Did Fortune Tellers See this Coming? Spiritual Counseling, Professional Speech, and the First Amendment

Abstract

Spiritual counseling practices, long viewed with suspicion and subject to widespread bans at the state and local level, have only recently been examined in the context of First Amendment rights. While challenges to spiritual counseling bans on free speech grounds have been successful, burdens on the speech — such as licensing fees — remain pervasive. Although very little case law exists, a 2013 Fourth Circuit case upheld a flat tax levied on spiritual counselors in Chesterfield County, Virginia. The court found that spiritual counselors engage in professional speech, which allows for “reasonable regulation” under the First Amendment. This Comment explores the First Amendment issues implicated by the regulation of spiritual counselors, and argues that the attempt to categorize the activities of spiritual counselors as ‘professional speech’ is a misapplication of the doctrine. Spiritual counselors are far more similar to religious counselors, who are not subject to regulation under the professional speech doctrine, than to secular counselors such as lawyers, where a professional set of standards exist. The belief systems and practices of those who consider themselves to be spiritual counselors are broad, varied, and typically grounded in supernatural claims, much like traditional religious practices. Since spiritual counseling does not fall under the professional speech doctrine, this Comment argues that attempts to regulate spiritual counseling practices should be subject to strict scrutiny. While states and localities have a valid interest in protecting consumers from fraudulent spiritual counseling, they cannot protect from fraud that cannot be proven, and when it can be proven, fraud and unfair trade practices statutes exist to punish wrongdoers. This approach is the most narrowly tailored way to properly balance the state’s interest with the First Amendment rights of spiritual counselors. The counselors’ beliefs and the manner in which they share them may be dubious to some, but unless it can be proven that the spiritual counselor intended to defraud, their speech, like any other religious or spiritual claims, deserves the highest level of speech protection.