THIS OPINION HAS BEEN VACATED

“This appeal presents our first opportunity to consider the First Amendment rights of tattoo artists to ply their trade in Arizona.” So says the first sentence of this opinion. Kudos to Judge Timmer for an opening sentence that, if you’ve heard anything about this case, tells you immediately how it’s going to come out and and why. But she’s still Judge Timmer, so she lets the opinion take 31 pages to get from that first sentence to the last one.

Coleman wanted to open a tattoo parlor. Mesa refused to let him because his business wasn’t “appropriate” for the neighborhood he wanted to put it in, as it might attract a criminal element and reduce property values. Coleman sued, citing the Constitution and §1983. The trial court dismissed for failure to state a claim, though its order demonstrates confusion.

The Court of Appeals decides that tattooing is a fundamental, free-speech right. It concedes that “during the relatively brief life of tattoo jurisprudence” most courts have held otherwise. That seems to be the attitude of this opinion  — that it’s a watershed in a critical but misunderstood area of “jurisprudence.” All it really does, though, is to follow last year’s Ninth Circuit Anderson opinion: having a tattoo is free speech therefore making a tattoo is free speech, because people wouldn’t make it if somebody didn’t want to buy it, or some such. That second step is of course the tricky one – this idea that a trade or manufacture utilized to express free speech is itself free speech if the purchaser can have some input into the result, by which logic barbering is a fundamental right – and so the opinion, like Anderson, devotes a great deal of attention to the first one and slides past the second with a shrug.

Since tattooing is free speech the issue must be given intermediate scrutiny (Mesa must narrowly tailor its restriction to serve a significant interest) and whatever it was the trial court did, it wasn’t that. So the court remands to let that happen, including letting evidence on the point be presented – after discussing the facts and allegations in such a way as to make it crystal clear to the trial court what result the Court of Appeals wants.

The court also finds that Coleman can present evidence to support equal-protection and due-process arguments. These, since tattooing is a fundamental right, require strict scrutiny. Few things survive that and fewer still that affect what a court describes in such warm and deferential terms. An early footnote even apologizes, in effect, to Coleman for using the tawdry phrase “tattoo parlor” – it only does so, you see, because that’s what that silly Mesa ordinance says – rather than his preferred term, “tattoo art studio.” (We don’t necessarily blame Mr. Coleman himself, who for all we know is a real artist and a modest fellow; pretension in the service of oddball or marginal causes is nowadays de rigeur, whether you’re the ACLU or, as here, the Goldwater Institute.) The opinion even goes out of its way to mention that Coleman had a tattoo parlor in Nice, France, which is presumably more impressive if you’ve never seen most of Nice. A beau mentir qui vient de loin.

(link to opinion)