Agenda - Planning Commission - 01/31/2013 - Special

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Zoning Bulletin October 25, 2012 I Volume 6 I Issue 20 See also: Hold Fast Tattoo, LLC v. City of North Chicago, 580 F. Sapp. 2d 656 (N.D. Ill. 2008) (finding that "act of tattooing is one step removed from actual expressive conduct"). See also: Yurkew v. Sinclair, 495 F. Supp. 1248 (D. Minn. 1980) (finding process of tattooing is not protected speech); State ex rel. Medi- cal Licensing Bd. of Indiana v. Brady, 492 N.E.2d 34 (Ind. Ct. App. 1986)) (same); State v. White, 348 S.C. 532, 560 S.E.2d 420 (2002) (same). See also: Mastrovincenzo v. City of New York, 435 F.3d 78 (2d Cir. 2006) (extending First Amendment protections to a particular tattoo artist's work if it has a predominantly expressive purpose, requiring a case -by -case inquiry to determine if tattooing is protected by the First Amendment). Case Note: In its decision, the court noted that courts in other jurisdictions are divided on the issue of whether tattooing should be characterized as purely expressive activity ("pure speech') or instead as conduct with an expressive component. If characterized as purely expressive activity, then tattooing is entitled to full First Amendment protection and can be regulated only through reasonable time, place, and manner restrictions. If however, tattooing is instead characterized as conduct with an expressive component, it is protected under the First Amendment only if it is "sufficiently imbued with elements of com- munication," that is, there is "[a]n intent to convey a particularized mes- sage" and "the likelihood [is] great that the message [will] be understood" by viewers. If tattooing is characterized as not "sufficiently imbued with ele- ments of communication," then the regulation need only be rationally related to a legitimate governmental interest. Here, the court concluded that the first of these approaches was "most consistent with First Amendment case law and the free speech protections under Arizona's Constitution "—given that tattoos "are generally composed of words, realistic or abstract symbols, or some combination of these items" and "can express a broad range of messages Case Note: In the lawsuit, the Colemans had also alleged that the City's denial of the CUP violated their due process and equal protection rights under the federal and Arizona Constitutions. The court held that the same level of scrutiny ap- plied to those claims as to the First Amendment claim. The court found that the Colemans' complaint sufficiently set forth claims for relief for alleged © 2012 Thomson Reuters 5