Agenda - Planning Commission - 05/02/2013

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Zoning Bulletin April 10, 2013 I Volume 7 I Issue 7 "inherently deceptive speech undeserving of any First Amendment protection." The court rejected the County's argument. The court recognized that fortune telling is "not necessarily fraudulent or inherently deceptive simply because it involves predictive speech." Rather, found the court: "[t]he reality that much professional intercourse depends on predictions about what the future may bring suggests that categorical branding of fortune telling as unworthy of First Amendment protection for that same reason is untenable." The court concluded that whether Moore-King's specific activities were fraudulent or deceptive was a genu- ine issue of material fact, unsuitable for decision on a summary judgment basis (but better answered by a jury). The court also noted that "[e]ven when considering some instances of defamation and fraud, . . . falsity alone may not suffice to bring the speech outside the First Amendment. The statement must be a knowing or reckless falsehood." Here, the County had not specifically argued that Moore-King's speech was knowingly or recklessly false. Absent such arguments, the court could not agree with the County's position that inherently deceptive speech necessarily lacks First Amendment protection. Consequentially, the court concluded that the First Amendment Free Speech Clause afforded some degree of protec- tion to Moore-King's activities. Next, the court looked to determine the appropriate level of First Amendment protection that should be accorded Moore-King's counseling activities. The court found that neither commercial speech nor the time, place, and manner doctrine was a perfect fit. Rather, the court determined Moore-King's activities "fit comfortably within the confines of" analysis under the "professional speech doctrine" —which regulates occupational speech. (A distinction is made between professional speech and protected expression.) The court explained that, under the professional speech doc- trine, the government can license and regulate those who would provide services to their clients for compensation without running afoul of the First Amendment. The court went on to find that the County's regulation of Moore-King's profession raised no First Amendment problem because it amounted to a generally applicable licensing and regulatory regime for fortune':tellers: The County uniformly required any individual seeking to open a business as a fortune teller to acquire a fortune teller business permit, pay the fortune teller license tax, and secure a conditional use permit in certain zoning districts. Thus, the court held that Moore-King's activities fell squarely within the scope of the professional speech doc- trine and that the County's regulations therefore did not abridge her First Amendment freedom of speech. Moore -King had also argued that the County's regulatory scheme interfered with the free exercise of her religion under the First Amend- ment and the RLUIPA, which in pertinent part prohibits a government from enacting a land use regulation that imposes a "substantial burden on the religious exercise of a person." (42 U.S.C.A. § 2000cc(a)(1).) The County contended that Moore-King's set of beliefs did not constitute a religion. The appellate court agreed. © 2013 Thomson Reuters 7