I can hear them at Mesa City Hall right now: Darn that pesky First Amendment, they are probably saying. That’s because Friday’s Arizona Supreme Court decision may well mean there could be a tattoo shop opening some place where the City Council doesn’t want it to. In this case, near Dobson Ranch.
The state’s highest court gave Ryan and Laetitia Coleman the opportunity to show a trial court judge evidence that their plans to open such a shop near Dobson Ranch is a normal business that will cause no harm — in zoning parlance, the word is “incompatible” — to the surrounding neighborhood.
When the Colemans first went to court a couple of years ago, they sought to prove the City Council denied their First Amendment rights of free expression, that tattooing was a protected form of free speech just as watercolor painting, sculpture or a book are.
The trial court judge didn’t allow that argument to be made and simply dismissed the case based on the city of Mesa’s motion without deciding the facts, the justices ruled. The Colemans appealed and won a reversal of that judge’s ruling, courtesy of the Arizona Court of Appeals.
And so following the state Supreme Court’s decision Friday, the case will return to trial where the couple will have the opportunity to show that they believe the city ran them out based on incompatibility and inappropriateness rather than to incorporate their First Amendment rights into zoning regulation.
They are getting to do this because, as preposterous as that seems to some, the Arizona justices agreed with a recent ruling by the 9th U.S. Circuit Court of Appeals declaring tattooing as protected speech to be correct.
The right to express oneself freely has come a long way since it was first applied only to the printed word. It has since applied to art, radio, television and the Internet, based on a long line of court decisions furthering the idea behind free expression as being what the nation’s founders wished to protect, not the precise medium. That’s why the terms “freedom of speech” and “freedom of the press” from the 18th century are still valid in the 21st in a variety of media, including blogs.
As I have argued a few times in this space, tattooing has likewise traveled quite a distance, from when your grandfather got one while in the Navy from an entrance-in-the-rear-of-the-building place in the seedy part of some faraway port. You don’t have to like tattoos, much less wear one, to realize that they are legitimate businesses where today it’s not unexpected to see a grandmother getting one.
And each tattoo has some sort of message the wearer wants to convey to someone, even if — based on where on the body it is located — that someone is only the wearer’s closest associates.
Fear is no way to properly base zoning in a city. It’s difficult to see what motivated the Mesa City Council to turn down this otherwise unobtrusive request for a city permit — one that city staff and police did not object to, according to reporting by the Tribune at the time — other than a nose count of the number of agitated and voting neighbors who opposed it.
Government should be responsive to its constituents, of course. In Friday’s ruling the justices said, “We acknowledge that municipalities have legitimate interests in controlling the location of businesses through zoning ordinances.”
The justices went on: “Instead, the issue is whether the pleading states a sufficient claim to warrant allowing the Colemans to attempt to prove their case. The complaint sufficiently sets forth claims for relief for alleged violations of the Colemans’ rights to free speech, equal protection and due process.”
So what’s important about this matter to you and me? Only that just because a bunch of people — not only your fellow residents but your elected officials — believe that what you do is objectionable and you only have you on your side, the Bill of Rights gives you the right to speak out and to your day in court to assert that right to speak.
And the people who decide on where and how you speak — and our legal system gives government the reasonable authority to regulate speech in a proper “time, place and manner” — have to make those decisions not based on how many people don’t like it, but on whether those who wish to speak are not being silenced or intimidated.
Even if that speech is at the end of a needle rather than the end of a pen.
Read Mark J. Scarp’s opinions here on Sundays. Watch his video commentaries at eastvalleytribune.com. Reach him at email@example.com.