Court Says Tattooing Is Protected Speech, Mocks City For Misrepresenting “Margaritaville” Lyrics

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The city of Key West, FL, has an ordinance restricting tattoo parlors in its popular Historic District, meaning anyone who wants to open a tattoo shop on the island has to do so in a designated commercial zone. But a federal appeals court has ruled that the city’s rules are too restrictive of tattoo artists’ right to free expression. It also chided Key West for not understanding the lyrics to a Jimmy Buffett song.

There are already two tattoo parlors in the Key West Historic District, but only because of an earlier settlement involving a legal challenge to the city’s regulations.

So when a man from Virginia attempted to get a business license from the city for the space he’d just leased in the famed part of Florida tourist destination, his request was denied.

He sued — eventually ending up in federal court — but the judge granted summary judgment to the city, saying that the ordinance is content-neutral and is a “reasonable time, place, and manner restriction” of free speech.

And so the man petitioned the Eleventh Circuit Court of Appeals, claiming the city rule is unconstitutional.

Whether you’re a fan of tattoos or not, it’s generally accepted that tattoos themselves are protected as free expression. But what about the actual process of making that tattoo?

In defending its ordinance to the appeals court, Key West cited various legal precedents where courts had ruled that having a tattoo merits a higher degree of First Amendment consideration than merely tattooing someone else.

Per one court’s opinion, providing someone with a tattoo “does not rise to the level of displaying the actual image conveyed by the tattoo, as the tattoo itself is clearly more communicative, and would be regarded as such by the average observer, than the process of engrafting the tattoo on the recipient.”

“The very nature of the tattoo artist is to custom-tailor a different or unique message for each customer to wear on the skin,” opined another court, which found that the act of tattooing is “one step removed from actual expressive conduct.”

But in its opinion [PDF], the Eleventh Circuit says that these other courts are taking too limited a view of what constitutes expressive conduct.

“These decisions treat the First Amendment’s protection as a mantle, worn by one party to the exclusion of another and passed between them depending on the artistic technique employed, the canvas used, and each party’s degree of creative or expressive input,” reads the opinion. “Protected artistic expression frequently encompasses a sequence of acts by different parties, often in relation to the same piece of work. The First Amendment protects the artist who paints a piece just as surely as it protects the gallery owner who displays it, the buyer who purchases it, and the people who view it.”

Thus, according to the court, regulating the way in which a piece of art is created “curtails expression as effectively as a regulation limiting its display.”

If such a law were constitutional, the court holds that the government could make an end-run around displays of creative work they find disagreeable.

“[I]t can simply proceed upstream and dam the source,” reads the opinion, which concludes that “the right to display a tattoo loses meaning if the government can freely restrict the right to obtain a tattoo in the first place.” [note: italics in original]

In a footnote, the court also calls out the city for misrepresenting the lyrics to the song “Margaritaville” by famous Key West resident Jimmy Buffett.

The city made reference to the song twice in its arguments before the court, citing the lyrics
“Don’t know the reason,/Stayed here all season/ With nothing to show but this brand new tattoo” in an effort to support its claim that drunk Key West tourists who visit the historic district might end up with tattoos they regret.

But the court notes that the next line in song, describing the tattoo as a “a real beauty/A Mexican cutie,” indicates that the narrator of the tune is “seemingly far from suffering embarrassment over his tattoo.”

With regard to whether or not the city’s ordinance is an allowed restriction on free speech, the court notes that any such regulation must meet three conditions:
• 1: It is content-neutral, meaning the ordinance must be justified without reference to the content of the speech being regulated;
• 2: It is narrowly tailored to serve a significant governmental interest;
• 3: It leaves open ample alternative channels for communication of the information.

With regard to the second prong of that trident, the city argued that the ordinance is required because additional tattoo parlors in the Historic District would adversely impact the “character and fabric” of the area, which the appeals court says is indeed a substantial government interest.

However, the court asked the city to provide evidence that barring new tattoo artists from the district would further this goal. The city had to show that the reason for the ordinance was because of “secondary effects,” and not just because Key West didn’t want more tattoo parlors.

In other words, if a city is going to have an ordinance that limits concert venues, it would have to show that something like loud noise, increased traffic, increases in violent crime, etc., were likely; not just that the city didn’t want another concert hall.

To that end, Key West failed.

The city’s statement of purpose for the ordinance claims that putting a limit on tattoo parlors will prevent “the potential deterioration of a preserved historic district; an increase in the incidence of disease; and land use incompatibilities,” but the court says that the city provided nothing to bolster these generic assertions of what could happen.

Key West argued that tattoo parlors might harm tourism, but the court noted that the city “pointed to no study… conducted no investigation and made no findings… relied upon no expert testimony, findings made by other municipalities, or evidence described in judicial decisions… failed to muster even anecdotal evidence supporting its claims.”

Before the settlement that ultimately allowed for the two current parlors to come into being in the Historic District, Key West had banned tattooing in the area for four decades. The fact that nothing of interest has happened as a result in the years since that all-out ban was lifted works against the city’s claims, according to the court.

“The City concedes the absence of any ill effect as a result of the two tattoo establishments it currently allows to operate in the historic district,” reads the opinion. “And it fails to explain why allowing additional tattoo establishments to operate there would sour the district’s historical flavor, especially since the first two apparently have not done so.”

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