Arizona Supreme Court rules tattooing is constitutionally protected free speech

[JURIST] The Arizona Supreme Court [official website] ruled [opinion, PDF] Friday that the married owners of a prospective tattoo parlor could bring suit against the City of Mesa for violating the couple's constitutionally protected rights to freedom of expression in denying their business a zoning permit. In order to open their tattoo parlor Ryan and Laetitia Coleman in 2008 applied for a Council Use Permit (CUP) under Mesa City Code [materials] § 11-6-3(B). After conflicting recommendations from Mesa's Planning and Zoning Board and a public comment hearing, the city council voted 6-1 to deny the permit. The Colemans filed a complaint in the state superior court alleging that Mesa's denial of the CUP violated their rights to free speech [Cornell LII backgrounder] under the federal and Arizona [materials] Constitutions. Using a rational basis [Cornell LII backgrounder] review the superior court granted the city's motion to dismiss, which the court of appeals then reversed under the heightened judicial standard triggered by freedom of expression protections. Sitting en banc the state Supreme Court declared tattooing to be a purely expressive activity fully protected by the First Amendment and affirmed the reversal:

Determining that tattooing is protected speech also implies that the business of tattooing is constitutionally protected ... [The Colemans] allege that the City's "planning and zoning code approval criteria, facially and as applied by the City Council," do not sufficiently guide or limit the City Council's discretion in rendering decisions ... The Colemans further allege that they have agreed to comply with all the conditions that city zoning staff identified in recommending they be issued a permit; that the Council has issued permits to other tattoo parlors; and that they will comply with all applicable laws ... If we accept these factual allegations as true, as we must for purposes of assessing a motion to dismiss on the pleadings, then the Colemans have stated a claim under the First Amendment.
Because the city was imposing unreviewable "unfettered discretion" rather than a generally applicable law, the court was "not persuaded by Mesa's characterization of the denial of a CUP to the Colemans as merely the application of a general law that incidentally affects speech-related activities." The court further found that the Colemans also had sufficiently stated claims for violations of both equal protection and due process, but did reverse the court of appeals declaration that strict scrutiny [Cornell LII backgrouder] applied to those claims.

Last month the Arizona Supreme Court ruled [JURIST report] that a state law requiring all public officials to be proficient in English is constitutional, holding that the English language law advanced the legitimate state interest of ensuring that public officials could perform their basic duties and communicate with constituents who only speak English. The court based its ruling on a provision of the Arizona constitution that codifies English as the official language of the state.

 

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