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Arizona Supreme Court determines tattoos are protected by the First Amendment

The Supreme Court of Arizona recently held that obtaining a tattoo is pure speech and is therefore subject to the highest protection by the First Amendment.

The plaintiffs in Coleman v. City of Mesa (Case No. CV-11-0351), requested a Council Use Permit (CUP) from Mesa, Arizona, to open a tattoo parlor.  The city zoning commission recommended to the city council that the CUP be approved; however, the city council voted to deny the permit after several speakers came to the meeting and expressed support or opposition to the parlor.  The plaintiffs filed suit against Mesa, claiming that the CUP was denied on the basis that the business would be operated as a tattoo parlor, in violation of the First Amendment.  The Trial Court granted Mesa’s 12(b)(6) motion to dismiss, concluding that the denial of the CUP was a reasonable and rational regulation of land use.  The appellate court reversed, holding that obtaining a tattoo was pure speech, subject to the highest protection by the First Amendment.

Defendant Mesa argued that the City Council denied the CUP by applying general law, which incidentally affects speech-related activities.  However, while the law may apply to non-speech related issues, it is not insulated from constitutional ramifications if applied to protected speech.

As a case of first impression, the court attempted to determine whether a tattoo is a constitutionally protected expression of speech.  Courts are divided on the issue as to whether a tattoo is considered pure speech or if it conduct with and expressive component.  If a tattoo is considered pure speech, then it is protected, and can only be regulated through reasonable time, place, and manner restrictions.  The Supreme Court of Arizona looked to the Ninth Circuit’s opinion in Anderson v. City of Hermosa Beach, 621 F. 3d 1051 (9th Cir. 2010) for guidance on the issue. In Anderson, the Ninth Circuit determined that a tattoo is pure speech and not merely conduct.

Other courts, however, have reasoned that a tattoo should be considered conduct.  The Northern District of Illinois concluded the act of getting a tattoo is “one step removed from actual expressive conduct. Hold Fast Tattoo, LLC v. City of North Chicago, 580 F. Supp. 2d 656, 660 (N.D. Ill. 2008).  Still others have determined that the process of getting a tattoo simply is not protected. Yurkew v. Sinclair, 495 F. Supp. 1248, 1253-55 (D. Minn. 1980); State ex rel Medical Licensing Bd. v. Brady, 492 N.E.2d 34, 39 (Ind. Ct. App. 1986);  State v. White, 560 S.E.2d 420, 422 (S.C. 2002).

The Arizona Court agreed with Anderson, which stated that the only difference between a tattoo and other protected forms of art is that the work is “engrafted onto a person’s skin rather than drawn on paper.” 621 F.3d at 1060.  Additionally, tattoos are not only the work of the artist, but are the self-expression of the person displaying the tattoo’s permanent image.  The fact that the tattoo artist uses standard or iconic images does not take away from the fact that the act is protected speech.

While there can be some regulation of tattooing involving reasonable time, place, and manner restrictions, (for example, taxes, health regulations, and nuisance ordinances), the reason for the regulation cannot be purely because the business is a tattoo parlor.  Therefore, the Mesa City Council might have erred in denying the CUP for reasons other than reasonable restrictions.

The Supreme Court of Arizona’s full opinion is available here.

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