Federal Court Rules Tattooing a Constitutional Right Under the First Amendment

"The act of tattooing is sheltered by the First Amendment."


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A tattoo artist named Brad Buehrle just won a significant constitutional victory against overreaching government regulation. In a decision issued last week in the case of Buehrle v. City of Key West, the U.S. Court of Appeals for the 11th Circuit struck down that Florida city's ban on tattooing, opening the way for Buehrle to open a tattoo shop in the city's historic district.

City officials opposed Buehrle's fledgling enterprise on the grounds that his skin and ink business would mar Key West's "character and fabric" and thereby "impact tourism." The city also maintained that it had a legitimate interest in preventing drunken tourists from getting marked for life.

The 11th Circuit thought otherwise. "The act of tattooing is sheltered by the First Amendment," the court observed. "The right to display a tattoo loses meaning if the government can freely restrict the right to obtain a tattoo in the first place."   

The 11th Circuit was particularly dismissive of the city's flimsy attempt to frame its ban as a legitimate exercise of government power:

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. It failed to muster even anecdotal evidence supporting its claims. 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. And we are unsure whether even that reference fully supports its position.

This is not the first time a government entity has received a judicial benchslap over an illegitimate tattoo ban, and it surely won't be the last. As the U.S. Court of Appeals for the 9th Circuit correctly observed in 2010, "the tattoo itself, the process of tattooing, and the business of tattooing are forms of pure expression fully protected by the First Amendment."

Related: The Rise and Fall of the New York City Tattoo Ban: How government regulators tried to kill the skin & ink trade.