Backpiece by Tim Kern.
Warning: This post will contain a lot of exclamation marks. If you've been reading this blog for a bit, you know how I get giddy when my tattoo passion and legal profession collide! That said, I will refrain from including excited face emojis.
On December 29th, the United States Court of Appeals for the Eleventh Circuit (11th Circuit) ruled in Buehrle v. City of Key West that tattooing constitutes artistic expression protected by the First Amendment and that the City of Key West's ordinance that strictly limits the number of tattoo shops permitted was not "a reasonable time, place, and manner restriction," meaning that the ordinance was not a constitutional restriction on free expression.
So, I'm going to break this case down, but before I do, you may want to first check my post "Federal Appeals Court: 'Tattoos are free speech protected by Constitution'" from September 2010 -- also with a bunch of exclamation marks -- about Johnny Anderson v. City of Hermosa Beach because the Buehrle v. City of Key West decision spends a lot of time quoting that case, as it deals with a ban on tattoo shops opening up in Hermosa Beach, CA.
In my post on the Andersen case, I also talk about that "reasonable time, place, and manner restriction" test, where restrictions on protected speech are permitted if they are "narrowly tailored" to serve the government's interest. There's no argument in either case that the cities have a real interest in regulating tattooing because of health and safety concerns. The argument is whether a total ban on tattooing -- or a highly restrictive ordinance -- is too broad to achieve this interest.
Now, onto the present case...
The Backstory Behind Buehrle
Brad Buehrle wanted to open up shop in the designated historic district of the City of Key West, Florida; however, the City refused to grant him a business license as it prohibits
tattoo shops in the historic district, and allows them only in the General Commercial District as a "conditional
Interestingly, as the 11th Circuit notes, Key West has a long history of restricting tattoo establishments. There was a blanket ban on tattoo shops operating on the island from 1966 to 2007, which, "according to local lore," arose at the request of the US Navy, "fear[ing] that its sailors would obtain ill-advised tattoos."
At the time this case was filed, about four years ago, the City permitted two tattoo businesses to operate in the historic district as "lawful non-conforming uses" -- which actually came out of the settlement of a prior lawsuit that challenged the ban.
Buehrle started his own legal battle against the city, challenging the new restrictive ordinance.
The Legal Battle
Buehrle and his legal team argued that the act of tattooing (not just the tattoo itself) is entitled to First Amendment protection and that the ordinance is an unconstitutional restriction on his freedom of expression.
The City argued that tattoo establishments would adversely impact the "character and fabric" of the historic district and it feared that, as the court wrote, "rash tourists will obtain regrettable tattoos, leading to negative association with Key West." And so more tattoo shops would lead to a bad rep and harm tourism.
[Before we go on with this case, take a moment to Google image search "Key West Spring Break" and you'll easily find negative associations that have nothing to do with tattoos.]
So this case ends up in United States District Court for the Southern District of Florida, and both parties file summary judgment motions (which means they sought a decision on the case without a full trial). The district court concluded that the act of tattooing constitutes protected speech BUT the City's ordinance was content neutral and constituted a reasonable time, place, and manner restriction. Buehrle appealed that decision, which leads us to this decision by the Court of Appeals for the 11th Circuit.
The Court of Appeals Decision
Here's where it gets good and the exclamation marks come in ...
The 11th Circuit says, yup, no argument here that tattooing is artistic expression protected under the First Amendment. Woohoo!
Then they cite Anderson v. City of Hermosa Beach, which I mentioned before. Here's what they wrote (with the legal citations removed):
We join the Ninth Circuit in holding that the act of tattooing is sheltered by the First Amendment, in large part because we find tattooing to be virtually indistinguishable from other protected forms of artistic expression. As our sister circuit observed, "[t]he principal difference between a tattoo and, for example, a pen-and-ink drawing, is that a tattoo is engrafted onto a person's skin rather than drawn on paper. . . . [A] form of speech does not lose First Amendment protection based on the kind of surface it is applied to." [...] ("[T]he tattoo cannot be created without the tattooing process. . . . Thus, as with writing or painting, the tattooing process is inextricably intertwined with the purely expressive product (the tattoo), and is itself entitled to full First Amendment protection.")
You betcha! There's actually some cool discussion about tattooing as an art form in this case, which makes reading the decision even more enjoyable.
Ok, then it talks about how you can regulate this expression, but only if the regulation "(1) is justified without reference to the content of the regulated speech, (2) is narrowly tailored to serve a significant governmental interest, and (3) leaves open ample alternative channels for communication of the information."
Buehrle never argued that the ordinance wasn't content neutral, so the court just had to determine whether the City met the other two tests. The 11th Circuit found that the City failed to demonstrate that the ordinance serves a significant governmental interest, and so it didn't even address the part about alternative channels of communication.
Not only that, court gives the City a smackdown! It called out the City, saying that a municipality "cannot get away with shoddy data or reasoning." Then it points out that "the only support for the City's claim that the ordinance serves
significant governmental interests consists of statements by Donald
Craig, the City's Director of Planning." That's the guy who said that tattoo shops would ruin that "character and fabric" of
the historic district, especially when those crazy spring break kids get shitty tattoos and never want to be reminded of their unspeakable time in Key West again! I'm paraphrasing. Oh, and Don also noted that Key West successfully prohibited tattoo establishments in the historic district for approximately forty years -- so what's the big deal now, Judgie?!
That didn't fly. Here's what the court said:
Particularly glaring is the lack of evidentiary support for the City's assertions concerning tattooing's purported effect on tourism. The City pointed to no study indicating that the operation of tattoo establishments in the historic district would impact the tourism industry. The City conducted no investigation and made no findings. It relied upon no expert testimony, findings made by other municipalities, or evidence described in judicial decisions. It failed to muster even anecdotal evidence supporting its claims. The closest the City came to presenting evidence on the impact on tourism was a passing reference to a few lines of a Jimmy Buffett song. And we are unsure whether even that reference fully supports its position.
Turns out the City referenced "Margaritaville" -- twice! -- to support the claim that drunk tourists are likely to get, then regret, tattoos if more tattoo shops are in the historic district. In a gorgeous footnote, the court states that, in the song, Buffet "seemingly far from suffering embarrassment
over his tattoo--considers it 'a real beauty.'" "The First Amendment requires more [than Jimmy Buffet]," wrote the court.
Therefore, the 11th Circuit ruled that the district court "erred when it concluded that the City's ordinance restricting the number of tattoo establishments in its
historic district was a reasonable time, place, and manner restriction
on protected expression."
Another win for tattooing!
What's particularly great about this case is that it addressed a law restricting tattoo shops in Key West rather than a total ban as in Hermosa Beach. So, municipalities that think they're going to play smart by claiming a law is not a ban but just a benign restriction, may need to think again.
I also want to point out that tattooers like Buehrle, Anderson, Ryan and Laetitia Coleman, and Ronald P. White have spent a lot of time and a lot of money challenging laws that restrict tattooing. As a community, as business owners, tattooers could have an even greater impact by pooling resources and working together to fight these restrictions.
Prior posts on tattooing and the First Amendment:
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.
Wonderful news on the tattoo law front! The U.S. 9th Circuit Court of Appeals just ruled, in Johnny Anderson v. City of Hermosa Beach, that "tattooing is purely expressive activity fully protected by the First Amendment, and that a total ban on such activity is not a reasonable 'time, place, or manner' restriction."
This is huge and it's implications may go beyond zoning restrictions and even affect cases related to employment discrimination, for example. I just read the full decision and will give y'all the highlights but first some background to the case:
Last May, in our First Amendment & Tattoos post, we first mentioned the Appellate Court agreeing to review the case of Johnny Andersen of Yer Cheat'n Heart Tattoo against Hermosa Beach, CA. Johnny wanted to relocate to Hermosa Beach but was denied because zoning laws prohibited tattooing in the city. He sued in 2006 and lost because the lower court found that tattooing was a service and "'not sufficiently imbued with elements of communication" to be protected as speech.
Wrong! according to today's published decision by the Appellate Court, and they really rip it apart.
So, I'll actually use my law license for some good today and break it all down for you. I'm picking out some key elements that may help other tattoo artists facing similar restrictions on doing business and hopefully we'll see more wins as well.