selling.

---

*Update: Some assert this is technically untrue: that all benefits of the Catholic church are available without charge. It does, however, seem that the line can be made sufficiently blurry. E.g, if it's OK to say, "You are invited to donate $10 for this mass," I would expect online spell sellers to quickly follow suit if a law did encroach on their operation by saying something to the effect of, "We offer the benefits of our spells to everyone, but to demonstrate your faith/energy/whatever we recommend a donation of $10 for this one." And since some spells apparently involve physical items, "If you want us to send you this evidence that we performed the spell we charge $20 S&H."

Answer 3

I noticed this post, and although old I think it's really interesting.

It is not illegal to sell spells so long as you state "for entertainment purposes only" - this protects you (or them) from fraud claims, such that if you are selling a "health" spell and someone gets sick, you or the third party selling service doesn't get sued. However, these businesses can just decide it's not the type thing they want sold.

Are you actually performing the spell, or selling the written directions for others to conjure the desired effect?

You tagged freedom of speech. You have the right to propagate and sell the spells. You can create your own website; however, these other websites you referred to retain a right of refusal to sell anything they don't want to. It's in their disclosures.

As supernatural shows and interest in the occult has exploded over the years, you may have something that can really make you some money if you market them right. This may also be why they don't want to sell them. What if the spell resulted in a protracted haunting or bad result!?! Regardless, it looks like you're going to have to do it on your own rather that through a third party marketplace.

Good luck!