Considering the issue for the first time, the Eleventh Circuit joined the Ninth in holding that the act of tattooing is sheltered by the First Amendment. In Buehrle v. City of Key West, an aspiring tattoo parlor owner brought suit after being denied a business license application as a result of the City’s zoning ordinance, which limited tattoo parlors in a single zone district and even then only as a conditional use. The City’s zoning prohibited tattoo parlors in the historic district altogether.

In invalidating the regulation, the court first declined to accept the City’s argument that while the tattoo itself is certainly protected—“a form of speech does not lose First Amendment protection based on the kind of surface it is applied to”—the mere act of tattooing does not merit the same protection. The court took a broader view, reasoning that “a regulation limiting the creation of art curtails expression as effectively as a regulation limiting its display.”

Moving on, the court then considered whether the City’s ordinance was constitutional, namely whether it (a) was justified without reference to content, (b) was narrowly tailored to serve a significant government interest and (c) left open ample alternative channels for communication. According to the court, the City failed to present any evidence to support its claim that the ordinance serves a significant governmental interest. Although the court agreed that preserving the historic character and fabric of the district and therefore the tourism the district attracts was certainly a significant government interest, the City failed to present any study, investigation results, expert testimony or other findings that would link tattoo parlors with historic preservation and tourism. Indeed, the court noted that “the closest the City came to presenting evidence on the impact on tourism was a passing reference to a few lines of a Jimmy Buffet song [Margaritaville]… and we are unsure whether even that reference fully supports its position.”

Buehrle v. City of Key West, 813 F.3d 973 (11th Cir. 2015)