Tattoos are pure speech, Ariz. appeals court rules

Monday, November 7, 2011

Tattooing businesses are engaged in forms of free expression, an Arizona appeals court has ruled in reinstating the civil rights claim of a couple that was denied a permit to open such a business in the city of Mesa.

Ryan and Teresa Coleman applied for a permit to operate a tattoo parlor at a strip shopping center in July 2008. In February 2009, the Mesa City Council voted 3-2 to deny the license, finding that a tattoo parlor was not “appropriate” for the neighborhood. Several council members said such a business might lower property values and increase crime.

In March 2010, the Colemans sued in state court, raising a variety of constitutional claims. One was that the permit denial violated their free-expression rights under the First Amendment of the U.S. Constitution and a free-speech provision of the Arizona Constitution. The city filed a motion to dismiss, arguing that the denial was simply a rational exercise of its zoning powers.

An Arizona trial court granted the city’s motion, finding that the council’s decision “was a reasonable and rational decision based upon community concerns.” The lower court assumed that tattooing was a form of free expression but applied a very low standard for the city to meet in restricting parlors.

On appeal, the Arizona Court of Appeals reversed the lower court, reinstating the free-speech claims in its Nov. 3 decision in Coleman v. City of Mesa.

The appeals court acknowledged that some courts had found that “the process of tattooing is conduct without an expressive component and therefore is not entitled to protection under the First Amendment.” But the court ruled that tattoos constituted “pure speech” and were “entitled to full protection under the First Amendment.”

“The sole purpose of a tattoo is to communicate thoughts, emotions, or ideas as rendered by the tattoo artist,” the opinion said.

Because tattoos are pure speech, the court said, the business tattooing “also constitutes pure speech.” It sent the case back to the trial court to evaluate the Colemans’ free-speech claims.

The lower court now will have to determine whether Mesa imposed a reasonable time, place and manner restriction in denying the permit, or whether it infringed upon First Amendment freedoms and did not act in a narrowly tailored way.

Whatever the ultimate outcome of the lawsuit, the Arizona appeals court’s decision is significant in establishing that tattooing is a form of expression that deserves First Amendment protection.

Tags: , ,