The Hon. Richard S. Arnold stepped down as Chief Judge of the United States 1 Court of Appeals for the Eighth Circ uit at the close of business on April 17, 1998. He has been succeeded by the Hon. Pasco M. Bowman II. The H on. Stephen N. Limbaugh, United States District Judge for the Eastern 2 and Western Districts of Missouri, sitting by designation. United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 97-2615NE

_____________ Michael Argello, * * Appellee, * * On Appeal from the v. * United States District Court * for the District of * Nebraska. City of Lincoln, A Home Rule * Charter City, * * Appellant. *

___________ Submitted: February 9, 1998 Filed: May 13, 1998

___________ Befor e RICHARD S. ARNOLD, Chief Judge, HANSEN, Circuit Judge, an d 1 LIMBAUGH, District Judge.

2

___________ RICHARD S. ARNOLD, Chief Judge.The Hon. Thomas D. Thalken, United States Magistrate Judge for the District 3 of Nebraska, sitting by agreement of the parties under 28 U.S.C. § 636(c). -2- The question presented is the co nstitutionality, under the First Amendment, of an ordinance of the City of Lincoln, Nebraska. The ordinance reads as follows:

It shall be unlawful for any person to exercise, carry on , advertise, or engage in the business or profession o f cla irvoyancy, palmistry, phrenology, mind reading , fortun etelling, or any other business, profession, or art o f revealing or pretending to reveal past or future events in the life of another.
Lincoln, Ne b. Municipal Ordinances § 9.40.030 (1997). The District Court held th e 3 ordinance invalid. We affirm, largely for the reasons given in the thorough and well

reasoned opinion of the District Court.
The ordinance is a content-based re gulation of speech. As such, it can be upheld only if it is supported by a compelling state interest. No such interest appears here. If the citizens of Linc oln wish to have their fortunes told, or to believe in palm-reading or phrenology, they are free to do so under our system of government, and to patroniz e establishments or “professionals” who purport to be versed in such arts. Government is not free to declare certain beliefs – for example, that someone can see into the future – forbidden. Citizens are at liberty to believe that the earth is flat, th at magic is real, and that some people are prophets. Se e Rushman v. City of Milwaukee , 959 F. Supp. 1040 (E.D. Wis. 1997), where the Court said:

The line between beliefs (or opinions) and facts is blurry at best. What seems like a provable fact to one person is only an opinion to another: paleontologists like Stephen J. Gould-3- think that evolution is a scientific fact, while creationists think itis on ly a false belief. Throughout history, many societie s hav e decided that the government should arbitrate truth an d fal sehood, fact and opinion; their record is not comforting

. Doubting the government’s talent for or benefit fro m declaring what is true an d what is not, the United States took adifferent approach; the First Amendment forbids th e governm ent

from arbitrating truth and fiction. A person i s free to write and sell books declaring the earth is flat . . ..

Id. a t 1041. In short, government may not prohibit a certain kind of speech simpl y because it disagrees with it. The City contends that the ordinance can be uphel d as a regulation of commercial speech. It reads the ordinance as li mited to fortunetelling for pay. The ordinance is not so limited on its face, nor has any court of Nebraska given it such a lim iting construction. Ev enif it were so limited, we do not believe this proscription would fall into th e commercial-speech category. The speech itself, fortunete lling, is not commercial simply b e cause someone pays for it. The speech covered by the ordinance, for the most part, does not simply propose a commercial transaction. Rather, it is the transaction. Th e speech itsel f is what the “client” is paying for. As Judge Thalken aptly remarked : “There is a distinct difference between the offer to tell a fortune (‘I’ll tell your fortune for twenty dollars.’), which is commercial speech, and the actual telling of the fortune (‘I see in yo ur future . . ..’), which is not.” Michael Argello v. City of Lincoln , Nebraska , No. 4:95CV3457 (D. Neb.) (order filed May 14, 1997), at p. 9. Nor can the ordinance be upheld as a prohibition against fraud. It does not require that fortu netellers know that they are conveying false information, or that they have no power of seeing into the future. For all we know, certain persons genuinely-4-

believe that they h ave such powers. In this belief they may be mistaken, but that is not a decision that government is free to make under our Constitution.
The District Court also took the view that the ordinance is overbroad, but we need not pursue thi s aspect of the analysis. Enough has been said already to indicate ou r reasons for affirmance. The judgment is affirmed. A true copy.
Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.