Saturday, September 8, 2012
In an important free speech case yesterday, the Arizona Supreme Court held that tattooing is protected free speech under the First Amendment and Arizona's state constitution. The case is Coleman v. City of Mesa, No. CV-11-0351 (September 7, 2012).
Plaintiffs in the case sued the City after being denied a permit to open a tattoo parlor. The city's controlling ordinance effectively bans certain specified uses, including tattoo parlors, unless the city council grants a permit for the use. The Supreme Court, after finding tattooing to be constitutionally protected expression, held the city's permitting scheme vested unbridled discretion in city officials and failed the First Amendment's time, place and manner test. The Court reversed the trial court's dismissal for failure to state a claim and returned the case to that court for further proceedings.
The Arizona Court considered three approaches to the issue: (1) tattooing is purely expressive activity fully protected by the First Amendment; (2) tattooing is non-expressive activity not First Amendment protected; and (3) categorization on a case-by-case basis. Notably, the Court cited a student comment, Ryan J. Walsh, Comment, Painting on a Canvass of Skin: Tattooing and the First Amendment, 78 U. Chi. L. Rev. 1063 (2011), for the third approach.