Tattoos, Free Speech, and the Constitution

As Scott Shackford noted in today's P.M. links, the Arizona Supreme Court on Friday issued its decision in the case of Coleman v. City of Mesa, holding that the process of tattooing is protected under the First Amendment to the U.S. Constitution. This is the second major legal victory for the tattoo trade in recent years. As I noted in Reason's January 2011 issue, the United States Court of Appeals for the 9th Circuit ruled in the 2010 case Anderson v. City of Hermosa Beach that "the tattoo itself, the process of tattooing, and the business of tattooing are forms of pure expression fully protected by the First Amendment." In its ruling on Friday, the Arizona Supreme Court took its cues directly from the 9th Circuit, writing:

We conclude that the approach adopted in Anderson is most consistent with First Amendment case law and the free speech protections under Arizona's Constitution.  Anderson starts with the proposition that a tattoo itself is pure speech. This seems incontrovertible.  "[T]he Constitution looks beyond written or spoken words as mediums of expression," and the Supreme Court has recognized that the First Amendment protects a range of expressive activity including parades, music, paintings, and topless dancing. [Citations omitted.]

Anderson and Coleman each centered on the use of local regulations to harrass or even eliminate tattoo parlors from the respective municipalities. Since a majority of the judges in each case found tattooing to fall under the protection of the First Amendment, the government regulations in question were therefore subjected to heightened judicial scrutiny. Had either court found that tattoos were not a protected form of speech, the anti-tattoo regulations would have almost certainly survived, since the courts typically defer to the wishes of lawmakers when it comes to judging the fitness of economic regulations. So while these tattoo cases do represent great free speech victories, they also underscore the fact that "mere" economic liberty, such as the right to own and operate a small business free from arbitrary and unnecessary government interference, still receives second-class treatment in court.