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:
A couple of weeks ago, 11-year-old Willow Smith (of the Will & Jada Smiths) whipped the media into a little tizzy by revealing what most thought was a tongue piercing. It was actually a magnet.
Silly gossip, but it put a spotlight on the question: How young is too young for a piercing & tattoo? Over the weekend, Fox News & CNN ran a story asking this very question. As noted in the article, there are instances where families are letting kids as young as 10 years old get tattoos -- like Jerry Garrison who lost custody of his grandson for allowing him to be part of "family tradition" as a pre-teen, or Chuntera Napier who was arrested after her young son got a memorial tattoo for his brother.
According to the National Conference on State Legislature's on "Tattoos & Body Piercings for Minors," there's a fight going on between parents who want final say in how they raise their kids and the government:
The battle over whether or not teenagers may receive tattoos or body piercings is typically one fought between parents and children, but the same debate has entered state legislatures. Advocates of prohibiting minors from getting tattoos or body piercings want state laws to reflect parental rights and allow them to have the final word on minors altering their appearances in this way.Legal battles aside, what about the ethical duties of tattooists? Should some obligation be placed on them to decide whether this is the right thing for the child? If so, would it be a case-by-case basis or general rule -- no one under a certain age no matter what?
My friends and I like to joke around about what our bodies would look like if we were able to get tattooed as teenagers. I'd probably be covered in Duran Duran portraits. Then again, I ended up removing a good tattoo that I got at age 24 (to celebrate passing the Bar exam) because it didn't fit with the overall body plan, which developed in my thirties. And how will I feel about this plan decades from now?
As we change and evolve, our tattoos remain fixed in one moment. That's what makes them wonderful. And that's what makes them difficult.
What do you think about the "how young is too young" question? Share your thoughts on the Needles & Sins FB group page under this post's comments section.
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.