By Gary Nelson, Arizona Republic
The Arizona Supreme Court ruled Friday that tattooing is a form of free speech with full protection under the U.S. and state constitutions — the first such decision by any state high court in the country.
The unanimous court, however, stopped short of saying Mesa was out of bounds when its City Council denied permission for a tattoo parlor to open in March 2009.
That must now be decided in Maricopa County Superior Court, where a judge initially rejected a lawsuit filed by tattoo artists Ryan and Laetitia Coleman.
The trial would pit tattoo artists’ First Amendment rights against a city’s authority to regulate even those businesses that engage in constitutionally protected speech.
“This is a big win for the little guys,” said Clint Bolick, a Goldwater Institute lawyer representing the Colemans. “This is an important ruling in favor of entrepreneurs who wanted to establish a business in Mesa and found the ground constantly shifting beneath their feet.”
Bolick said the ruling set a national precedent for an issue on which courts at various levels have offered widely diverging opinions.
“This is the first state supreme court in the country to rule that tattooing is a form of protected speech,” Bolick said. “That’s very significant. … We now know that in Arizona tattooing is a protected form of free speech and that’s a victory for freedom.”
Mesa City Attorney Debbie Spinner said the city was disappointed in the ruling.
But she added that the ruling at least clarified the grounds on which a ruling can be reached in a lower court.
The Colemans, who live in Nice, France, had sought permission to open Angel Tattoo in a strip mall in southwest Mesa’s Dobson Ranch, one of the first large master-planned communities in the Valley.
They already had rented space and agreed to several restrictions under a so-called “good neighbor policy.”
But at the council’s March 30, 2009, meeting, people favoring the tattoo parlor were countered by several neighborhood residents who feared the shop would attract unsavory elements.
The council voted 6-1 to deny a license, asserting it had discretion to do so under Mesa’s council use permit process. That part of Mesa’s code requires certain kinds of businesses, including tattoo parlors, to receive special council permission even if they meet all other zoning regulations.
Only Mayor Scott Smith voted in favor, saying opponents had not proved their case and that the marketplace would decide whether the parlor belonged there.
The Colemans filed a civil-rights suit against Mesa, seeking to recover their costs and other unspecified amounts. Mesa, the Colemans said, had violated their rights under the First and 14th amendments to the U.S. Constitution.
Maricopa County Superior Court Judge Larry Grant tossed the lawsuit and said the council vote was “a reasonable and rational regulation of land use.”
The Colemans won the next round, however. The Arizona Court of Appeals ruled in November that “obtaining a tattoo, applying a tattoo and engaging in the business of tattooing are exercises of free speech entitled to protection as a fundamental right under the Arizona Constitution and the United States Constitution.”
Since the Colemans had met Mesa’s legal requirements, the appeals court said the city was not justified in saying no.
Mesa then filed an appeal of its own. Lawyer Scott Holcomb, representing the city during oral arguments in March, said the appeals court had overreached.
“Not all regulation of speech gives rise to First Amendment issues,” Holcomb told the Supreme Court. “All that Mesa is doing is determining, as part of its zoning and land-use regulations, the location of a business.”
Friday’s decision “vacated” the appeals court ruling, which means it can’t be used as legal precedent. Some of the grounds for doing so were technical.
But the gist of the appeals ruling stands: “Tattooing is protected speech,” the high court ruled. That means Mesa must prove the council had good reason for denying the parlor permit.
“This is as close to an absolute victory as the Colemans could have gotten from the Arizona Supreme Court,” Bolick said.
Legal rules, he said, prevented an absolute Supreme Court ruling in the Colemans’ favor. “All they could do was to reinstate the case. In the process the court established what are what the legal rules are going forward, and under those legal rules it’s hard to see the city of Mesa prevailing.”
Spinner, however, was optimistic on that point because the council rested its case on strong neighborhood opposition.
“We hope the court is going to agree that the council’s decision was reasonable under the circumstances,” Spinner said.
The council will have to decide whether to further defend the case or whether to seek a settlement.
Bolick hopes Mesa chooses the second option.
“I hope that no further taxpayer money is spent defending the indefensible,” he said.
