We had, last week, another reminder of the extraordinary reach of the First Amendment right to free speech. Arizona’s Supreme Court has held that tattooing is a “constitutionally protected free speech”. It appears that this is the first decision by a State Supreme Court giving such recognition to what the court described as “tattoo artists”.
The ruling stemmed from a dispute between tattoo artists Ryan and Laetitia Coleman and the Phoenix valley city of Mesa, which denied the pair a business permit three years ago to set up shop in a local strip mall. The Colemans originally applied to Mesa in July 2008 for a business permit, and city zoning staff recommended it be issued to them the following February. However, after a public hearing, the Planning and Zoning Board voted to recommend the council deny the permit, arguing the shop was “not appropriate for the location or in the best interest of the neighborhood” The Council held a public meeting in March 2009 at which it received comments from several speakers supporting and opposing the tattoo parlor. Ultimately, the Council voted 6-1 to deny the permit.
The Colemans filed a claim alleging violations to their rights to free speech, due process and equal protection under both the U.S. and state constitutions. The suit was dismissed by the Maricopa County Superior Court and the Colemans appealed. Their appeal was upheld by the State Court of Appeals (CA1 11/3/11 [pdf]). Citing Anderson v. City of Hermosa Beach, (621 F.3d 1051, 1060, 9th Cir. 2010 [pdf]), the court held that “obtaining a tattoo,applying a tattoo, and engaging in the business of tattooing” are “pure speech entitled to the highest level of protection” by the First Amendment.
The City appealed to the State Supreme Court which dismissed the appeal, but substituted its opinion for that of the Court of Appeals. Its judgment was handed down on 7 September 2012 (CV-11-0351-PR [pdf]).
The ruling does not mean that Mesa must allow the Colemans to open their tattoo parlour, only that the court erred in dismissing their suit. It noted that cities had the right to regulate business location through zoning ordinances and that the “factual dispute” between the parties would have to be determined at trial.
Bales VCJ, gave the judgment of the Supreme Court sitting in banc. He defined tattooing as
“mark[ing]the skin with any indelible design, letter, scroll, figure, symbol or any other mark that is placed by the aid of needles or other instruments upon or under the skin with any substance that will leave color under the skin and that cannot be removed,repaired or reconstructed without a surgical procedure” .
The issue was whether tattooing is “purely expressive activity” or just “conduct with an expressive component” or simply. If the former, then it is entitled to full First Amendment rotection” and can be regulated only through reasonable time, place, and manner restrictions. If the latter then the regulation need only be rationally related to a legitimate governmental interest.
The Court pointed out that a range of views had been expressed in the case law. The Court in Anderson held that the tattooing was “pure speech” but several other courts, however, have concluded that tattooing is not protected by the First Amendment because it is not itself expressive conduct. See, e.g, Hold Fast Tattoo, LLC v. City of North Chicago, 580 F. Supp. 2d 656, 660, N.D. Ill.2008) (finding that “act of tattooing is one step removed from actual expressive conduct”) .
The Court noted that it was incontrovertible that a tattoo itself was “pure speech”.
“[T]he Constitution looks beyond written or spoken words as mediums of expression,” Hurley, 515 U.S. at 569, and the Supreme Court has recognized that the First Amendment protects a range of expressive activity including parades, music, paintings, and topless dancing” (See id.; Anderson, 621 F.3d at 1060).
The Court said
Tattoos, as the Ninth Circuit noted in Anderson, are generally composed of words, realistic or abstract symbols, or some combination of these items. 621 F.3d at 1060. They can express a broad range of messages, and they may be purely decorative or serve religious, political, or social purposes:
The principal difference between a tattoo and, for example, a pen-and-ink drawing, is that a tattoo is engrafted onto a person’s skin rather than drawn on paper. This distinction has no significance in terms of the constitutional protection afforded the tattoo; a form of speech does not lose First Amendment protection based on the kind of surface it is applied to. 
The process of tattooing is also an expressive activity
“the Supreme Court case law has not distinguished “between the process of creating a form of pure speech (such as writing or painting) and the product of these processes (the essay or the artwork)” 
“the fact that a tattoo artist may use a standard design or message, such as iconic images of the Virgen de Guadalupe or the words “Don’t tread on me” beside a coiled rattlesnake, does not make the resulting tattoo any less expressive.” .
Determining that tattooing is protected speech also implies that the business of tattooing is constitutionally protected.
This means that tattooing is subject to general laws and that it may be subject to reasonable time, place, and manner regulations. The court had to apply “intermediate scrutiny” to in evaluating whether the City had reasonable restrictions.