Spiritual Psychic Science Church of Truth, Inc. v. City of Azusa

Citation201 Cal.Rptr. 852,154 Cal.App.3d 1187
CourtCalifornia Court of Appeals
Decision Date27 April 1984
PartiesPreviously published at 154 Cal.App.3d 1187 154 Cal.App.3d 1187, 155 Cal.App.3d 1067 SPIRITUAL PSYCHIC SCIENCE CHURCH OF TRUTH, INC., Plaintiff and Appellant, v. The CITY OF AZUSA, Defendant and Respondent. Civ. 68472.

Rosenberg & Wessling and John J. Wessling, Glendale, for plaintiff and appellant.

Burke, Williams & Sorensen and Peter M. Thorson and Cristina L. Sierra, Los Angeles, for defendant and respondent.

JOHNSON, Acting Presiding Justice.

This case raises the constitutional validity of an ordinance which prohibits fortunetelling (or analogous activities) for consideration. We conclude this ordinance violates California Constitution's guarantee of the right to speak "on any subject." As an

independent ground we further conclude this ordinance also violates the free speech guarantees of the United States Constitution. Accordingly, we reverse the lower court's refusal to enjoin enforcement of the ordinance.

I. FACTS AND PROCEEDINGS BELOW.

One appellant, Spiritual Psychic Science Church of Truth, Inc., (Psychic) was incorporated in July 1976 as a non-profit corporation. The other appellant Fatima Stevens is an "ordained minister" of that church. On June 11, 1979, the City of Azusa (Azusa) granted the church a business license based on a representation it would only conduct religious workshops and counseling but not engage in fortunetelling.

Sometime in July or August 1979, Psychic began advertising in a local newspaper that interested people could have their fortunes told at the church. Azusa responded by cancelling Psychic's business license and threatening to prosecute Stevens if she accepted any consideration for fortunetelling.

On February 11, 1981, Stevens and Psychic filed an action seeking to enjoin enforcement of Azusa Municipal Code section 8.52.060 which reads in pertinent part:

"No person shall practice or profess to practice or engage in the business or art of astrology, auguery, card or tea reading, cartomancy, clairvoyance, crystalgazing, divination, fortune telling, hypnotism, magic, mediumship, necromancy, palmistry, phrenology, prophecy, or spiritual reading, or any similar business or art, who either solicits or receives a gift or fee or other consideration for such practice or where admission is charged for such practice."

Section 8.52.060 does not exempt religions or religious organizations from its prohibitions.

The appellant's petition alleged this ordinance violates First Amendment guarantees of freedom of religion in that it is "overbroad" and even if construed narrowly it interferes with the free exercise of religion.

On May 15, 1981, the court held a hearing on this petition for injunctive relief and denied the application. An appeal was filed on August 3, 1981, and briefing completed on October 31, 1983, as to the freedom of religion issues raised in the original petition. On November 15, 1983, this court requested supplemental briefing from the parties on the question of whether this ordinance violates First Amendment guarantees of freedom of speech. These briefs were filed on December 2, 1983.

II. THE AZUSA ORDINANCE CREATES AN ABSOLUTE PROHIBITION ON SPEECH BASED ON THE CONTENT OF THE SUBJECT MATTER OF THAT SPEECH.

Before undertaking an analysis of the applicable law, it should be noted what Azusa has attempted with the ordinance quoted above.

First, most of the activity this ordinance defines as criminal--including appellant's fortunetelling--is a form of speech. Indeed it falls comfortably within the core definition of speech--the act of uttering words to express one's thoughts, feelings, or opinions. 1 After all, what is fortunetelling or prophecy but the act of using words to convey the fortuneteller's or prophet's thoughts, feelings, or opinions about the future to another individual or an audience. Thus in this instance we need not stretch the definition of "speech" to embrace symbolic non-verbal activity. 2 Nor is this a Secondly, it should be observed Azusa only seeks to punish speech which has certain subject matter or content. It does not seek to ban all speech or all speech delivered in a certain manner or in a certain place or time. Rather Azusa prohibits speech about a specified topic--essentially the prediction of future events through certain techniques deemed "inherently deceitful." To analogize, it is not as if Azusa enacted an ordinance which prohibited all lecturing for a fee in that city but as if it enacted one which prohibited lecturing for a fee on the subject of socialism or the free enterprise system or the government of Azusa. Thus the ordinance is what the courts have called a content-based or subject matter restriction on the right to speak. 5

                case where the speech is merely incidental to other conduct which is made criminal.  The act which is prohibited is not the conduct of devising a prediction whether by reading tea leaves, gazing into a crystal ball or divine inspiration but rather the communication of that prediction to others.  The very definition of "fortunetelling" is "to tell future events." 3  And similarly, "prophecy" is defined as a "spoken ... utterance of a prophet." 4  Thus what Azusa seeks to punish is the communicative act itself;  in other words, to punish speech
                

Thirdly, this is not merely a "time, place and circumstance" restriction but rather an outright prohibition against certain speech anytime and anywhere within the Azusa city limits. That is, the ordinance does not just seek to confine this type of speech to certain zones within the city or to designated times of the day. Instead, Azusa seeks to punish anyone who engages in speech on this topic at any place or at any time.

As this court analyzes it, then, the Azusa ordinance poses this fundamental constitutional issue: May government lawfully prohibit the sale of speech on grounds its subject matter purports to convey predictions about future events derived through the use of certain methods the government deems unscientific or fraudulent?

III. THE AZUSA ORDINANCE DENIES APPELLANTS FREEDOM OF SPEECH GUARANTEED BY THE FIRST AMENDMENT OF THE UNITED STATES CONSTITUTION.

Governmental regulation of speech can assume different forms, each subject to different levels of scrutiny under the First Amendment.

First, regulations can differ in motive. The motive can be to restrict the communication of information of a certain type (Tribe, American Constitutional Law, supra, 580-81) such as obscenity (e.g., Roth v. United States (1957) 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498), reh. den. (1957) 355 U.S. 852, 78 S.Ct. 8, 2 L.Ed.2d 60, or the advocacy of violent political change (e.g., Dennis v. United States (1951) 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137), reh.

                den. (1951) 342 U.S. 842, 72 S.Ct. 20, 96 L.Ed. 636 and reh. den. (1958) 355 U.S. 936, 78 S.Ct. 409, 2 L.Ed.2d 419.   On the other hand, government may be motivated by policy goals unrelated to speech such as preservation of quiet near a hospital or school (e.g., Grayned v. City of Rockford (1972) 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222) but impose regulations which nonetheless have the effect of limiting speech in some way
                

Secondly, regulations can differ in how much they limit the affected speech. At one extreme are laws which ban certain forms of speech entirely. Others only seek to confine selected speech activities to certain geographic areas or to certain times of day or to certain environments. "[T]he question in a particular case is whether that control is exerted so as not to deny or unwarrantedly abridge the ... opportunities for the communication of thought...." (Cox v. New Hampshire (1941) 312 U.S. 569, 574, 61 S.Ct. 762, 765, 85 L.Ed. 1049 [sustaining parade permit requirement because officials could not deny permit entirely, but rather only regulate time, place and manner of parade]).

A. With Rare Exceptions the Federal Constitution Precludes Government from Outright Prohibition of Speech on the Basis of the Content of That Speech.

The most intense scrutiny is reserved for the category of regulation Azusa imposed in this case--where the motive is to restrict communication of specific information and the method is to ban outright that type of speech While "time, place and circumstance" regulations occasionally have been upheld even when limited to speech with disfavored content (Young v. American Mini Theatres (1976) 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310), reh. den. (1976) 429 U.S. 873, 97 S.Ct. 191, 50 L.Ed.2d 155, a complete prohibition is another thing. "[A]bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content. [Citations omitted.] To permit the continued building of our politics and culture, and to assure self-fulfillment for each individual, our people are guaranteed the right to express any thought, free from government censorship. The essence of this forbidden censorship is content control." (Police Department of Chicago v. Moseley, supra, 408 U.S. 92, 95-96, 92 S.Ct. 2286, 2290, 33 L.Ed.2d 212.)

This does not mean content-based prohibition of speech always violates the First Amendment. Historically the courts have sanctioned legislation banning certain carefully defined categories--among them, libel, true obscenity, and solicitation to commit crime. (Chaplinsky v. New Hampshire (1942) 315 U.S. 568, 572, 62 S.Ct. 766, 769, 86 L.Ed. 1031.) Whether another category of subject matter--fortunetelling and prophecy--should be added to this short list invokes the standard first articulated by Justice Brandeis in his concurring opinion in Whitney v. California (1926) 274 U.S. 357, 373-377, 47 S.Ct. 641, 647-649, 71 L.Ed. 1095, overruled on other grounds Brandenburg v. Ohio (1969) 395 U.S. 444, 89 S.Ct. 1827, 23...

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