SPIRITUAL PSYCHIC SCIENCE CHURCH OF TRUTH INC v. CITY OF AZUSA (1984)

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 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.

 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

 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 L.Ed.2d 430.⁶

“[T]he necessity which is essential to a valid restriction [of speech] does not exist unless speech would produce, or is intended to produce, a clear and imminent danger of some substantive evil which the State constitutionally may seek to prevent․

“ * * *

“Fear of serious injury cannot alone justify suppression of free speech․  Men feared witches and burnt women․  To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced.   There must be reasonable ground to believe that the danger apprehended is imminent.   There must be reasonable ground to believe that the evil to be prevented is a serious one.

“ * * *

“․Prohibition of free speech ․ is a measure so stringent that it would be inappropriate as the means for averting a relatively trivial harm to society.”

Subsequent cases appear to have added one further element to this test—the potential social value of speech within the subject matter category the Legislature seeks to suppress.  (Roth v. United States, supra, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498.)   Thus, a lesser showing of serious and imminent harm is required where the content of the speech to be prohibited is “utterly without redeeming social importance.”  (Roth v. United States, supra, 354 U.S. at 484, 77 S.Ct. at 1309, while so characterizing obscenity;  Miller v. California, supra, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 [indicating if material is prurient it still can avoid classification as obscenity and thus warrant protection under the First Amendment if it has serious social, political or literary merit].)

 What appears to emerge is a balancing test.   However, this balancing test is not applied to individual restraints against specific utterances.   Instead it is used to place whole categories of speech on one side or another of a bright line dividing protected from unprotected speech.  (See generally Tribe, American Constitutional Law, supra, pp. 582–83;  Ely, Flag Desecration:  A Case Study in the Roles of Categorization and Balancing in First Amendment Analysis, (1975) 88 Harv.L.Rev. 1482, 1500–02;  Nimmer, The Right to Speak from Time to Time, (1968) 56 Cal.L.Rev. 935, 942.) ⁷  The elements of this equation are the imminence and seriousness of the harm this particular category of speech inflicts, on the one side, versus the “redeeming social importance” of that speech, on the other.   The greater the social importance of a category of speech the more imminent and serious the harm must be to sustain a legislative prohibition of that type of speech.   Conversely, where the harm is less serious or less imminent the social value of the speech must be nearly undetectable to justify its banishment.

Applying this equation to fortunetelling and prophecy, we first turn to the “social importance” of speech with this content.   At the outset we note that while the Supreme Court appears to rank debate about public policy as the most important—or at least the category most deserving of constitutional protection ⁸ —it has by no means so narrowly defined the categories of speech deemed to possess enough social importance to merit First Amendment protection.  “Matters of science, economics, business, art, literature, etc., are all matters of interest to the general public.”  (Gertz v. Robert Welch Inc. (1974) 418 U.S. 323, 357, fn. 6, 94 S.Ct. 2997, 3016, fn. 6, 41 L.Ed.2d 789, J. Douglas dissenting on other grounds.)   Even speech which has no purpose or value other than pure entertainment is covered by the First Amendment.  “By excluding live entertainment throughout the Borough, the ․ ordinance prohibits a wide range of expression that has long been held to be within the protections of the First and Fourteenth Amendments.   Entertainment, as well as political and ideological speech, is protected;  motion pictures, programs broadcast by radio and television, and live entertainment, such as musical and dramatic works, fall within the First Amendment guarantee.   [Citations omitted.]”  (Schad v. Mt. Ephraim (1981) 452 U.S. 61, 65, 101 S.Ct. 2176, 2181, 68 L.Ed.2d 671.)

The subject matter of fortunetelling and prophecy—the prediction of future events—likewise is a matter of interest to the general public.   At an elementary level, we see this in the time spent in most newscasts reporting the weatherman's predictions of future climatic conditions.   The social importance of this general topic can also be discerned in the number of think tanks, the volume of literature, and the growth of societies and organizations devoted to the emerging field of “futurology.” ⁹  Indeed we note when the Chief Justice of the United States and the American Bar Association sponsored a conference on judicial reform they selected as the featured opening night speaker a leading “futurist” to tell his predictions about the future of American society.  (Kahn and Silverman, Pound and the Future of Criminal Justice, The Pound Conference:  Perspectives on Justice in the Future (1979) pp. 39–49.)

What distinguishes “fortunetellers” and “prophets” from weathermen, “futurologists” and a host of other professional and amateur predictors of future events is a general perception the former are conveying unsound, unscientific information about this admittedly socially important topic.   Indeed their predictions are often labeled “fraudulent” or “inherently deceptive.”  (See, e.g., In re Bartha (1976) 63 Cal.App.3d 584, 591, 134 Cal.Rptr. 39.)   Thus at a superficial level it is tempting to lump fortunetelling and prophecy with a category of speech already deemed to lack social importance—fraud and deceit.  (Gertz v. Robert Welch Inc., supra, 418 U.S. 323, 339–40, 94 S.Ct. 2997, 3006–07, 41 L.Ed.2d 789.)   Yet, closer analysis reveals the content of fortunetelling and prophecy is different from the content of traditional fraud and deceit.   Moreover, it is different in ways which give it greater social value and make it more deserving of constitutional protection.

The essence of fraud and deceit is the expression of a false statement of fact.¹⁰  The essence of fortunetelling and prophecy, on the other hand, is the expression of an opinion about the future.   To the extent these opinions prove to be wrong, they are closer to the realm of false ideas than to false statements of fact.   The Supreme Court has distinguished false ideas from false statements of facts:  “Under the First Amendment there is no such thing as a false idea.   However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.   But there is no constitutional value in false statements of fact.  [Fn. omitted.]”  (Gertz v. Welch, supra, 418 U.S. 323, 339–40, 94 S.Ct. 2997, 3006–07, 41 L.Ed.2d 789.)

Admittedly, “everyone knows” (including the members of this court) that no one can really predict future happenings in an individual life or a society.   And certainly “everyone knows” one cannot discern those happenings in a palm, a crystal ball, or tea leaves.   But that “everyone” considers it a “false idea” someone can do so and rejects the opinions so derived as “false opinions” does not diminish their status as ideas and opinions.   And as such they have some social importance within the meaning of the First Amendment, especially since the topic they concern—the future—is itself a matter of substantial significance to the general public.

 One need not have a scientific basis for a belief in order to have a constitutional right to utter speech based upon that belief.   Indeed the belief may be one so absurd as to be unworthy of scientific investigation, yet be an appropriate subject of constitutionally protected speech.   Nonetheless, it is interesting to note that the underlying premises of fortunetelling currently are the subject of serious scientific research.   Several well-regarded universities, colleges and independent research institute have active programs in the area of parapsychology or PSI research.¹¹  Among the topics under study in this field is “precognition”—the question whether some individuals indeed have an ability to foresee the future.¹²  This is not to say that precognition has been scientifically validated or that it ever will be.   But the mere fact the phenomena underlying fortunetelling are the subject of serious scientific inquiry underscores the danger of writing off any belief as completely incredible or prohibiting any speech based on such belief on grounds it is inherently false and fraudulent.

The members of this court are probably as skeptical as anyone in American society about the actual feasibility of foretelling future events through any of the methods typically used by professional fortunetellers.   But society's skepticism or outright disbelief does not justify denial of free speech to the believers.

Turning to the other side of the equation, how serious and imminent is the harm Azusa's content-based prohibition of speech seeks to prevent?   We can identify three types of potential harm:  first, the possibility the fortuneteller or prophet will use the opportunity to commit other crimes such as pickpocketing, schemes to defraud and the like;  second, the introduction of unseemly, unwanted institutions into a local community;  and finally, the taking of money from people for what “everyone knows” is worthless information.

 As to the first of these potential harms, it can be adequately and appropriately addressed by measures less drastic than complete prohibition of fortunetelling and prophecy.   The concern that those who utter words with certain content may have bad character and thus commit other crimes while they are speaking does not justify barring speech about that topic.   Here the evil is not the speech but what goes along with it.¹³  Thus the constitutionally appropriate remedy is to punish the accompanying criminal acts if and when they occur, not the act of speaking.¹⁴  Otherwise those who desire to speak on that topic without accompanying criminal activity would be deprived of their right to free speech because others in their number used the opportunity to commit criminal acts.   It is as if a legislative body sought to ban everyone from speaking about unions because some people who spoke about this topic had been known to commit violent acts.

Significantly, the State of California has chosen to address this type of harm by targeting the ancillary criminal conduct not the speech itself.  Penal Code section 332 in effect makes it a felony to engage in a fraudulent scheme in the context of fortunetelling.¹⁵  Thus the State Legislature has used the appropriate weapon—a rifle shot—which strikes only the possible ancillary criminal conduct.   Azusa, on the other hand, has employed a blunderbuss which kills speech and crime alike.

The second potential harm is the deteriorating effect of fortunetelling “parlors” and like institutions on the appearance and integrity of a community.   This harm is akin to that experienced when adult book stores and theatres proliferate in a city.   But once again the appropriate remedy is something short of outright prohibition of all speech of that nature anywhere within the jurisdiction.   Instead, as with adult book stores and theatres, “time, place, and circumstance” regulations strike the correct balance between free speech rights and the community's legitimate aesthetic and moral concerns.   Under the principles enunciated in Young v. American Mini Theatres, supra, 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310,¹⁶ Azusa might well have restricted fortunetelling to designated areas of the city and imposed other restrictions calculated to minimize this specie of harm.¹⁷  But once again Azusa has elected to fire the blunderbuss of complete prohibition when a rifle shot—in this instance, “time, place and circumstance” regulations—would have sufficed.

The third category of harm is the only one which allegedly flows directly from the speech itself, not separate criminal conduct which may occasionally be associated with the speech nor accompanying institutions deemed offensive to certain neighborhoods.   Here the gravamen of the harm is the alleged bilking of the audience (whether a single individual or a crowded auditorium).   In essence, the “gullible, superstitious and unwary” (In re Bartha, supra, 63 Cal.App.3d 584, 591, 134 Cal.Rptr. 39) are paying good money for speech which is valueless.   It is valueless because “everybody knows” nobody can actually foretell the future.

Two questions seem appropriate:  Is an audience which wants to hear this precise type of speech and is willing to pay for it really harmed merely because the rest of us “know” they are wrong in placing any value on speech with this content?   And if so, does this harm rise to the level of seriousness required before society can constitutionally prohibit speech of this kind?

 Some people may go to a fortuneteller or listen to a prophet for entertainment bringing along with them a healthy skepticism.   If so, they get what they paid for just as if they had used the money to attend the movies or the theatre—an hour or two of entertaining speech.   Others may go because of a personal belief that what the fortuneteller or prophet says is true and accurate.   Again this second listener gets what he or she bargained for—a valued opinion about what the future holds in store.   Thus, this is far different from the buyer who is told he is purchasing a mink coat which turns out to be rabbit.   This is more akin to the buyer who holds rabbit fur in the highest esteem and thus is willing to pay mink level prices for a coat the rest of us are sure is not worth nearly that much.   Here indeed we are in the realm of ideas and opinions where one man's God is another man's Satan, one man's conviction another man's heresy, one man's rational principle another man's irrational poppycock.   Accordingly, we are not at all sure fortunetelling or prophecy inflict this third specie of harm at all.   But in any event, we hold this harm, if suffered, is not of sufficient seriousness to justify an outright and complete ban on the sale of speech about this subject matter.

We would confront a very different question if the language of this ordinance were limited to persons who fraudulently claimed to possess powers of precognition they knew they did not have and who knowingly took advantage of those who erroneously believed they did.   But the Azusa ordinance prohibits someone from predicting the future for consideration even though that person honestly believes he or she has the ability to make such predictions.   Likewise it would prohibit a lecturer from charging admission to discuss his or her predictions about the future of American society if those predictions were based on methodologies deemed unscientific or unsound.   And under the catchall provision which extends the prohibition to “any similar business or art” one might have doubts about the legality of selling fortune cookies in Azusa.   Or consider the status of the astrological column in the Los Angeles Times and other local newspapers.

 To sum up, we have found fortunetelling and prophecy meet the rather minimal requirement of social importance imposed on speech conveying ideas and opinions.   We also have found the harms this form of speech inflicts either to be curable by measures short of an outright ban or to be of insufficient seriousness to warrant this ultimate infringement on the right of free speech.   Thus, applying our balancing equation, we find the telling of fortunes and prophesying about the future to be a category of speech protected by the United States Constitution.

B. The Receipt of Consideration Does Not Convert Fortunetelling Into Commercial Speech Only Entitled to Lesser Protection Under the First Amendment of the Federal Constitution.

In its supplemental brief Azusa argues its ordinance only reaches commercial speech and thus is constitutional under the lesser protections afforded that form of speech.   We find the speech prohibited under the Azusa ordinance actually is ordinary speech not commercial speech.   Thus we need not confront the issue of whether this outright prohibition would fail to pass muster even under the standards applicable to commercial speech.

Until 1975 commercial speech was one of the few categories of speech excluded entirely from the protective blanket of the First Amendment.  (See, e.g., Valentine v. Chrestensen (1942) 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. 1262, overruled Schaumburg v. Citizens for Better Environ. (1979) 444 U.S. 620, 100 S.Ct. 826, 63 L.Ed.2d 73;  Farber, Commercial Speech and First Amendment Theory, (1979) 74 Northwestern L.Rev. 372.)   But in Va. Pharmacy Bd. v. Va. Consumer Council (1976) 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346, the Supreme Court for the first time expressly recognized commercial speech was entitled to some, though lesser, protection from governmental regulation.   In subsequent opinions, the Court has articulated a four-part test to be applied to laws seeking to prohibit or regulate commercial speech.  “First, we determine whether the expression is constitutionally protected.   For commercial speech to receive such protection, ‘it at least must concern lawful activity and not be misleading.’  ․ Second, we ask whether the governmental interest is substantial.   If so, we must then determine whether the regulation directly advances the government interest asserted, and whether it is not more extensive than necessary to serve that interest.”  (Bolger v. Youngs Drug Products Corp. (1983), 463 U.S. 60, 103 S.Ct. 2875, 77 L.Ed.2d 469.)

Clearly this affords different and lesser protection to commercial speech than that enjoyed by ordinary speech.   Indeed it is not at all clear fortunetelling and prophecy would be guaranteed protection under the Federal and California Constitutions were they appropriately classified as commercial speech.   But the threshold question is whether fortunetelling and prophecy constitute commercial speech.

 Azusa argues the fortunetelling and prophecy it seeks to ban fall within the category of commercial speech because the prohibition applies only if the fortuneteller-prophet receives a fee or other consideration.   In making this argument, however, Azusa has misconstrued the concept of commercial speech.   The fact a speaker charges for his or her speech does not convert it into commercial speech.   Instead it is only when the speech is uttered in connection with promoting the sale of a product or service that it descends from the high peak of ordinary speech to the low plateau of commercial speech.

 In Va. Pharmacy Bd. v. Va. Consumer Council, supra, 425 U.S. 748, 760, 96 S.Ct. 1817, 1824, 48 L.Ed.2d 346, the United States Supreme Court defined commercial speech as that which “simply propose[s] a commercial transaction.”   Fortunetelling and prophecy pretty clearly do not fall within this definition even when done in return for consideration.   On the other hand, an advertisement for a fortuneteller or prophet, just like an advertisement for a lawyer, an optometrist or a shoemaker, might be properly classified as commercial speech.   To the same effect is Ohralik v. Ohio State Bar Assn. (1978) 436 U.S. 447, 98 S.Ct. 1912, 56 L.Ed.2d 444, holding that a private attorney soliciting legal business from prospective clients is engaged in the less protected form of speech, that is, commercial speech.   Such solicitation is, after all, closely akin to advertising in that it “simply proposes a commercial transaction.”  (But see Murdock v. Pennsylvania (1943) 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292 holding that advertisement of a product which itself qualifies as ordinary speech, in this instance religious books, cannot be treated as commercial speech.)

In other cases, the Supreme Court has made it abundantly clear the receipt of compensation does not strip an utterance of its status as ordinary speech entitled to the full protections of the First Amendment.  New York Times Co. v. Sullivan (1964) 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, involved a paid advertisement, something considerably closer to what the court has come to regard as commercial speech than is fortunetelling or prophecy for consideration.   Still, since the topic of the advertisement was not a product, the Court held it was entitled to protection under the First Amendment.

“The publication here was not a ‘commercial’ advertisement in the sense in which the word was used in Chrestensen․  That the Times was paid for publishing the advertisement is as immaterial in this connection as is the fact that newspapers and books are sold.  [Citations omitted.] ․  To avoid placing such a handicap upon the freedoms of expression, we hold that if the allegedly libelous statements would otherwise be constitutionally protected from the present judgment, they do not forfeit that protection because they were published in the form of a paid advertisement.  [Fns. omitted.]”  (376 U.S. at p. 266, 84 S.Ct. at 718.   Italics supplied.)

Similarly, in Schaumburg v. Citizens for Better Environ., supra, 444 U.S. 620, 632, 100 S.Ct. 826, 833, 63 L.Ed.2d 73, reh. den. (1980) 445 U.S. 972, 100 S.Ct. 1668, 64 L.Ed.2d 250, the Supreme Court classified the solicitation of funds to pay for subsequent speech activities as itself a form of ordinary not commercial speech.  “Furthermore, because charitable solicitation does more than inform private economic decisions and is not primarily concerned with providing information about the characteristics and costs of goods and services, it has not been dealt with in our cases as a variety of purely commercial speech.  [Fn. omitted.]”  (Italics supplied;  see also Bigelow v. Virginia (1975) 421 U.S. 809, 818, 95 S.Ct. 2222, 2230–31, 44 L.Ed.2d 600;  Buckley v. Valeo (1976) 424 U.S. 1, 16–17, 96 S.Ct. 612, 633–34, 46 L.Ed.2d 659.) ¹⁸

Most recently, in Bolger v. Youngs Drug Products, supra, –––U.S. ––––, ––––, 103 S.Ct. 2875, 2880, 77 L.Ed.2d 469, the Supreme Court indicates where an advertisement also conveys information about public issues its “proper classification as commercial or non-commercial speech ․ presents a closer question.   The mere fact that these pamphlets are conceded to be advertisements clearly does not compel the conclusion that they are commercial speech.  (See New York Times Co. v. Sullivan, supra, 376 U.S. 254, 265–266, 84 S.Ct. 710, 718, 11 L.Ed.2d 686.)   Similarly, the reference to a specific product does not by itself render the pamphlets commercial speech.   (Citations omitted.)   Finally, the fact that Youngs has an economic motivation for mailing the pamphlets would clearly be insufficient by itself to turn the materials into commercial speech.  (See Bigelow v. Virginia, supra, 421 U.S. 809, 818, 95 S.Ct. 2222, 2230–31, 44 L.Ed.2d 600;  Ginzburg v. United States (1966) 383 U.S. 463, 474, 86 S.Ct. 942, 949, 16 L.Ed.2d 31, reh. den. (1966) 384 U.S. 934, 86 S.Ct. 1440, 16 L.Ed.2d 536;  Thornhill v. Alabama, supra, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093).

“The combination of all these characteristics, however, provides strong support for the District Court's conclusion that the informational pamphlets are properly characterized as commercial speech.  [Fn. omitted.]”  (463 U.S. at p. ––––, 103 S.Ct. at p. 2880.)   Notably, fortunetelling or prophecy for consideration exhibits only one of the three characteristics essential to the Bolger court's determination of what constitutes commercial speech.   Moreover, the Supreme Court explicity held this factor—the economic motivation behind the speech—“would clearly be insufficient by itself to turn [an utterance] into commercial speech.”  (Ibid.)

We have found no United States Supreme Court cases dealing with statutes which attempted to prohibit people from charging fees or other consideration for speech about certain topics while allowing them to say the same things as long as they did so free of charge.   Nonetheless, it is only logical such restrictions must fail under the rationale of the cases cited above and the underlying policies of the First Amendment.

 The language from Sullivan, Schaumberg and Bolger quoted above, clearly establishes that unless it is in the nature of advertising, speech remains “ordinary speech” not “commercial speech” even though the speaker sells it.   As ordinary speech it is immune from prohibitions or undue regulations based on the content of what is said.   Accordingly, a prohibition of speech on the basis its content is fortunetelling or prophecy represents a content-based abridgement of ordinary speech.   As such, the prohibition violates the First Amendment whether it applies only to fortunetelling for consideration or to fortunetelling under all circumstances.   That is, unless the mere fact a speaker charges a fee were to convert his utterances to “commercial speech” government must continue to treat it as “ordinary speech” and therefore allow him to talk on any subject and to charge for that speech.

 To appreciate the absurdity of the contrary position, imagine a law prohibiting the sale of books on the subject of socialism or free enterprise or the government of Azusa but allowing publishers to give those books away and to sell books on any other subject.   Could that law conceivably pass muster under the First Amendment?   Similarly, imagine a law prohibiting speakers from charging for lectures on certain subjects but allowing them to charge for lectures on other topics.   Could that prohibition survive the First Amendment?   To state these questions is to answer them.   Speech which is sold is entitled to be as free from content-based prohibitions as is speech which is given away to the audience.   Unless its content is so dangerous or unredeeming that it can be banned when offered without charge, ordinary speech cannot be prohibited merely because the audience must pay for it.

IV. INDEPENDENT OF WHETHER THIS ORDINANCE VIOLATES THE FEDERAL CONSTITUTION IT VIOLATES THE CALIFORNIA CONSTITUTION'S BROADER FREE SPEECH GUARANTEES.

Article I, section 2 of the California Constitution does not merely track the language of the First Amendment to the United States Constitution.   Instead it guarantees for Californians:  “Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right.   A law may not restrain or abridge liberty of speech or press.”

In 1975, writing for a unanimous court, Justice Mosk expressly held article I, section 2 to be a “protective provision more definitive and inclusive than the First Amendment․”  (Wilson v. Superior Court (Watson) (1975) 13 Cal.3d 652, 658, 119 Cal.Rptr. 468, 532 P.2d 116.)   In that case the California Supreme Court struck down a preliminary injunction prohibiting distribution of a misleading political “newsletter” because the injunction “violated petitioner's rights of freedom of expression under the United States Constitution, and for an independent ground, under the broader terms of the California Constitution.”  (Id. at p. 662, 119 Cal.Rptr. 468, 532 P.2d 116, italics supplied.)

The Wilson holding has been reinforced in subsequent decisions.   In People v. Glaze (1980) 27 Cal.3d 841, 166 Cal.Rptr. 859, 614 P.2d 291, Chief Justice Bird rested the entire decision on article I, section 2 of the California Constitution.  “This section is more protective of speech than the First Amendment of the United States Constitution.  [Citation omitted.]   This court therefore only addresses the question whether the challenged [municipal code section] is consistent with the California Constitution.   Nevertheless, in keeping with convention, the free speech rights at stake will be referred to as First Amendment rights.”  (27 Cal.3d at p. 844, fn. 2, 166 Cal.Rptr. 859, 614 P.2d 291.)   In Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899, 153 Cal.Rptr. 854, 592 P.2d 341, affd. Pruneyard Shopping Center v. Robins (1980) 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741, the Court also relied on the broader language of the California free speech guarantees to protect activities not covered by the First Amendment.

 The language of the California free speech guarantee is broader in at least two senses relevant to this decision.   First it makes it even more clear the protection extends to speech about any subject not merely those topics deemed important to political discourse or public affairs.   Even mere “entertainment is entitled to the same constitutional protection as the exposition of ideas․ irrespective of its contribution to the marketplace of ideas.”  (Guglielmi v. Spelling-Goldberg Productions (1979) 25 Cal.3d 860, 867, 160 Cal.Rptr. 352, 603 P.2d 454.)   Thus, in California speech about any subject is protected even though the topic has no particular value to society.   Any restraint or abridgement predicated on the subject matter of speech therefore is likely to run afoul of article I, section 2 of the California Constitution.

 Secondly, the California free speech guarantee is broader in the kinds of statements persons are allowed to make about a chosen subject.   Under article I, section 2, Californians are protected in speaking their “sentiments” on any topic.   There is no requirement a statement be factual or scientifically valid or probably correct or anything else, only that it be a “sentiment.”   On the other hand, article I, section 2 makes it clear those who utter speech are “responsible for the abuse of this right.”   Consequently, the California Constitution does not immunize speakers from actions for fraud should they deliberately make erroneous statements.

 Sentiment, in turn, is variously defined as “an opinion about a specified matter” and “a thought, view, or attitude based on feeling or emotion instead of reason” (American Heritage Dictionary, 1976) and “an attitude, thought, or judgment permeated or prompted by feeling” (Webster's Third New Internat. Dict., supra, p. 2069.)   Under any of these characterizations, a fortuneteller's or prophet's prediction about the future is a “sentiment” about a subject.   It is “an opinion about a specific matter,” that is, what will happen to some individual or larger group in the future.   Frequently it will also qualify as “a thought, view, or attitude based on feeling or emotion instead of reason” or “an attitude, thought or judgment ․ prompted by feeling” about that same subject matter.¹⁹

The language of the California free speech guarantee appears to go out of its way to protect the opinion, the theory, the guess, not just the statement of fact or the scientifically verifiable conclusion.   This emphasizes individuals are allowed to speak freely not merely because we feel the ideas expressed may contribute to the development of a better society but also because individuals benefit from an opportunity to express themselves openly irrespective of whether society gains anything from what they say.   “ ‘[S]uppression of belief, opinion and expression is an affront to the dignity of man, a negation of man's essential nature.’ ”  (Guglielmi v. Spelling-Goldberg Productions, supra, 25 Cal.3d 860, 867, 160 Cal.Rptr. 352, 603 P.2d 454 quoting Emerson, Toward A General Theory Of The First Amendment (1963) 72 Yale L.J. 877, 879.)

Accordingly, under the California Constitution we need not inquire whether fortunetelling or prophecy has any value to society as a whole.   It is enough these predictions—whether considered divine revelations or merely wild guesses—provide an outlet of self-expression for those who utter and hear them.   The subject of fortunetelling—the future—is not inherently criminal or even anti-social in any sense.   Moreover, the statements many fortunetellers make about that subject are appropriately characterized as “sentiments,” that is, opinions or thoughts, views or attitudes not necessarily based on reason.

The language of this ordinance would prohibit someone who had an honest belief he or she possessed powers of precognition from predicting the future for listeners who also held a belief in the powers of that person.   Likewise it would ban fortunetelling for entertainment, that is, when both the fortuneteller and the fortunetellee hold no beliefs in the former's powers to predict the future but engage in the practice solely for purposes of amusement.   Either of these situations is constitutionally protected.²⁰  True believers are guaranteed the right to speak consistent with their beliefs and an avowed entertainer is allowed to speak to an audience who has come to be entertained.

We draw support for our interpretation of article I, section 2 from a recent decision of the Oregon Court of Appeal in a nearly identical case.   In Marks v. City of Roseburg (1983) 65 Or.App. 102, 670 P.2d 201, that court ruled a local “Occult Art” ordinance violated article I, section 8 of the Oregon Constitution which in language similar to the California free speech guarantee provides:  “ ‘No law shall be passed restraining the free expression of opinion, or restricting the right to speak, ․ freely on any subject whatsoever;  ․’ ”  (670 P.2d at p. 203.)  (Italics supplied.)   The ordinance in question likewise was similar in its terms to Azusa Municipal Code section 8.52.060.   The Oregon ordinance prohibited persons from engaging in the practice of fortunetelling, palmistry, and the like “for hire or profit” ²¹ just as the Azusa ordinance bans those same forms of speech if conducted for a “fee or other consideration.”

The Oregon Court of Appeal rested its decision on that state's constitution and expressly did not reach the First Amendment issue under the Federal constitution.   We find the rationale equally applicable to the free speech clauses of the California Constitution.

As the Oregon Court of Appeal held:

“The content of the speech and writing restricted by the ordinance is clearly within the protection of article I, section 8.   The constitution guarantees persons the right to speak or write on ‘any subject whatever,’ regardless of whether they derived their beliefs from a method that the majority finds ‘unsound and unscientific.’  ․

“ * * * *

“Defendant may exercise its police power to protect its citizens from fraud.   Defendant cannot, however, restrict the right to speak and write on the basis of the content of the communication that is within the protection of Article I, section 8.”  (670 P.2d at p. 204.)

The California Constitution likewise has been interpreted to guarantee “persons the right to speak on any subject.”   Accordingly, the Azusa ordinance runs afoul of the free speech guarantees of the California Constitution just as the Roseburg ordinance transgressed a similar provision of the Oregon Constitution.

Admittedly, eight years ago another division of this court found the payment of consideration for fortunetelling sufficient reason to strip that form of speech of its status as protected speech.  (In re Bartha, supra, 63 Cal.App.3d 584, 134 Cal.Rptr. 39.) ²²

“The constitutional right to freedom of speech does not prevent the Legislature from regulating or prohibiting commercial enterprises which are harmful to the public welfare.  (Citations omitted.)  ․ It is within the police power of the municipality ․ to determine that the business of fortunetelling is inherently deceptive and that its regulation or prohibition is required in order to protect the gullible, superstitious, and unwary.   (Citations omitted.)”  (In re Bartha, supra, at p. 591, 134 Cal.Rptr. 39, italics supplied.)

However, this one paragraph dismissal of the freedom of speech issue did not mention that the “business of fortunetelling” is really the business of selling speech and the effect of these anti-fortunetelling measures is to ban speech on the basis of its subject.   Indeed the Bartha court did not expressly recognize the service or product sold by those in the business of fortunetelling is nothing more nor less than speech.   Nor was there a recognition that much of ordinary as well as commercial speech is uttered by “commercial enterprises” and “businesses” and does not automatically lose its protection for that reason.   Our research reveals In re Bartha is inconsistent with contemporary and subsequent decisions of the California Supreme Court as well as the underlying rationale of California free speech guarantees.   Thus, we do not feel constrained to follow the conclusions or rationale of that decision.

In recent years, the California Supreme Court has made it abundantly clear the fact speech is sold rather than given away in no sense converts it into “commercial speech,” or otherwise removes it from the protections of article I, section 2 of the California Constitution.   In a 1976 case the court ruled Los Angeles cannot prohibit the roadside sale of maps showing the routes to movie stars' homes.   The unanimous opinion by Justice Clark held these “sales are not removed from First Amendment protection by the doctrine of commercial speech.   The doctrine has previously been limited in its application to upholding governmental regulation of advertising.  [Citations omitted.]   Clearly, [the map seller's] street vending is not advertising per se.   Her activity constitutes sale of the printed information itself, not its advertisement.”  (Welton v. City of Los Angeles (1976) 18 Cal.3d 497, 503, 134 Cal.Rptr. 668, 556 P.2d 1119.) ²³  In a later decision Chief Justice Bird held free speech protections are “not limited to those who publish without charge ․ [Speech] does not lose it constitutional protection because it is undertaken for profit.”  (Guglielmi v. Spelling-Goldberg Productions, supra, 25 Cal.3d 860, 868, 160 Cal.Rptr. 352, 603 P.2d 454.)

 If there were any lingering doubts whether the California free speech guarantees indeed extends to “sentiments” which are offered for sale not merely those which are volunteered free of charge, they were laid to rest in People v. Glaze, supra, 27 Cal.3d 841, 166 Cal.Rptr. 859, 614 P.2d 291.   This case was expressly grounded on California free speech guarantees.  (27 Cal.3d at p. 844, fn. 2, 166 Cal.Rptr. 859, 614 P.2d 291.)   The Supreme Court struck down an ordinance requiring adult picture arcades to close during the early morning hours because it unduly restricted the arcade owner's rights under article I, section 2.   In doing so, the court held, “[t]he fact that a picture arcade is a profit-oriented business [citations omitted] ․ is not relevant.”  (Id., at p. 846, 166 Cal.Rptr. 859, 614 P.2d 291.)   Similarly, the fact a person predicts the future as a “profit-oriented business” is not relevant to whether that speech activity is entitled to the full protection of article I, section 2 of the California Constitution.

The Oregon Court of Appeal also dealt with this issue.   In the course of ruling the Roseburg “occult arts” ordinance violative of the Oregon Constitution's free speech guarantee, the court held:

“The fact that the ordinance prohibits communication only if it is offered for ‘hire or profit’ does not insulate it from scrutiny under Article I, section 8, which forecloses the enactment of laws ‘restraining’ free expression and ‘restricting’ the right to speak and write, not just laws flatly prohibiting those rights.   Obviously, a law prohibiting a speaker or writer from accepting a fee for his communication constitutes a restriction on his right to speak or write.  (Citations omitted.)   The protections of Article I, section 8, are not limited to those citizens with the means and inclination to offer their views gratuitously.”  (65 Or.App. 102, 670 P.2d 201, 204.)

Just as the Oregon Constitution bans any law “restraining” or “restricting” free speech, the California Constitution provides no law may “restrain” or “abridge” free speech.   And just as an ordinance prohibiting someone from charging a fee for telling fortunes “constitutes a restriction on his right to speak” (ibid.) that same prohibition would “restrain or abridge [that fortuneteller's] liberty of speech ․”  (Cal. Const., art. I, § 2.)   Thus even though a prohibition focuses only on fortunetelling for consideration and not fortunetelling which is offered gratis it fails under the California Constitution for the same reasons it fails under the Oregon Constitution.

Were ordinary speech relegated to the lesser protections of commercial speech merely because the speaker received compensation for his or her words, the bulwark of the constitutional free speech protection would be reduced to rubble.   After all, few books, magazines, or newspapers are distributed to their audiences free of charge.   Many students pay consideration usually in the form of tuition for the classroom lectures delivered by their professors and teachers.   Actors, public lecturers, and a host of other “speakers” must sell their speech or go into another line of work.   Moreover, to adopt the characterization of the Bartha opinion, publishers are in the “commercial business” of publishing, writers in the “commercial business” of writing, actors are in “show business,” lecturers are in the “commercial business” of lecturing, etc.   All of these publications and speakers would be stripped of the full protections of the California Constitution were the mere fact of receiving consideration enough to shift them to the category of commercial businesses uttering commercial speech.   It then would be possible for a government to allow speakers to earn compensation for saying things that particular government happened to approve but to deny them the right to be paid for saying things those in charge found objectionable.   Thus government could simultaneously promote speech it liked and chill speech it did not.   This is just the sort of mischief article I, section 2 of the California Constitution has sought to prevent for 134 years.

DISPOSITION

 We hold the Azusa Municipal Code section 8.52.060 infringes petitioner's rights to free speech and free expression under the United States and California Constitutions.   Accordingly, we find it unnecessary to consider petitioner's possibly meritorious contention that this code section likewise violates First Amendment guarantees of freedom of religion.   We reverse the trial court's order denying injunctive relief and remand for further proceedings consistent with this opinion.

FOOTNOTES

1.   Speech is defined as “the act of speaking:  communication or expression of thoughts in spoken words” (Webster's Third New Internat. Dict. (1981) p. 2189, and the verb “speak” is defined as “to give oral expression to thoughts, opinions, or feelings.”  (Id. at p. 2185.)

2.   Among the types of conduct deemed to be protected by the free speech guarantees are non-obscene nude dancing (Morris v. Municipal Court (1982) 32 Cal.3d 553, 186 Cal.Rptr. 494, 652 P.2d 51), parades (Dillon v. Municipal Court (1971) 4 Cal.3d 860, 94 Cal.Rptr. 777, 484 P.2d 945), and picketing (United Farm Workers of America v. Superior Court (1976) 16 Cal.3d 499, 128 Cal.Rptr. 209, 546 P.2d 713.)  (See also Application of First Amendment Theory to Particular Forms of Conduct:  Flag Desecration (1973) 21 UCLA L.Rev. 46;  Hair Regulation, Id. at p. 57 and Symbolic Speech (1975) 22 UCLA L.Rev. 968.)

3.   Merriam-Webster Pocket Dictionary (1964) page 198.   Similarly Webster's Third New Internat. Dict. defines fortunetelling as “the art or practice of telling fortunes.”  (Id. at p. 896.   Italics supplied.)

4.   Webster's Third New Internat. Dict. (1981) page 1818.   In that same dictionary, the verb prophesy is defined as “to utter or announce by or as if by divine inspiration.”  (Id. at p. 1818.

5.   (See, e.g., Police Department of Chicago v. Mosley (1972) 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 [content is limited to non-union activities];  Cohen v. California (1971) 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 [content is “offensive” language], reh. den. (1971) 404 U.S. 876, 92 S.Ct. 26, 30 L.Ed.2d 124;  Brandenburg v. Ohio (1969) 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 [content is advocacy of criminal syndication];  Tribe, American Constitutional Law (2d ed. 1978) 580–588;  Karst, Equality As A Central Principle In The First Amendment (1975) 43 U.Chi.L.Rev. 20;  Stone, Restrictions Of Speech Because Of Its Content:  The Peculiar Case of Subject-Matter Restrictions (1978–79) 46 U.Chi.L.Rev. 81.)

6.   Despite the stringent test Brandeis applied in Whitney, he was concurring in a decision which upheld the constitutionality of a criminal syndicalism statute.   This holding was expressly overruled in Brandenburg on grounds “Whitney has been thoroughly discredited by later decisions.  [Citations omitted.]   These later decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”  (Brandenburg v. Ohio, supra, 395 U.S. 444, 447, 89 S.Ct. 1827, 1829, 23 L.Ed.2d 430.)Brandeis' concurring opinion in Whitney, on the other hand, has survived as one of the classic statements of the rationale and scope of the right to free speech.  (See, e.g., the recent opinions of Consolidated Edison v. Public Serv. Comm'n (1980) 447 U.S. 530, 100 S.Ct. 2326, 65 L.Ed.2d 319;  Central Hudson Gas v. Public Service Comm'n (1980) 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341;  Herbert v. Lando (1979) 441 U.S. 153, 99 S.Ct. 1635, 60 L.Ed.2d 115;  Landmark Communications, Inc. v. Virginia (1978) 435 U.S. 829, 98 S.Ct. 1535, 56 L.Ed.2d 1;  Linmark Associates, Inc. v. Willingboro (1977) 431 U.S. 85, 97 S.Ct. 1614, 52 L.Ed.2d 155.   The test quoted above has been reiterated in slightly different words in subsequent opinions also.   For instance, over forty years ago Justice Black held “[T]he substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished.”   (Bridges v. California (1941) 314 U.S. 252, 263, 62 S.Ct. 190, 194, 86 L.Ed.2d 192.)   And in a recent case, Chief Justice Burger stated for a unanimous court:  “Properly applied, the test requires a court to make its own inquiry into the imminence and magnitude of the danger said to flow from the particular utterance and then to balance the character of the evil, as well as its likelihood, against the need for free and unfettered expression.   The possibility that other measures will serve the State's interests should also be weighed.”  (Landmark Communications, Inc. v. Virginia, supra, 435 U.S. 829, 842–843, 98 S.Ct. 1535, 1543, 56 L.Ed.2d 1.)

7.   In this opinion, we are making explicit a process which underlies the conclusions courts have reached as to other categories of speech.   As expressed by constitutional scholar Lawrence Tribe:“Although only the case-by-case approach [of evaluating regulations not aimed at the content of speech itself but motivated by other governmental purposes] takes the form of an explicit evaluation of the importance of the governmental interests said to justify each challenged regulation, similar judgments underlie the categorical definitions [of speech content which government may intentionally suppress—or is prohibited from suppressing].   Any exclusion of a class of activities from first amendment safeguards represents an implicit conclusion that the governmental interests in regulating those activities are such as to justify whatever limitation is thereby placed on the free expression of ideas.   Thus, determinations of the reach of first amendment protections [against either type of regulation] presuppose some form of ‘balancing’ whether or not they appear to do so.   The question is whether the ‘balance’ should be struck for all cases in the process of framing particular categorical definitions, or whether the ‘balance’ should be calibrated anew on a case-by-case basis.”   (Tribe, American Constitutional Law, supra, p. 583.)

8.   “The freedom of speech ․ guaranteed by the Constitution embraces at the least the liberty to discuss publicly and truthfully all matters of public concern without previous restraint or fear of subsequent punishment.   The exigencies of the colonial period and the efforts to secure freedom from oppressive administration developed a broadened conception of these liberties as adequate to supply the public need for information and education with respect to the significant issues of the times․  [Fns. omitted.]”  (Thornhill v. Alabama (1940) 310 U.S. 88, 101–102, 60 S.Ct. 736, 744, 84 L.Ed. 1093.)

9.   “While this view of the future is by no means new to man, the very existence of a loose international confederation of thinkers who have—or claim—an ability to grapple with the future constitutes a new and unique intellectual direction.   Though the concerted study of the future got its first major push only in the 1960s, it already possesses its own leaders, journals, schools of thought, associations, institutions, and jargon—in fact, all the accouterment of a fullfledged intellectual movement.”  (Dickson, Think Tanks (1971) at p. 326.)Among the research organizations involved in futurology (alternatively called futurism or futures research) are The Hudson Institute, Croton-on-Hudson, New York, the Institute for the Future, Middletown, Connecticut and the Rand Corporation, Santa Monica, California.   One of the prediction methodologies widely used by these think tanks is a subjective approach called Delphi.   A number of experts in a given field are independently polled about their forecasts as to a set of specific issues.   The panel is then informed of the collective responses and asked to support or change their own individual positions.   Through a succession of rounds the experts frequently arrive at a consensus or near consensus which is reported as the think tank's prediction about the future.   Another fundamental approach is “technological forecasting” which embraces mathematical modeling, trend extrapolation, relevance trees and the like.   (Dickson, supra, at pp. 328–334)The largest association in the area of futurology is The World Future Society “an umbrella ․ for many futuristic pursuits and interests” which “claims 30,000 members in 40 countries ․ and routinely draws thousands to its annual meetings.”  (Gimlin, “Peering Into The Future.”   Congressional Quarterly, August 4, 1983.)   Among the leading journals are The Futurist, Technological Forecasting, and Futures.   Among the early significant books about futurology and prediction of the future are Bell (ed.) (1968) Toward The Year 2000, De Jouvenel (1967) The Art Of Conjecture, Flechtheim (1965) History and Futurology, Jantz (1966) Technological Forecasting In Perspective, Kahn and Wiener (1967) The Year 2000, Lewinsohn (1962) Science, Prophecy and Prediction, McHale (1969) The Future Of The Future.

10.   (See, e.g., Hauter v. Zogarts (1975) 14 Cal.3d 104, 120 Cal.Rptr. 681, 534 P.2d 377;  Chavez v. Citizens For A Fair Farm Labor Law (1978) 84 Cal.App.3d 77, 148 Cal.Rptr. 278.)   But false statements about matters of opinion sometimes may be the predicate for an action for fraud where the speaker does not honestly believe the opinion he expresses and expects the listener to rely on that opinion.  (Cooper v. Jevne (1976) 56 Cal.App.3d 860, 128 Cal.Rptr. 724.)

11.   Among the university-affiliated research groups are the McDonnell Laboratory for Psychic Research, Washington University, St. Louis, Parapsychology Laboratory, St. Joseph's University, Philadelphia Pennsylvania, Institute for Parapsychology, Duke University, Durham, North Carolina.   Among the independent research organizations in this field are Parapsychology Research Group, Inc., Society for Psychical Research, The Mobius Society and the Mind Science Foundation.Some of this research—and the debate about what it suggests about the validity of psychic phenomena—was surveyed in a recent production of Nova, an educational television series.   Entitled “The Case of ESP,” this program also described instances where archaelogists purportedly employed psychics to locate ancient ruins under the sea (Transcripts, Nova, “The Case of ESP (January 17, 1984) pp. 18–19) and the military invested large sums in investigating applications of psychic powers to intelligence gathering and other purposes (Id. at pp. 19–21;  see also Time (January 23, 1984) p. 17.)   One of the participants also discussed an instance where a district attorney employed a psychic research organization to determine where a missing girl was located and her condition.  (Id. at p. 18.)Some studies of the existence of psychic powers are described more fully in the following books:  Carrington (1939) Laboratory Investigations Into Psychical Phenomena;  Soal (1954) Modern Experiments In Telepathy;  Schmeidler (1958) ESP and Personality Patterns;  Rhine (1962) Parapsychology:  Frontier Science of the Mind;  Rhine (1967) ESP in Life and Lab;  Ryzl (1970) Parapsychology:  A Scientific Approach;  Ostrander (1970) Psychic Discoveries Behind the Iron Curtain;  Van Over (1972) Psychology and Extrasensory Perception;  Thouless (1972) From Ancedote to Experiment in Psychical Research;  Pratt (1973) ESP Research Today;  Rhine (1975) PSI, What is It?;   Rogo (1975) Parapsychology:  A Century of Inquiry;  Targ and Puthoff (1977) Mind Reach:  Scientists Look at Psychic Ability;  Ehrenwald (1978) The ESP Experience:  A Psychiatric Validation;  Mauskopf and McVaugh (1980) The Elusive Science:  Origins of Experimental Psychical Research;  Abel and Singer (1981 ed.) Science and the Paranormal:  Probing the Existence of the Supernatural.   Some of the findings produced through this research have been sharply criticized in Hansel (1980) ESP and Parapsychology:  A Critical Reevaluation and Randi (1982) Flim-Flam!:  Psychics, ESP, Unicorns and Other Delusions.The existence of psychic phenomena likewise has been the subject of theoretical speculation.  (See, e.g., Lechan (1974) The Medium, the Mystic and the Physicist:  Toward a General Theory of the Paranormal;  and McCreery (1967) Science Philosophy and ESP.)   Even Sigmund Freud considered the topic worthy of serious consideration.   See the articles collected in Freud (1963) Studies in Parapsychology.The role of psychics in archeological research is examined in Goodman (1977) Psychic Archeology and Schwartz (1978) The Secret Vaults of Time.   Their use in criminal investigations is described in Archer (1969) Crime and the Psychic World and Yeterian (1982) Casebook of a Psychic Detective.

12.   Some of the research about precognition was described at Transcript, Nova, “The Case of ESP,” supra, pages 21–24.(See also Taylor (1980) Science and the Supernatural:  An Investigation of Paranormal Phenomena Including Psychic Healing, Clairvoyance, Telepathy and Precognition by a Distinguished Psysicist and Mathematician;  and Targ and Puthoff, supra, Mind Reach:  Scientists Look at Psychic Ability.   Several of the other books cited in footnote 11, supra, in part discuss research about precognition and related phenomena.)

13.   Some notion of the types of criminal conduct which sometimes accompany fortunetelling can be gleaned from recent incidents reported in newspapers.   One story told of a fortuneteller who purportedly took $43,000 from one person and over $4,000 from another after promising to bless their money to overcome marital, health and financial problems.   In another newspaper account, a person purportedly was induced to part with $15,000 to remove a “bad spell” the “reader and advisor” said could only be relieved by giving her “large sums of money.”

14.   The attempt to proscribe fortunetelling is to be distinguished from other superficially analogous criminal provisions.   It is constitutionally permissible to make criminal solicitation a crime because there is an intent on the part of the speaker that the listener subsequently engage in overt criminal conduct.   Gambling is constitutionally prohibitable because the speech creates an illegal contract which will require future conduct, that is, a payment by one party to another based upon the outcome of some subsequent event.   In contrast, fortunetelling, prophecy and the like involve solely the transmission of information and it is the transmission of that information itself, without any contemporaneous or subsequent conduct by the listener, which is prohibited.

15.   Penal Code section 332 reads in pertinent part as follows:“Every person who by any ․ game, device, sleight of hand, pretentions to fortune telling, ․ fraudulently obtains from another person money or property of any description, shall be punished as in case of larceny of property of like value.”  (Pen.Code, § 332.)

16.   “The ․ question is whether the line drawn by these ordinances is justified by the city's interest in preserving the character of its neighborhoods․  [T]he city's interest in attempting to preserve the quality of urban life is one that must be accorded high respect․  [¶]  Since what is ultimately at stake is nothing more than a limitation on the place where adult films may be exhibited, even though the determination of whether a particular film fits that characterization turns on the nature of its content, we conclude that the city's interest in the present and future character of its neighborhoods adequately supports its classification of motion pictures.   We hold that the zoning ordinances requiring that adult motion picture theaters not be located within 1,000 feet of two other regulated uses does not violate the Equal Protection Clause of the Fourteenth Amendment.  [Fns. omitted.]”  (Id. at pp. 71–73, 96 S.Ct. at pp. 2452–53.)   But Young cannot be construed to permit Azusa to use the zoning laws to exclude fortunetellers from all areas of the city.   In a later case, the Supreme Court clarified:  “The [Young v. Mini-Theatres] Court did not imply that a municipality could ban all adult theaters—much less all live entertainment or all nude dancing—from its commercial districts citywide.”  (Schad v. Mt. Ephraim, supra, 452 U.S. 61, 71, 101 S.Ct. 2176, 2184, 68 L.Ed.2d 671.)

17.   Since the Azusa ordinance is an outright prohibition on fortunetelling for consideration, we have no occasion to express an opinion as to the constitutionality of various types of regulations which might be placed on this particular form of speech such as requiring the fortuneteller to warn an individual or audience that fortunetelling has no scientific basis or restricting fortunetelling to certain locations or hours of operation.

18.   The California Supreme Court likewise has limited the lesser protections of “commercial speech” to those utterances or publications aimed at advertising a product or service.  (See cases discussed at pages 868–870, infra.)

19.   The California Supreme Court has recognized the not-necessarily-rational connotation of the term “sentiment.”   In Guglielmi v. Spelling-Goldberg Productions, supra, 25 Cal.3d 860, 867, fn. 8, 160 Cal.Rptr. 352, 603 P.2d 454, the court observed, “It is noteworthy that the California Constitution provides that ‘[e]very person may freely speak, write and publish his or her sentiments on all subjects ․’  ․ As Webster confirms, ‘sentiments' encompasses not only thoughts but the attendant emotions.”

20.   We do not address the constitutionality under article I, section 2 of a narrowly drawn statute prohibiting fortunetellers from falsely claiming knowledge they subjectively know they do not possess.   Thus it is conceivable a fortuneteller could be prohibited from falsely claiming to see the future in a crystal ball.   But that prohibition could not be constitutionally applied to a fortuneteller who honestly believed he or she saw the future in that crystal ball.   Nor could it be applied to a fortuneteller who merely expressed an opinion he or she saw the future in a crystal ball.

21.   The ordinance, City of Roseburg Municipal Code section 10.04.060, provides:“ ‘A. No person shall for hire or profit engage in any practice of occult arts, either public or private, as that term is described and defined in subsection B of this section.“ ‘B. “Occult Art” means the use or practice of fortunetelling, astrology, phrenology, palmistry, clairvoyance, mesmerism, spiritualism or any other practice or practices generally recognized to be unsound and unscientific whereby an attempt or pretense is made:“ ‘1. To reveal or analyze past incidents or events;“ ‘2. To analyze or to define the character or personality of a person;“ ‘3. To foretell or reveal the future;“ ‘4. To locate by such means lost or stolen property;“ ‘5. To give advice or information concerning any matter or event.“ ‘C. Nothing contained in this section shall be construed to prohibit or prevent:“ ‘1. Any duly organized and recognized religious organization which promulgates religious teachings or beliefs involving spiritualism or similar media from holding their regular meetings or services;“ ‘2. Any school, church, fraternal, charitable or other benevolent organization from utilizing occult arts for any bazaar or money-raising project, provided that all money so received is devoted wholly and exclusively to the organization sponsoring such affairs.   In such case, the money so received shall be considered as a donation for benevolent and charitable purposes.’   A violation of the ordinance is punishable by a fine or imprisonment or both.   City of Roseburg Municipal Code.   §§ 10.14.160, 10.08.010.”  (Marks v. City of Roseburg, supra, [670 P.2d at p. 202.)

22.   Two other appellate cases upheld the constitutionality of versions of the Los Angeles anti-fortune telling ordinance.  Allinger v. City of Los Angeles (1969) 272 Cal.App.2d 391, 77 Cal.Rptr. 257;  Gladstone v. Galton (9th Cir.1944) 145 F.2d 742.   But neither involved a challenge on free speech grounds or dealt with that issue.   Instead the appellants in those cases raised an equal protection argument.

23.   Although this case happens to involve printed speech, its rationale obviously extends to the spoken word.   That is, the act of charging for a verbal utterance no more transforms it into an advertisement than selling a map or a book or a newspaper converts the latter into an advertisement.

JOHNSON, Acting Presiding Justice.

THOMPSON and MERRICK,* JJ., concur.