Arizona Supreme Court Holds Tattooing Is Speech Protected By The First Amendment

Ryan and Laetitia Coleman planned to open a tattoo parlor in Mesa and applied for a Council Use Permit (“CUP”) as required by a city ordinance.  The City Council may deny a CUP if the business is not appropriate for the proposed location or is not in the best interest of the neighborhood.  Mesa characterized the process as giving the Council has unfettered, non-reviewable discretion to grant or deny a CUP.  After a public hearing, the Council voted 6-1 to deny the permit.

The Colemans brought suit alleging violations of their rights to free speech, due process, and equal protection under the United States and Arizona Constitutions.  The superior court granted Mesa’s motion to dismiss, noting that the denial was a reasonable and rational regulation of land use.  The Court of Appeals reversed, holding that tattooing is “pure speech” entitled to the highest protection.  The Supreme Court granted Mesa’s petition for review.

In a unanimous decision, the Court upheld the reversal of the superior court’s dismissal but vacated the Court of Appeals opinion.  Reviewing conflicting case law from across the country, the Court adopted the position of the Ninth Circuit Court of Appeals and held that tattooing is pure speech protected by the First Amendment and Article 2, Section 6 of the Arizona Constitution.  Though Mesa may enact content-neutral regulations which reasonably restrict the time, place, and manner of tattooing activity, the Colemans’ complaint sufficiently alleged that the CUP denial was not a reasonable regulation.  The Court did not decide the question and instead remanded the case to the superior court to develop a factual record.

Regarding the equal protection and due process claims, the Court disagreed with the Court of Appeals that strict scrutiny should apply.  Noting that First Amendment claim was subject only to intermediate scrutiny, the related equal protection and due process claims are held to the same standard.  Holding that the Colemans’ complaint properly alleged violations of equal protection and due process, the Court remanded the claims to the superior court for consideration under the same standard as the First Amendment claims.

Justice Bales wrote the opinion for the unanimous Court.