Arizona Supreme Court extends constitutional speech protections to tattooing

September 11, 2012

Tattoos and lawIt’s always cause for celebration when individual First Amendment rights are expanded.

A ruling from the Arizona Supreme Court last Friday is no exception to that maxim.

The case, Coleman v. City of Mesa, held that tattooing is a constitutionally-protected form of expression.

Coleman started after the City of Mesa, Arizona, denied Ryan and Laetitia Coleman a business permit for a tattoo parlor in a local strip mall, and the couple filed suit.

In their complaint, the Colemans claimed that the denial violated their “rights to free speech, due process, and equal protection.”

The trial court granted the city’s motion to dismiss for failure to state a claim, holding that tattooing was not protected speech and that the city’s denial of the permit “was a reasonable and rational regulation of land use.”

The appeals court reversed, and the state supreme court affirmed the appeals court.

The city argued that the court need not decide whether tattooing was constitutionally-protected speech because, even if it is, the business permit denial was simply the application of a general law that only incidentally affected speech.

Arizona’s high court didn’t buy it.

Instead, after deciding that Mesa’s rules allow for the exercise of “unfettered discretion” in denying permits, it went on to determine whether tattooing is actually constitutionally-protected speech.

As stated earlier, it found in the affirmative.

In reaching this conclusion, it considered whether tattooing was “purely expressive activity,” which would entitle it to the highest levels of protection under the First Amendment, or “conduct with an expressive component.”

Tattooing would still be entitled to some protections if it fell into the latter category, but it would be subject to an essentially case-by-case analysis that provides effectual protection only if a court decides that the message is “sufficiently imbued with elements of communication.”

The Arizona high court ruled that tattooing is “purely expressive activity,” even when the symbols being tattooed are not the original work of the artist.

The court held that, with the practice of tattooing being entitled to full First Amendment protections, the business of tattooing was also so entitled, and thus the Colemans’ claim was erroneously dismissed.

Before we get into a discussion about what a big deal this is, I’ll let you know that the U.S. Ninth Circuit Court of Appeals already recognized that tattooing is protected speech under the First Amendment in Anderson v. City of Hermosa Beach, decided on September 9, 2010, almost two years prior to Coleman.

But this actually still is a big deal.

Why?

Because this is the first decision by a state’s highest court to make such a recognition.

Such decisions are the final word on interpretations of that state’s own constitution, and are the second to last word (behind the U.S. Supreme Court) on interpretations of the U.S. Constitution within that state.

In addition, the Coleman decision increases the likelihood of the issue coming before the U.S. Supreme Court.

As mentioned above, the Ninth Circuit recognized tattooing as a form of expression in 2010.

However, other circuits, such as the Eighth, have ruled that the “act of tattooing is one step removed from actual expressive conduct.”

Thus, we have a split among the circuits, and this Arizona state decision only hardens the division.

If the U.S. Supreme Court does eventually agree to rule on this issue, it may not be an earth-shaking paradigm shift for individual rights.

Nevertheless, as stated in the first sentence of this post, it’s always cause for celebration when individual First Amendment rights are expanded.