Psychic Science and Advertising: A Question of Constitutional Law
If you are a taxpayer in Colorado and you believe the free speech law protects against fraud then you should contact your local Board of Equalization, or Colorado statutory board. These boards have wide jurisdiction over issues that touch upon the state’s tax policy and enforcement. They also include issues related to revenue code, the real estate taxes, insurance, occupational licenses, and professional licenses. The recently passed Ye Olde Concordance is on the books as an amendment to the Revenue Code, which is up for renewal in 2021. The purpose of this amendment is to specifically define when a consumer is subjected to unfair competition, where that unfair competition takes place, and how the state will impose penalties for such incidences.
It has been generally accepted among experts that the proposed amendment will not change existing laws that restrict fraud and cheating in the property market, lottery, or gaming. Proponents of the ordinance claim that it is intended to prevent the enforcement of fraudulent or misleading practices. However, the amendment may in fact open up a new line of attack by powerful special interest groups who can use the courts to challenge the application of any regulations or licensing schemes created by the Board. For example hinh anh dia bay, if there is a conflict between the proposed amendment and a previously enacted restriction, the Board may be tempted to rely on the prior restraint to justify its deviation from the spirit of the amended law. Thus, any attempt by the Board to distinguish itself from the legislature by appealing to the courts is likely to fail.
One problem that many citizens of Colorado are facing is that they are often afraid that the new ordinance will create a loophole whereby psychics can take advantage of otherwise law-abiding citizens to perform their dark Arts for cash. There are two distinct problems with this argument. First, the Amendment only affects the regulation of access to mediums; it does not intend to limit speech itself. Second, the amendment does not distinguish between fraud or misbehaving by means of spiritual mediums, and genuine psychic readings. (The amendment also requires that all citizens be informed about laws concerning astrology, geology, astronomy, homeland security and telecommunications.)
On the surface, both these arguments appear to be persuasive. Nevertheless, the Colorado Supreme Court has recognized that the First Amendment’s guarantee of freedom of speech protects not just pamphlets and other literature, but also “non-publishing” materials as well. Thus, the Court has held that a regulation of speech that makes it a crime to engage in certain conduct, such as the solicitation of business on the Internet, cannot itself constitute a violation of the First Amendment. Similarly, a regulation of speech that makes it a crime to engage in a specific act, like solicitation on the Internet, cannot effectively pass muster under the First Amendment if there are no corresponding limits on the subjects of those acts. This principle applies even when the speech in question is a written document like a bill of rights or a constitution.
The majority opinion relied on by the majority of the court includes three separate opinions. Justice Ginsberg insisted, “The ordinance constitutes an unreasonable restriction on speech.” Justice Breyer added that the “restriction here…is not about preventing expression, but about regulating communication.” Justice Kagan concluded, “There is a strong likelihood that the limit here, like the others here, will fail if applied.” Justices Ginsburg, Souter, and Thomas expressed similar sentiments. Because the “weight” for deciding the constitutionality of the ordinance is excessive, the three-judge court departed from the traditional understanding of the scope of the First Amendment as protecting all categories of speech, including those protected by the Ordinance.
Although the majority opinion does leave open the possibility of future regulation of speech based on the content of the publications in question, the majority opinion is too broad to withstand scrutiny. The Court failed to recognize a meaningful distinction between the regulated speech and unprotected speech, or between the regulated speech and the content of the publications in question. Moreover, the majority opinion fails to distinguish between regulated speech that is simply “uncommercialized.” As a result, for the reasons discussed below, we conclude that the ordinance violates the Due Process Clause of the Constitution.