Tattoos are a form of expression protected by the First Amendment, the Arizona Supreme Court has ruled in an opinion in favor of a couple who sought to open a tattooing business.
The decision conflicts with other court decisions that said tattooing was not expressive enough to trigger free-speech review.
In July 2008, Ryan and Laetitia Coleman sought a permit to operate a tattoo parlor in Mesa, Ariz. The city denied the permit request. The Colemans sued in 2010 in state court, contending that officials had violated their free-speech rights under the First Amendment of the U.S. Constitution and the free-speech provision of the Arizona Constitution.
A superior court judge dismissed the lawsuit, ruling that the city’s decision “that it would be appropriate and in the best interest of the community to deny the Application to establish a tattoo parlor at this location was a reasonable and rational decision based upon community concerns.”
The Colemans appealed to the Arizona Court of Appeals, which reversed the lower court and ruled in the Colemans’ favor in November 2011.
The city then appealed for review to the Arizona Supreme Court. The state high court also disagreed with the trial judge and reinstated the Coleman’s lawsuit in Coleman v. City of Mesa on Sept. 7.
The Arizona high court relied in part on a 2010 opinion by the 9th U.S. Circuit Court of Appeals in Anderson v. City of Hermosa Beach. The Arizona opinion also examined whether the process of tattooing is a form of “purely expressive activity” deserving of First Amendment protection or whether it was merely “conduct with an expressive component.”
This speech-conduct dichotomy remains an important concept in First Amendment jurisprudence. If conduct is expressive enough, it merits free-speech review. Some court decisions, such as the South Carolina Supreme Court’s State v. White (2002), have determined that “the process of injecting dye to create the tattoo is not sufficiently communicative to warrant protections and outweigh the risks to public safety.”
The Arizona high court reached a different conclusion, noting that tattoos contain a variety of words, messages, images and artwork. “They can express a broad range of messages, and they may be purely decorative or serve religious, political, or social purposes,” the court wrote.
The Arizona court also found no free-speech difference between the process of creating the tattoo and the resulting image. Here the court made an analogy to the printing of books or the painting of artwork, noting that the U.S. Supreme Court protects the process and the final product.
The city of Mesa also argued that the permit was denied under a content-neutral, reasonable time, place and manner system. However, the Arizona Supreme Court determined that the Colemans suit should be reinstated because they had alleged sufficient facts that the denial of their permit request violated their free-speech rights.
The decision illustrates the divide in various courts over whether tattoos are a form of pure speech or merely conduct with an expressive element. (And it shows the timelines of the First Amendment Center’s National First Amendment Moot Court Competition, as the 2013 problem features the question of whether tattoos are a form of protected speech.)
David L. Hudson Jr. is a First Amendment Scholar at the First Amendment Center. This article first appeared on its website at www.firstamendmentcenter.org.
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