The Hon. Richard S. Arnold stepped down as Chief Judge of the United States 1

Court of Appeals for the Eighth Circuit at the close of business on April 17, 1998. He

has been succeeded by the Hon. Pasco M. Bowman II.

The Hon. 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

___________

Before RICHARD S. ARNOLD, Chief Judge, HANSEN, Circuit Judge, and

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 constitutionality, 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 of

clairvoyancy, palmistry, phrenology, mind reading,

fortunetelling, or any other business, profession, or art of

revealing or pretending to reveal past or future events in the

life of another.

Lincoln, Neb. Municipal Ordinances § 9.40.030 (1997). The District Court held the

3

ordinance invalid. We affirm, largely for the reasons given in the thorough and wellreasoned opinion of the District Court.

The ordinance is a content-based regulation 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 Lincoln 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 patronize

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, that magic is real, and

that some people are prophets. See 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
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think that evolution is a scientific fact, while creationists think

it is only a false belief. Throughout history, many societies

have decided that the government should arbitrate truth and

falsehood, fact and opinion; their record is not comforting.

Doubting the government’s talent for or benefit from

declaring what is true and what is not, the United States took

a different approach; the First Amendment forbids the

government from arbitrating truth and fiction. A person is

free to write and sell books declaring the earth is flat . . ..

Id. at 1041. In short, government may not prohibit a certain kind of speech simply

because it disagrees with it. 

The City contends that the ordinance can be upheld as a regulation of commercial

speech. It reads the ordinance as limited to fortunetelling for pay. The ordinance is not

so limited on its face, nor has any court of Nebraska given it such a limiting construction.

Even if it were so limited, we do not believe this proscription would fall into the

commercial-speech category. The speech itself, fortunetelling, is not commercial simply

because 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. The

speech itself 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 your 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 fortunetellers 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
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believe that they have 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 this aspect of the analysis. Enough has been said already to indicate our

reasons for affirmance.

The judgment is affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.