The Fourth Circuit today affirmed the grant of summary judgment to Chesterfield County (VA) on free speech, free exercise, RLUIPA, and equal protection challenges brought by Patricia Moore-King. Ms. Moore-King, who practices spiritual counseling as Psychic Sophie, had challenged various Chesterfield County licensing and zoning restrictions that apply to her because she fits within the County Code’s definition of a “fortune-teller.” (For news coverage of the oral argument, see here.) Judge Duncan wrote the opinion for the court, in which Chief Judge Traxler and Judge Wilkinson joined.
From a doctrinal perspective, two noteworthy aspects of Moore-King v. County of Chesterfield are its discussion of the professional speech doctrine and its analysis of the difference between “religion” and a “way of life.”
With respect to professional speech, Judge Duncan writes that “the relevant inquiry to determine whether to apply the professional speech doctrine is whether the speaker is providing personalized advice in a private setting to a paying client or instead engages in public discussion and commentary.”
With respect to the definition of religion, Judge Duncan distinguishes between “personal and philosophical choices consistent with a way of life,” on one hand, and “deep religious convictions shared by an organized group deserving of constitutional solicitude,” on the other hand. The court determined that Moore-King’s practices fit in the philosophical-not-religious category: “That a wide variety of sources–the New Age movement, the teachings of Jesus, natural healing, the study of metaphysics, etc.–inform and shape Moore-King’s ‘inner flow’ does not transform her personal philosophical beliefs into a religion any more than did Thoreau’s commitment to Transcendentalism and idealist philosophy render his views religious.”
From a practice perspective, it may be worth noting that Chesterfield County prevailed even though the court knocked down its lead defense to the free-speech claim. That defense rested on two premises, both of which the panel rejected: “(1) fortune telling is inherently deceptive; and (2) inherently deceptive speech warrants no protection under the First Amendment.”
