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Federal Court Rules Tattooing a Constitutional Right Under the First Amendment

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

Public DomainPublic DomainA 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.

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  • Tundra, well-chilled.||

    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 fuck? I was there last year and I think a tattoo parlor is the least of their problems.

    Keeping drunk idiots from getting bad tattoos is not a proper role of government. Besides, think of all the jobs that will be created in the tattoo removal business in a few years.

  • Mickey Rat||

    Would not a tattoo parlor tend to raise Key West's character and fabric anyway?

  • Quixote||

    Some tattoos are okay, but legislators should quickly enact laws criminalizing ones that are overly offensive or accusatory, like certain inappropriately deadpan "parodies" that we have been working to suppress in New York. See the documentation of America's leading criminal "satire" case at:

    http://raphaelgolbtrial.wordpress.com/

  • Plàya Manhattan.||

    How was this even in court? Case law is already established on the matter.

    By a high school classmate of mine, in fact.

    He won, and the tattoo shop opened.

  • Swiss Servator||

    Now it is the 11th and the 9th...

  • Just say Nikki||

    That's only law for other people in the 9th circuit. The 11th circuit was not bound by that precedent and could in theory have ruled differently.

  • ||

    Nicole S. Preston, Esquire

  • Fist of Etiquette||

    Body art is vulgar and the Constitution isn't a suicide pact. Tattoos are akin to yelling fire in a crowded theater and then inking some random Chinese characters on your shoulder and claiming it says something about yelling fire in a crowded theater.

  • Swiss Servator||

    "That doesn't say 'Fire"...it says 'Drunken Harlot' or something close that!"

  • commodious spittoon||

    "Try This Tasty Dish!"

  • Hamster of Doom||

  • commodious spittoon||

    Serves her right, appropriating culture and all.

    Hm... I might appropriate some culture for lunch.

  • Tundra, well-chilled.||

    Holy shit. There is a link at the end of that article. Follow it to see some spectacularly bad tats.

  • AlmightyJB||

    How to fail at life.

    Step 1. Tatoo your face

  • Sexbot||

    mmmm......chicken pho......

    /Homer

  • commodious spittoon||

    According to one source I didn't bother following up, "pho" is actually pronounced "fuh," which helps explain why Pho King is such a popular name for Vietnamese restaurants...

  • R C Dean||

    Why would anyone care about a file in a clowded theatre?

  • Swiss Servator||

    Lacist!

  • ||

    Well, if the theater is clouded then yelling 'fire!' might be appropriate.

  • ImanAzol||

    I'm wondering when we can substitute "Firearm" for "tattoo."

  • R C Dean||

    Right result, wrong reason.

    Key West shouldn't be able to ban any business from opening by claiming it "would mar Key West's "character and fabric" and thereby "impact tourism."

    The 1A is becoming a dumping ground for all attempts to restrain the government. When a principle is overstretched, the backlash can erode the core.

  • Lee G||

    Yeah, but if they went that route it would invalidate any number of local regulations that have been on the books for decades. The Supreme Court is typically chickenshit when it comes to that type of action.

    Besides the fact that they couldn't get a majority to agree on it just on principle.

  • ||

    yea this was really pathetic. This seems to be a zoning issue not a 1A issue. I don't think they wanted to open up the local ordinance can of worms.

  • John Thacker||

    Yes, but unfortunately commercial regulations tend to come in for the "rational basis" test. Nobody but the Institute for Justice wins "rational basis" lawsuits.

  • Mint Berry Crunch||

    Tattoos are way uglier than breast implants. Both should be legal though.

  • Agile Cyborg||

    Hanging from from gigantic hooks embedded in your starfish cheeks is way uglier than those two even blended. People who fuck with 'ugly' shit using motherfucking governing power are so fucking ugly my eyeballs literally shit hate on my brain.

  • WTF||

    No way am I clicking on that link.

  • Plàya Manhattan.||

    There's something ugly in that picture, that's for sure.

  • Lee G||

    The city also maintained that it had a legitimate interest in preventing drunken tourists from getting marked for life.

    Government, saving us from ourselves. What would we do without government?

  • sarcasmic||

    Live happy, productive lives.

  • SugarFree||

    Not have our faces burned off by a flash bang?

  • Hugh Akston||

    'Government' is just another word for the babies we choose to mangle together.

  • Lee G||

    Those babies are the indirect victims of those who choose to smoke marijuana

  • Agile Cyborg||

    I dream of plunging my entire fucking body into the collective asshole of the dungeon mites that dreamed up this reprehensible garbage and then projectile vomiting acid tornadoes and laser crayons onto their revolting anal walls and when I am fucking done with this I will crawl out, put sunglasses on, and probably tattoo a fucking baby right in front of this shit herd.

    Evolution sucks earth asshole for what it keeps doing to us with these malevolent governing turdballs.

  • ||

    Key West seems to be an odd mixture of old school liberals, libertines, and fascists with a sprinkling of hard core puritans. I love the place, but more than a few people there need an ass whippin'.

    Also, I just found this: http://www.theonion.com/articl.....ted--52114

    "The former pontiff, terrified by lamplight, retreats into the Tomb of Julii, where officials say he has made a small nest."

    I was wondering what happened to that guy. Funny how a closeted Nazi looks good compared to what they have now.

  • Eric||

    The current guy is only bad if you cannot separate politics from every other thing in life. I'm fine with a populist socialist Pope. Not so much if he wanted to be my president or congressman.

  • Lee G||

  • PapayaSF||

    Tattoos are a stupid trend. People who get them are fools.

  • Unreconstructed (Sans Flag)||

    A (female) friend posted on Facebook the best rebuttal of tattoos I've seen to date: "Why don't I get a tattoo? The same reason you don't put bumper stickers on a Ferrari."

    Funnier for me since she put that up shortly after my ex got a tattoo.

  • PapayaSF||

    You can at least peal a bumper sticker off a Ferrari.

  • Lost Sheep to Shepherd||

    Sheltered by the First Amendment? Maybe, but does a company have to hire idiots with neck tats? Is that the new tattooed face of discrimination?

    Companies (and the government) are allowed to discriminate against potential employees based on patterns of poor decision making, like bad credit or criminal convictions. Neck/face/hand tats fall into this category. I would hate to see employers faced with civil rights suits because they chose not to hire a guy with a tear tat below his eye.

  • woodNfish||

    Ugly tattoos to make pretty girls ugly.

  • woodNfish||

    This is actually pretty funny since the original conchs were smugglers and wanted as little government interference as possible. And since Key West features naked drunken parades and public sex every year at Fantasy Fest, I would think a tattoo parlor is probably a step up for them.

  • JSpey||

    "The right to display a t̶a̶t̶t̶o̶o̶ gun loses meaning if the government can freely restrict the right to obtain a t̶a̶t̶t̶o̶o̶ gun in the first place."

  • Damien||

    This is an Onion article, right?

  • para_dimz||

    " "The right to display a tattoo loses meaning if the government can freely restrict the right to obtain a tattoo in the first place."
    I agree. IOW to restrain or restrict a right even with cause is illegal. Prosecution for the exercise of a right may only be pursued if the rights of another are violated and not because government has their own reasons.
    Will this be the logic that eventually decides taxes on ammunition or restrictions on the quantity of purchases of guns and ammo?
    Keep this in mind when the time comes.

  • Provocateur||

    Defense arguments began "But it's a real beauty..."

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