Michael Argello v. City of Lincoln ( 1998 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 97-2615NE
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Michael Argello, *
*
Appellee, *
* On Appeal from the
v. * United States District Court
* for the District of
* Nebraska.
City of Lincoln, A Home Rule *
Charter City, *
*
Appellant. *
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Submitted: February 9, 1998
Filed: May 13, 1998
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Before RICHARD S. ARNOLD,1 Chief Judge, HANSEN, Circuit Judge, and
LIMBAUGH,2 District Judge.
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RICHARD S. ARNOLD, Chief Judge.
1
The Hon. Richard S. Arnold stepped down as Chief Judge of the United States
Court of Appeals for the Eighth Circuit at the close of business on April 17, 1998. He
has been succeeded by the Hon. Pasco M. Bowman II.
2
The Hon. Stephen N. Limbaugh, United States District Judge for the Eastern
and Western Districts of Missouri, sitting by designation.
The question presented is the constitutionality, under the First Amendment, of an
ordinance of the City of Lincoln, Nebraska. The ordinance reads as follows:
It shall be unlawful for any person to exercise, carry on,
advertise, or engage in the business or profession of
clairvoyancy, palmistry, phrenology, mind reading,
fortunetelling, or any other business, profession, or art of
revealing or pretending to reveal past or future events in the
life of another.
Lincoln, Neb. Municipal Ordinances § 9.40.030 (1997). The District Court3 held the
ordinance invalid. We affirm, largely for the reasons given in the thorough and well-
reasoned opinion of the District Court.
The ordinance is a content-based regulation of speech. As such, it can be upheld
only if it is supported by a compelling state interest. No such interest appears here. If
the citizens of Lincoln wish to have their fortunes told, or to believe in palm-reading or
phrenology, they are free to do so under our system of government, and to patronize
establishments or “professionals” who purport to be versed in such arts. Government
is not free to declare certain beliefs – for example, that someone can see into the future
– forbidden. Citizens are at liberty to believe that the earth is flat, that magic is real, and
that some people are prophets. See Rushman v. City of Milwaukee, 959 F. Supp. 1040(E.D. Wis. 1997), where the Court said:
The line between beliefs (or opinions) and facts is blurry at
best. What seems like a provable fact to one person is only
an opinion to another: paleontologists like Stephen J. Gould
3
The Hon. Thomas D. Thalken, United States Magistrate Judge for the District
of Nebraska, sitting by agreement of the parties under 28 U.S.C. § 636(c).
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think that evolution is a scientific fact, while creationists think
it is only a false belief. Throughout history, many societies
have decided that the government should arbitrate truth and
falsehood, fact and opinion; their record is not comforting.
Doubting the government’s talent for or benefit from
declaring what is true and what is not, the United States took
a different approach; the First Amendment forbids the
government from arbitrating truth and fiction. A person is
free to write and sell books declaring the earth is flat . . ..
Id. at 1041. In short, government may not prohibit a certain kind of speech simply
because it disagrees with it.
The City contends that the ordinance can be upheld as a regulation of commercial
speech. It reads the ordinance as limited to fortunetelling for pay. The ordinance is not
so limited on its face, nor has any court of Nebraska given it such a limiting construction.
Even if it were so limited, we do not believe this proscription would fall into the
commercial-speech category. The speech itself, fortunetelling, is not commercial simply
because someone pays for it. The speech covered by the ordinance, for the most part,
does not simply propose a commercial transaction. Rather, it is the transaction. The
speech itself is what the “client” is paying for. As Judge Thalken aptly remarked:
“There is a distinct difference between the offer to tell a fortune (‘I’ll tell your fortune
for twenty dollars.’), which is commercial speech, and the actual telling of the fortune
(‘I see in your future . . ..’), which is not.” Michael Argello v. City of Lincoln,
Nebraska, No. 4:95CV3457 (D. Neb.) (order filed May 14, 1997), at p. 9.
Nor can the ordinance be upheld as a prohibition against fraud. It does not require
that fortunetellers know that they are conveying false information, or that they have no
power of seeing into the future. For all we know, certain persons genuinely
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believe that they have such powers. In this belief they may be mistaken, but that is not
a decision that government is free to make under our Constitution.
The District Court also took the view that the ordinance is overbroad, but we need
not pursue this aspect of the analysis. Enough has been said already to indicate our
reasons for affirmance.
The judgment is affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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