What began as a Mesa couple’s plans to open a tattoo business is now before the state’s highest court, which will hear arguments Tuesday over how much politics can influence the First Amendment right of freedom of speech.
Ryan and Laetitia Coleman and the city of Mesa so far have each won once before judges, first the city at trial and then the couple at a state appeals court. So if you’ve ever wondered whether a tattoo, like other forms of artistic expression, is as protected by the First Amendment as anything uttered at a public meeting, then the Arizona Supreme Court’s decision should mean something.
The justices will consider whether political terms such as “appropriateness” or “compatibility,” rather than quantifiable harm, can be used to justify turning down applications to open a business. And that’s why Mesa appealed this case to the Supreme Court: City officials are afraid that the courts could take away the voter-pleasing power to deny a use of private property just because people living nearby don’t like that use.
You may not plan to open a tattoo shop, but to anyone who plans to open a business that involves expression — from a shop that sells beaded leather goods to one that proffers paintings to, heck, one that publishes in print or on the Internet — what the city can use to justify turning you down should be of high interest.
In 2008, despite a favorable recommendation from city zoning officials, both Mesa’s Planning and Zoning Board and City Council rejected the Colemans’ application to open a tattoo shop in a strip mall on Dobson Ranch.
The protests of several upset and fearful neighbors won the day over the views of the staff and even of Mesa police, who according to reports published in the Tribune told the council they saw no evidence tattoo businesses pose any more of a public safety threat than other businesses in town.
But cops and city staff eligible to vote in Mesa don’t number very many. At the polls each election day are all sorts of neighbors, upset and fearful about any number of things and ready to exact electoral vengeance on incumbents whose decisions displease them.
The 6-1 council majority counted noses that day and decided that the First Amendment can be taken down a bit, all in the name of what’s “appropriate” for the neighborhood, and, of course, in getting re-elected.
Most free-speech cases are about speech many if not most of us don’t like. Tattoos displease many people, although these days most people you ask are probably ambivalent about them.
But conjecturing about the customers to whom tattooists cater as a means to decide whether to allow them to apply tattoos on those customers is like telling an art gallery that will display paintings you can’t stand to wealthy, petty and arrogant clients you really can’t stand that it should not be allowed to open up shop.
People who commit unlawful acts should be arrested and punished, but this is not an Orwellian world in which we predict criminal behavior and act on it before it occurs, even if it never does. Other tattoo businesses operate in Mesa in an environment that affects surrounding neighborhoods no more than does the typical convenience store.
And yet people still behave as those in Meredith Willson’s fictional River City, Iowa, did in “The Music Man,” where merely the suggestion of a pool table coming to the local billiards hall sent locals into apoplexy and into the waiting clutches of a confidence man. And because today enough folks live in their own River City, where the subject matter isn’t a pool table but tattoos, willing politicians are there to go along, even all the way to the state Supreme Court.
Local governments do have tools to regulate speech for good reasons. Courts have allowed localities what are called reasonable “time, place and manner” restrictions on expression. The Arizona Court of Appeals, which relied on similar recent rulings by other courts, ordered that cities must provide a legal rationale for denying applications instead of merely finding them to represent “incompatible” uses.
The prediction from this space: The justices will largely uphold the Court of Appeals ruling, but will provide local governments with more guidance on how to decide zoning cases reasonably without trampling on free-speech rights.
Let’s hope so. For the high court to reverse this decision would not simply be a blow to those wanting to open tattoo shops, which most of us could take or leave. It will give cities far too much latitude to restrict the sacred right of free speech just because some people simply don’t like the message. That’s something no one should just take or leave.
Read Mark J. Scarp’s opinions here on Sundays. Watch his video commentaries on eastvalleytribune.com. Reach him at mscarp1@cox.net.
SethCold posted at 7:27 am on Sun, Mar 25, 2012.
Boy, we are getting to the point that we are losing our rights to anything. We will have to write an essay to get anything. [sad]
MerryMouse posted at 9:43 am on Sun, Mar 25, 2012.
Makes one wonder what an “appropriate” business would be. It is a strip mall for heavens sake it's not like thy want to open the shop in their garage. Even the police couldn't see where there would be a problem with it After all if you dont want a tatoo they are not going to drag any one in kicking and screaming to give them one.
WakkoWarner posted at 10:20 am on Sun, Mar 25, 2012.
Why do they not mention that the shop owners started construction without a permit?? That right there is enough to deny them an operating permit.
Butters posted at 10:34 am on Sun, Mar 25, 2012.
District 4's coucilmember wasn't a member of the council at the time that the rest of the city council voted to force their warped opinions down the throat of the couple wanting to open the tattoo shop. At the time of the vote, the only one who voted in favor of the shop was the mayor. He gave a very good reason as to why he did and was fearful that legal action would be taken against the city if they refused to allow that shop to open. Dennis Kavanaugh, a practicing attorney and councilmember for the area where Dobson Ranch is located, apparently was asleep during his classes at law school that covered freedom of expression. Just like the expensive litigation brought against the city over the Bailey Brake Shop debacle, which Dennis Kananaugh was a part of, he has once again helped to bring another costly legal fight against the city.
Maybe Dennis Kavanaugh can explain why it was okay with the Dobson Ranch snobs to let a massage parlor open up at the same shopping center. The police department can tell you that have had many problems with this type of business, but have had no problems with tattoo shops. How nice that Dennis Kavanaugh, the elected Gestapo leader for the Dobson Ranch Nazi Party, knows more than I do about what's best for me. Dennis, when does Mesa police department's new thought police unit start up?
Rich posted at 6:17 pm on Mon, Mar 26, 2012.
Freedom of any kind of expression is never free. And people have to be willing to do it, fight for it and generally accept it from others they totally disagree with. When you disagree with someone, you can be part of the solution, when you need to gag them, that is the first indication that you are wrong. Freedom is never 'appropriate' if it has any value. 'Appropriate' we hear all the time, everywhere. The sad thing is that all progress is made by speaking, doing the 'inappropriate.'