In the past, San Francisco followed the pattern (or tradition) of many communities by having on the books an ordinance which outright banned fortunetelling. However, several court decisions in the last twenty years, including a California Supreme Court decision in 1985, have determined that fortunetelling is a form of Constitutionally protected speech, and thus police over the years turned their enforcement attention to more pressing violations of the law. While many people, rather intuitively, feel that fortunetelling should be regulated by government—after all, they ask, shouldn't government do something to protect people from fraud?—the Constitutional questions raised and some of the answers suggested speak as much to freedoms of political speech and religion as they do to concerns about regulating commercial expression. On the one hand, as was argued in debates about the San Francisco ordinance, fortunetelling is actually a cultural artifact of certain groups, especially Gypsies, and to try to regulate this group of people who have traditionally shied away from being counted by governments (not surprising given how readily Nazis used civil data to track and slaughter Germany's many groups of unpopular minorities) strikes some as insensitive at best and racially biased at worst. On the other hand, and this is a reasonable critique of this view, much of the "tradition" of Gypsy fortunetelling has often involved the use of entertaining deceptions and outright frauds to take advantage of their many marks. Indeed, Robert Leysen, owner of Psychic Eye Book Shop in San Francisco, and a supplier of $50/hour "psychic" services, is quite explicit about what he sees as the ethnic nature of the problem: "I want the Gypsies out of this business. They give us a bad name, like Ms. Cleo." Nevertheless, short of condemning all Gypsy fortunetellers as criminals, the crafters of the new San Francisco ordinance sought to control Gypsy behavior while not appearing to target any particular ethnic community. In spite of this supposed concern to at least appear evenhanded, Supervisor Tony Hall, one of three "no" votes on the ordinance, said the law was an example of "racial profiling" and that it was clearly aimed at Gypsies.

Of course, one of the problems that one has when trying to regulate fortunetelling is to define exactly what it is. Fortunately, Peskin's ordinance does a detailed job of this, and partly in response to concerns the ordinance was "anti-Gypsy" in focus, includes more than forty different (supposedly cross-cultural) activities that now require a permit to professionally perform in San Francisco. These include telling fortunes via: "clairvoyance, cartomancy, psychometry, phrenology, spirits, tea leaves, tarot cards, scrying, coins, sticks, dice, sand, coffee grounds, [and] crystal gazing". In addition the ordinance covers: "effecting spells, charms, or incantations, or placing, or removing curses" plus "love powders or potions". In short, practicing magick—or merely pretending to (that's also covered)—is now recognized as a legitimate business in San Francisco, and one only requiring that practioners give up their fingerprints and other vital data to the San Francisco Police Department in return for a fortunetelling permit and a photo ID. Oh, and of course you'll need to fork over $357 to the city for the pleasure. Also, a background check is performed to screen out convicted frauds and other people with unacceptable criminal records. Provisions such as this made it into this ordinance in spite of other kinds of businesses which may be subject to accusations of "moral turpitude", such as the "late night" industry, being spared them. As Peskin put it, acknowledging the degree to which all laws are compromises partly based upon the ability of an affected community to organize resistance against government ignorance and arrogance: "Local psychics don't have a lobby."

Another question raised by the ordinance derives from its focus on fortunetelling itself. Many Tarot readers, and other kinds of readers and "psychics", have in response to the anti-fortunetelling regulations, started claiming they weren't actually reading (or telling) any fortunes at all. To these newest newage diviners, they are merely providing "information" to their clients, and so one can reasonably question whether in a strict reading of the ordinance these people and their activities would be covered. Any court challenge to the ordinance made on this basis would invite the fascinating possibility of ATA (American Tarot Association) types testifying about how anyone who knows anything about Tarot knows reading Tarot cards isn't REALLY about telling fortunes. Whether that claim will survive courtroom cross-examination remains to be seen. It hasn't fared too well in non-judicial debates.

Beyond the question of exactly who and what is covered by the new ordinance, there is a further and perhaps more universal consideration: what is really the motive for the making of such an ordinance and is it in fact unconstitutionally discriminatory? In reaction to the latter concern, the ordinance does exempt those who are ministers of a "bona fide" (i.e.—regulated) church, and who use that position to ply their fortunetelling and spellcasting practices. The ordinance in fact dictates that the church must have: "a creed or set of religious principles that is recognized by all churches groups of like faith". Exactly what the cut-off point is for "like faith" is not specified. Presumably, any and all "Christian" churches, no matter the similarity of their faiths, would qualify. But perhaps the First Church of Witchcraft and the United Satanist Churches will, in Peskin's hopeful interpretation, cancel each other out of bona fide altogether on account of the dissimilarity of their "like faiths". With respect to the purpose of the ordinance, this is stated very clearly:

The purpose of this legislation is to regulate fortunetellers, psychics, and other similar businesses so that the City and County of San Francisco can efficiently and thoroughly investigate fraud and deception; protect the public by preventing people who have been charged with deceptive practices from having easy access to persons who may be vulnerable to fraud or confidence games; to ensure that consumers are provided with information regarding services, rates, and complaint procedures, and to foster a positive business environment for legitimate practitioners within this industry.

Thus San Francisco has taken on the job of certifying "legitimate practitioners" of fortunetelling, a remarkable feat, even assuming, as the city does, that there are in fact any legitimate practitioners of fortunetelling. In essence, the way one certifies and legitimizes his fortunetelling practice in San Francisco is by paying the city a bribe, and at the same time, and in contradiction to this validation, one must allow the San Francisco Police Department to gather all necessary evidence to locate the prospective fraud should the likely circumstance occur that a foolish citizen feels he's been had by a "psychic" and confesses his idiocy (or "vulnerability") to the cops. Finally, as noted in a discussion about this on the jktarot Yahoo group, if Supervisor Peskin really believes his ordinance is going to separate the "good apples" from the bad ones, and yet has no other way to gauge these virtues and vices save one's willingness to be tracked by the SFPD chapter of Big Brother, then one has to question his honest interest in facilitating what he calls "the age-old craft of fortunetelling". Indeed, what San Francisco has actually done is to arrange for the destruction of ALL fortunetelling businesses in the city EXCEPT the now illegally unregistered ones, since the assumption of the ordinance is that fortunetellers may (or generally WILL) prey upon the "vulnerable", but now those same simpletons, informed and empowered by this ordinance, can receive their readin' (as Miss Cleo used to put it), complain they don't like the oracle and that they want their money back, and if the reader should protest, he's accused of "fraud", and his permit is revoked. Indeed, if legitimate clients can't be compelled to run this scam on the readers the police themselves may attempt it under the guise of doing investigative work or "stings".

Soon the world of fortunetelling, in the United States anyway, will become a bizarre one (OK, more bizarre than it is now) where aboveground "certified" scammers, who pay their bribes and give up their fingerprints, will continue to "empower" their marks with silly rituals and readings no more legitimate than those of their underground counterparts, who will attract their marks as always partly by the degree of mystery they generate by hiding in their respective niches of the woodwork. BUT, to paraphrase the Wizard of Oz, that most famous "psychic" swindler, as he so succinctly put it to the Scarecrow, what will pertinently distinguish the above-ground crew from the underground lot is the fact the "psychics" with permits will have a diploma—a piece of paper announcing their legitimate place in the world—in other words certifying their inclusion as regular and productive members of society. What a boost to their always wanting self-esteem! That this boost comes at the price of basically agreeing that their practice is so fraudulent that they need to register with the police to expedite the arrest and prosecution phase of their "careers" can hardly be counted as much of a negative when the opportunity to make some "psychics" (not to mention the goofy victims) feel good about themselves is nigh to being apprehended.

J. Karlin 7/30/03