Limitation on Tattoo Parlors Unconstitutional, Federal Appeals Court Rules

Humberto Moreno via flickr

Humberto Moreno via flickr Creative Commons

The City of Key West, Florida, cannot ban tattoo parlors from opening in its historic district without running afoul of the First Amendment, a federal appeals court has ruled.

Brad Buehrle sought to open a parlor, but was rejected by city officials.

The city’s position was that it already had two tattoo parlors and was not allowing any more to preserve the district’s historic character.

After a lower court sided with the city, Buehrle appealed to the 11th U.S. Circuit Court of Appeals. On December 29, 2015, a three-judge panel of the 11th Circuit reversed in Buehrle v. City of Key West.

The panel first determined that tattooing is a form of artistic expression deserving of free-speech protection. The city argued that there was a difference between the process of creating a tattoo and the tattoo itself.

However, the panel rejected that argument, reasoning that the two were inextricably intertwined.

“Protected artistic expression frequently encompasses a sequence of acts by different parties,” the court wrote. “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.”

The appeals court then determined that the city failed to show that its prevention of any more tattoo parlors would further its interest in preserving the character and fabric of the city’s historic district.

City officials produced no study or other evidence that more tattoo parlors would negatively impact tourism.

Instead, the 11th Circuit said, the city officials’ justification amounted to mere speculation. “The First Amendment requires more,” the court wrote.

The 11th Circuit’s decision is sound. Tattoos obviously convey important messages. To many people, they are their personal art of life.

Even more importantly, the appeals court required city officials to produce actual evidence, rather than rely on a rote incantation that this type of artistic expression would cause harm.

David L. Hudson, Jr. is the Ombudsman for the Newseum Institute First Amendment Center. He is the author of Let The Students Speak!: A History of the Fight for Free Expression in American Schools (Beacon Press, 2011) and Teen Legal Rights. He teaches First Amendment classes at Vanderbilt Law School and the Nashville School of Law.

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