The Arizona Supreme Court will hear oral arguments in a free speech case at the end of March. The case may become another in the increasingly long list of free speech cases destined for the Roberts Court. Ryan and Laetitia Coleman v. City of Mesa, et al. (265 P.3d 422), involves a challenge to a decision of the Mesa City Council’s requirements and decision to deny a permit to a tattoo parlor to operate in a strip mall within the Dobson Ranch area of Mesa. The permit was denied because a tattoo parlor was not deemed “appropriate” for the neighborhood (paragraph 3). The Colemans sued Mesa, claiming that the decision violated their 1st Amendment right to freedom of speech, their rights to equal protection and due process under both the Arizona and U.S. constitutions.
The City Council denied the couple a permit due to ‘community concern’ rather than because of any facts regarding the impact of a tattoo parlor or similar business on property values or on any increases in crime rates that might be associated with the proximity of the business to the neighborhood. Additionally, Ryan and Laetitia Coleman were willing to accede to extra conditions on their permit to alleviate such concerns. Thus, the case before the Arizona Supreme Court also deals with the ability of the City Council of Mesa to make arbitrary determinations about which businesses should be able to locate in various parts of the city.
Surprisingly, the Arizona appellate court’s decision extended free speech protection to the Coleman’s business by arguing that tattoos are a form of artistic expression. Judge Timmer’s opinion reads like a textbook application of free speech/expression doctrine. First, the judge determined that tattooing is covered under the rubric of free speech, and that umbrella also embraces the business of creating and applying tattoos to the skin. Although other state and federal district courts have argued that tattoos are not a form of expression and are thus not covered by the First Amendment, the Ninth Circuit, has argued differently, finding that “tattooing is purely expressive activity and therefore entitled to the fullest protection afforded by the First Amendment.” Judge Timmer analogizes tattoos to art painted on canvas. Quoting the Ninth Circuit: “[A] form of speech does not lose First Amendment protection based on the kind of surface it is applied to.” (621 F.3d at 1061) And the sale of the speech does not negate the protections of the First Amendment either: “Just as the sale of newspapers and works of art are entitled to the full protection afforded by the First Amendment, the sale of tattoos must be afforded the same protection.” (paragraph 16 citing 486 US 750 1988)
Once the tattoo, its application, and sale are considered speech, Judge Timmer then examines the permitting process. If it is neutral, then Mesa must merely show that it is a valid time, place or manner restriction. The arbitrary nature of the decision—again based upon hypothetical concerns rather than upon facts—led the court to rule in favor of the prerogative to “probe” this issue in court. Now the case goes to the Arizona Supreme Court, and could then be appealed to the justices of the US Supreme Court.
This case, if it hits the justices’ docket, could test the current Court’s position on state power to determine what equals speech as well as the breadth of the First Amendment itself. It is fairly clear that there has been a significant change in the acceptability and desirability of tattoos in recent decades. Could the outcomes of cases dealing with the continuing conflicts between cities and tattoo artists and parlors could reflect the changing status of tattoos from a practice that is considered to be “bohemian” and cosmetic to a socially acceptable kind of individual expression, elevating it to a practice protected by the First Amendment?