Arizona Supreme Court: "Tattoos are Free Speech"
Backpiece by Tim Kern.
Tattooing got another huge legal boost on Friday when the Arizona Supreme Court ruled that tattooing is free speech in the zoning case of Coleman v. City of Mesa (link to decision). This is the first time in the United States that a state supreme court has extended First Amendment protections to tattooing.
A federal court, the U.S. 9th Circuit Court of Appeals, ruled in 2010 that "tattooing is purely expressive activity fully protected by the First Amendment" in the case of Johnny Anderson v. City of Hermosa Beach, which was also a case where tattooists were denied the right to open up shop due to zoning restrictions. [My giddy discussion of that case can be found here.]
The Arizona Supreme Court noted that courts have been divided on the issue of tattooing being constitutionally protected expression (and gave example of different cases) but found that "the approach adopted in Anderson is most consistent with First Amendment case law and the free speech protections under Arizona's Constitution."
In both the Coleman and Andersen cases, the courts found that, not only tattoos but the process of tattooing, and therefore, the business of tattooing are protected speech. The Arizona Supreme Court also noted that this protection applies even if an artist is using "standard designs or patterns" like flash, just as cable TV companies are "engaged in protected speech activities even when they only select programming originally produced by others" (citing Turner Broad. Sys., Inc. v. FCC).
This is a win for the Colemans but the fight isn't over. The case now goes back to the superior court, which originally dismissed the tattooists' claims as a matter of law saying that the Mesa City Council decision in 2009 to deny the Colemans a permit to open their tattoo shop was "a reasonable and rational regulation of land use." The Colemans appealed and the Arizona Appeals Court overturned the Superior Court's dismissal finding that they should have had the opportunity to make their case. The City of Mesa appealed that, which is how the case found its way to the Arizona Supreme Court.
The Superior Court will now look at whether the decision to deny the permit served a compelling governmental interest and was reasonably related to furthering that interest. Local government does have an interest in regulating tattooing by protecting the health and safety of the public. The issue is whether the rules further that purpose.
In this case, the Mesa planning board had recommended that the Colemans be given a permit subject to certain conditions, like limiting the hours of operation, loitering, refusing to do racist and gang tattoos, and also working with police to identify known gang tattoos. They agreed to those conditions. But the Mesa City Council denied the permit, according to the Yuma Sun, "after hearing concerns from neighbors about the shop possibly drawing crime and reducing property values. Only Mayor Scott Smith was in support." Now Mesa needs to show that this decision was not arbitrary and irrational and did not go against the Equal Protection and Due Process clauses of the Constitution.
I'm guessing, or at least hope, that this case will settle. The tax payers of Mesa have already spent enough money on trying to stop a business from opening, when all a long they could have taxed them and gained revenue for the city -- and also made Mesa more artful.