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Mesa loses - again

November 4, 2014

Arizona Republic Editorial

For at least 43 years, personal adornment has been deemed constitutionally protected free speech. It goes back to when the U.S. Supreme Court concluded you could wear a black armband to school to protest the Vietnam War and the principal couldn’t stop you.

It is time to start viewing tattoos as black armbands. Really permanent armbands.
Mesa, which may be setting records for being on the losing end of court fights over constitutionally protected rights, violated the First Amendment rights of a couple who sought to open a tattoo parlor near Mesa’s Dobson Ranch, according to the Arizona Supreme Court.
The unanimous decision on Friday appears to be the first time any state Supreme Court has ruled on the constitutionality of tattoos.
In rendering its decision, the Arizona high court effectively told Mesa it cannot arbitrarily deny a tattoo parlor a license just because members of the City Council dislike tattoo parlors, which appears to have been the council’s rationale for refusing the license in March 2009.
On a 6-1 vote, the council refused to give tattoo artists Ryan and Laetitia Coleman a “council use permit,” an operating license based on subjective criteria such as whether the council felt the business was appropriate for the area.
Such “unfettered subjectivity” (as Goldwater Institute attorney Clint Bolick described it) became the foundation for the First Amendment challenge. By making the permitting process so headbangingly arbitrary, the Mesa council could offer the court no rational argument for the denial.
As the high court made clear, our Constitution doesn’t allow government to apply its laws capriciously.
The decision certainly does not mean tattoo parlors should be allowed to open anyplace they want. Mesa still retains a right to create zoning. It simply has to explain more coherently what its zoning criteria are.
As a rule, any judgment of the court that expands free speech is a positive development. Yes, even if that speech is expressed in a manner many find distasteful. Or foolish. Do those buff 20-somethings tatting up today have any idea how silly their ink-speech will look in a couple of decades? Just asking.
Mesa’s track record in high-profile constitutional battles is not impressive.
Less than a decade ago, the city lost a notorious eminent-domain case involving a brake-repair shop the council wanted to oust in favor of a new hardware store. At the time, the Bailey’s Brake Shop case constituted a huge win for personal-property rights.
Now, the city’s fight with the Colemans has developed into a landmark moment for the tattoo industry, which now can boast legal precedent defining its exotic product as one enjoying constitutional protections.
The Dobson Ranch area may not be an appropriate location for a tattoo parlor. But the Mesa council now must find a far better explanation why it should go elsewhere.



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