Louisiana State University Law Center LSU Law Digital Commons Journal Articles Faculty Scholarship 2014 Seeing It Coming since 1945: State Bans and Regulations of Crafty Sciences Speech and Activity Christine Corcos Louisiana State University Law Center, [email protected] Follow this and additional works at: https://digitalcommons.law.lsu.edu/faculty_scholarship Part of the First Amendment Commons Repository Citation Corcos, Christine, "Seeing It Coming since 1945: State Bans and Regulations of Crafty Sciences Speech and Activity" (2014). Journal Articles. 400. https://digitalcommons.law.lsu.edu/faculty_scholarship/400 This Article is brought to you for free and open access by the Faculty Scholarship at LSU Law Digital Commons. It has been accepted for inclusion in Journal Articles by an authorized administrator of LSU Law Digital Commons. For more information, please contact [email protected]. +(,121/,1( Citation: Christine A. Corcos, Seeing It Coming since 1945: State Bans and Regulations of Crafty Sciences Speech and Activity, 37 T. Jefferson L. Rev. 39 (2014) Provided by: LSU Law Library Content downloaded/printed from HeinOnline Fri Mar 2 15:05:31 2018 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your HeinOnline license, please use: Copyright Information Use QR Code reader to send PDF to your smartphone or tablet device SEEING IT COMING SINCE 1945: STATE BANS AND REGULATIONS OF "CRAFTY SCIENCES" SPEECH AND ACTIVITY Christine A. Corcos* Table of Contents I. INTRODUCTION ...... ..... 40 II. BANNING "CRAFTY SCIENCES" SPEECH ............. 51 A. A Short Review of Free Exercise and Free Speech Jurisprudence Principles ...................... 51 B. The Elements of the Crime: Claiming the Power and Advertising the Claim........................53 C. Advancing a Successful First Amendment Freedom of Religion Defense ........................... 55 1. Illinois and Nebraska Lead the Way........................56 2. New York Examines the Issue and Georgia Responds ........................ 60 3. California Enters the Debate.............................69 D. Advancing a Successful First Amendment Freedom of Speech Defense ...................... 74 1. In the State Courts: Spiritual Psychic Science Church of Truth v. City of Azusa ...... ........ 74 2. In the Federal Courts: Rushman Opens the Door........82 * Richard C. Cadwallader Associate Professor of Law, Louisiana State University Law Center; Associate Professor of Women's and Gender Studies, Louisiana State University and A&M College, Baton Rouge, Louisiana. This Article is the second in a series investigating the legal, political and social treatment of Spiritualism and the "crafty sciences" in the United States, the United Kingdom, other Commonwealth countries, and other European countries between 1848 and the present day. Many thanks to the attendees of the Conference on Law and Magic, Thomas Jefferson School of Law, June 5-6, 2014, to my LSU Law Center colleagues John Devlin, Ken Levy, and Christopher Tyson, to Kevin Baggett and Susan Gualtier, LSU Law Library, for assistance in obtaining research materials, and to Bogdan-Petru Buta (LL.M., LSU Law, 2014) and Kirbie Watson (J.D., LSU Law, 2015) for research assistance, and to the staff of the Thomas Jefferson Law Review for editorial assistance. I also wish to thank the LSU Law Center for research grant support to assist in preparation of this Article. As always, thanks to Cynthia Virgillio for administrative and secretarial assistance. 39 THOMAS JEFFERSON LAW REVIEW [Vol. 37:1 III. REGULATING CRAFTY SCIENCES SPEECH .......... 86 A. Evolving Approaches: Licensing and Permitting .......... 86 1. General Licensing Statutes ................... 87 2. Licensing Inconsistent with a More Permissive General Law.............................96 B. Residency Requirements ................. ..... 103 C. Zoning ........................... ......... 105 IV. STATE AND LOCAL BANS TODAY ................. 109 A. State Bans ....................................... 109 B. Local Bans ................ ............... 110 V. CONCLUSION ........................... ...... 114 I. INTRODUCTION After the Supreme Court's decision in United States v. Ballard,' Spiritualism's adherents, like other members of minority belief systems, could qualify for the same First Amendment protections as members of mainstream religions. 2 While Spiritualists could thus celebrate a certain level of victory,3 they still faced intolerance, if not outright persecution, from some government officials and state legislatures who continued to believe that common Spiritualist practices, which include communication with the dead,4 divination,' I. United States v. Ballard, 322 U.S. 78 (1944). 2. Id. at 86-87. Heresy trials are foreign to our Constitution. Men may believe what they cannot prove. They may not be put to the proof of their religious doctrines or beliefs. Religious experiences which are as real as life to some may be incomprehensible to others. Yet the fact that they may be beyond the ken of mortals does not mean that they can be made suspect before the law. Id. 3. Spiritualism as a belief system began on March 30 or 31, 1848 when young Margaret and Katherine Fox of Hydesville, New York, tricked their mother into believing that they could communicate with the spirits. By the time they thought better of the idea, news of their "spiritual gifts" had spread, and they were unable, or unwilling, to confess the truth, although Maggie admitted to the hoax in 1888. They spent the next thirty years giving demonstrations of their abilities. See RUTH BRANDON, THE SPIRITUALISTS: THE PASSION FOR THE OCCULT IN THE NINETEENTH AND TWENTIETH CENTURIES 1-41 (1983); NANCY RUBIN STUART, THE RELUCTANT SPIRITUALIST: THE LIFE OF MAGGIE Fox 438-39 (1st ed. 2005). 4. See e.g., Frank Bell Lewis, The Bible and Modern Religions, in INTERPRETATION, Oct. 1957, at 438, 439. 40 2014] STATE BANS, REGULATIONS, AND "CRAFTY SCIENCES" SPEECH and in some cases, faith healing, were simply shams for frauds perpetrated on members of the public who were grieving over the loss of loved ones.6 In their grief, members of the public sought out Spiritualist practitioners who convinced them that their deceased relatives and friends could speak to them through Spiritualist intervention, and often with the assistance of donations to- a Spiritualist church.7 In many cases, Spiritualist ministers did (and still do) offer assistance in the form of messages from loved ones to assist in guidance for the future.8 Necromancy ... is immemorial in the human race. Every society of record ... seems to have favored the belief in one form or another .... Our curiosity is piqued by the mysterious, and whatever is occult possesses a dark charm .... More mundane needs, too, encourage this belief among us: men seek the spirits of the dead to help them foresee earthly events and to satisfy their natural curiosity or turn such knowledge to their own advantage; they seek the spirits' aid for the solution of their problems and the healing of their infirmities. Id. 5. Divination is the art or practice of obtaining knowledge about the future or the unknown through supernatural or paranormal means and has a long history. See, e.g., DANIEL OGDEN, GREEK AND ROMAN NECROMANCY (2004); J. R. VEENSTRA, MAGIC AND DIVINATION AT THE COURTS OF BURGUNDY AND FRANCE (1998). "The action or practice of divining; the foretelling of future events or discovery of what is hidden or obscure by supernatural or magical means; soothsaying, augury, prophecy." IV THE OXFORD ENGLISH DICTIONARY 892 (2d ed. 1989). It is often associated with necromancy, which the OED defines as "The art of predicting the future by supposed communication with the dead; (more generally) divination, sorcery, witchcraft, enchantment." Id. at 284. 6. These practices strongly resembled "crafty sciences," which legislators in both common law and civil law countries had banned for centuries. See Vagrancy Act of 1824, 5 Geo. 4. c. 83 (U.K.) (providing the most famous in a long line of "rogue and vagabond" statutes); Witchcraft Act of 1735, 9 Geo. 2 c. 5 (U.K.) (forbidding both accusations of witchcraft and assertions of witchcraft); Edict du Roy, Pour la punition de differents crimes, Registr6 en Parlement le 31. Aoust. 1682 (Fr.) (providing Louis XIV's declaration that witchcraft was an impossibility). See generally BRANDON, supra note 3, at 98-126 (discussing the Spiritualist movement and its reception in nineteenth century America). 7. Carole Lynne, Crossing the Great Divide: Spirit Communication and Healing Through Spiritualism, GRIEFANDBELIEF.COM, http://www.griefandbelief.com/carole lynnel.htm (last visited May 7, 2015). 8. See Katie Wales, Unnatural Conversations in Unnatural Conversations: Speech Reporting in the Discourse of Spiritual Mediumship, 18 LANG. AND LIT. 347 (2009); see also ROBIN WOOFFITT, THE LANGUAGE OF MEDIUMS AND PSYCHICS: THE SOCIAL ORGANIZATION OF EVERYDAY MIRACLES (2006). Few scholars have studied the content or rhetoric of Spiritualist speech, in part because such interactions in the context of actual mediumship (as opposed to "reality shows" such as those such as on the show Long Island Medium familiar to general audiences) are normally private. 41 THOMAS JEFFERSON LAW REVIEW [Vol. 37:1 Some prosecutors and police did