Posted by: Patricia Salkin | April 26, 2016

11th Circuit Court of Appeals Holds Tattooing is Artistic Expression Protected by the First Amendment

The City of Key West barred Buehrle from opening a tattoo parlor in the City’s designated historic district because of an ordinance that limited the number of tattoo parlors, permitting only two tattoo businesses as lawful non-conforming uses. It allowed these as part of the settlement of a prior lawsuit challenging the constitutionality of the ban. The City maintained that given its history, tattoo parlors were inconsistent with the historic character. It also feared that rash tourists would obtain regrettable tattoos, leading to negative association with Key West. Thus, it argued, permitting more tattoo parlors would adversely affect tourism.

Buehrle contended that the act of tattooing was entitled to First Amendment protection and that the ordinance was an unconstitutional restriction on his freedom of expression. The federal district court granted summary judgment for the City, and while agreeing with Buehrle that tattooing constitutes artistic expression protected by the First Amendment it nevertheless found the ordinance to be a reasonable time, place, and manner restriction.

The Eleventh Circuit Court of Appeals reversed and remanded, holding that as a matter of first impression, act of tattooing is artistic express protected by First Amendment; and that the city failed to meet its burden of demonstrating that ban served its alleged significant governmental interest of protecting historic district from deterioration.

While noting that the Court had never addressed whether tattooing was protected speech, it pointed to the Ninth Circuit decision in Anderson v. City of Hermosa Beach, where it held that tattooing was protected speech and that Hermosa Beach could not ban tattoo establishments from operating in the city. 621 F.3d 1051, 1055 (9th Cir.2010). The court joined the Ninth Circuit in holding that the First Amendment protected the act of tattooing because the court found tattooing to be virtually indistinguishable from other protected forms of artistic expression, noting that “A form of speech does not lose First Amendment protection based on the kind of surface it is applied to.”

With respect to the City’s ban, the court noted that a municipality may regulate protected artistic expression only if the regulation is narrowly tailored to serve a significant governmental interest. The City argued that the ordinance’s purpose was to prevent the deterioration of the historic district. Specifically, the fear that allowing additional tattoo establishments to operate in the historic district would adversely impact the “character and fabric” of the district and thus the tourism. The Court observed that the City must demonstrate that it had a reasonable basis for believing that its regulation would further these legitimate interests. A municipality cannot “get away with shoddy data or reasoning. It “must rely on at least some pre-enactment evidence” that the regulation would serve its asserted interests. Such evidence can include anything “reasonably believed to be relevant—including a municipality’s own findings, evidence gathered by other localities, or evidence described in a judicial opinion.”

The court found that the City had failed to meet its burden. The only support for the City’s claim that the ordinance served significant governmental interests consists of statements by the City’s Director of Planning, in his deposition and an affidavit submitted in support of the City’s motion for summary judgment, asserting that Key West historically prohibited tattoo establishments from operating in the historic district; allowing tattoo establishments to operate there would impact the district’s “character and fabric,” which “could impact tourism”; and tourists might negatively associate Key West with tattoos that they had obtained there but come to regret.

However, the Court noted that these reasons were given in the context of Buehrle’s lawsuit, well after the enactment of the ordinance. They therefore could not serve as pre-enactment evidence that the ordinance served a significant governmental interest. Further, the court still found these statements inadequate because they were unsubstantiated. Significantly, the mere fact that Key West successfully prohibited tattoo establishments in the historic district for approximately forty years did not support the conclusion that allowing more tattoo establishments would cause the district’s historical value to deteriorate and impact tourism. Even though the City conceded the absence of any ill effect as a result of the two tattoo establishments it currently allows to operate in the historic district, t failed 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. Particularly, there was a lack of evidentiary support for the City’s assertions concerning tattooing’s purported effect on tourism. The City pointed to no study indicating that the operation of tattoo establishments in the historic district would impact the tourism industry. The City conducted no investigation and made no findings. It relied upon no expert testimony, findings made by other municipalities, or evidence described in judicial decisions. The closest the City came to presenting evidence on the impact on tourism was a passing reference to a few lines of a Jimmy Buffett song.

The government bears the burden of showing that the articulated concern has more than merely speculative factual grounds. The City failed to satisfy its burden that it had a reasonable basis for believing that its ordinance would serve the significant governmental interests it propounds.

Buehrle v City of Key West., 813 F3d 973 (11th Cir. CA (FL) 12/29/15)

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