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Tuesday, August 20, 2013

Tattoo Parlor Protected by the First Amendment

Although Psychic Sophie was not entitled to First Amendment protection for her business (see yesterday's post), a tattoo parlor in Mesa, Arizona was when a court determined that tattoos are "pure speech" and the process of tattooing is "expressive activity" under the First Amendment.
In the City of Mesa, tattoo parlors and other specified businesses must obtain a “Council Use Permit” too operate in the city. The City denied a permit for a tattoo parlor, and the tattoo artists sued arguing, among other things, that the ordinance violated their rights to free speech. The trial court granted the City’s motion to dismiss, but the appellate court reversed, finding that the business of tattooing is entitled to First Amendment protection.

On appeal, the Arizona Supreme Court surveyed the divided case law on the subject, and concluded that a tattoo is pure speech, and the process of tattooing is expressive activity for First Amendment purposes, even though the artists may use standard designs and require payment for their services. Coleman v. City of Mesa, 230 Ariz. 352In other words, “[t]he fact that a tattoo artist may use a standard design or message, such as iconic images of the Virgin de Guadalupe or the words ‘Don't tread on me’ beside a coiled rattlesnake, does not make the resulting tattoo any less expressive.” The artists argued that the ordinance was not a valid time, place, and manner regulation, and the Supreme Court agreed because the permit scheme did not contain adequate standards to guide the Council’s unbridled discretion. Accordingly, the trial court erred in dismissing the tattoo artist’s complaint for failure to state a claim.


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