Author: Chris Gant, Contributing Member, University of Cincinnati Law Review
It is not uncommon for laws to require an occupational license in order to work in a respective field. For example, jobs in medicine or law require passing examinations and certifications. Occupational licenses, however, become more controversial when they interfere with what may be a violation of First Amendment rights. Litigation has arisen in a few historic American cities where the cities have promulgated a license requirement for giving tours. These ordinances generally require the tour guide to pass a series of tests, be drug free, and have no recent felonies. [1]
The most recent of these lawsuits has recently come out of Charleston, South Carolina. The Plaintiffs are citizens wishing to be tour guides, but lack a license and are therefore subject to fines and possibly jail time for giving unlicensed tours. The complaint alleges that the licensing requirements violate the First Amendment because it bars speakers from telling stories and from talking for a living.[2] There is a split among the circuit courts regarding this issue. The Fifth Circuit has ruled that these licensing requirements do not violate the First Amendment because the ordinances are “content neutral” and therefore have no effect on what tour guides say. Conversely, the Circuit Court for the District of Columbia has ruled that the ordinances are a violation of the First Amendment. The D.C. Circuit Court gives a vastly more persuasive argument. The Fifth Circuit gives a half-hearted, incomplete, and ultimately unpersuasive opinion. As the D.C. Court explains, these ordinances cannot pass intermediate scrutiny, the District Court of South Carolina should rule in line with the D.C. Circuit Court.
The First Amendment and Intermediate Scrutiny
The First Amendment, with a few exceptions, prevents the government from restricting the freedom of speech of American citizens.[3] Laws that restrict speech but are content neutral are reviewed under intermediate scrutiny.[4] As the name implies, intermediate scrutiny is more rigorous than rational basis review, but less rigorous than strict scrutiny.
The Supreme Court applies a five-factor test when the government seeks to restrict content-neutral speech. This test inquires into whether the ordinance: (1) is within the constitutional power of the Government; (2) furthers an important or substantial governmental interest; (3) the governmental interest is unrelated to the suppression of free expression; (4) the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest; and (5) the regulation leaves open ample alternative channels for communication.[5] The failure for the government to satisfy any one of the five factors invalidates the regulation.[6]
Kagan v. City of New Orleans
Kagan v. City of New Orleans was a similar challenge to the New Orleans code that required a license for a person to charge for tours of “the city’s points of interest and/or historic buildings, parks, or sites, for the purpose of explaining, describing or generally relating the facts of importance thereto.”
The Fifth Circuit court found the ordinance to be content neutral because the requirements for a license “[have] no effect whatsoever on the content of what tour guides say,” thus the ordinance had no reference to content.[9] The court then applied an incomplete intermediate scrutiny test, stating that the ordinance satisfied the “requirement of narrow tailoring ‘so long as the … regulation promotes a substantial interest that would be achieved less effectively absent the regulation.’”[10] Therefore, because New Orleans, “effectively promoted the government interests, and without those protections for the city and its visitors, the government interest would be unserved.”[11]
Edwards v. District of Columbia
In Edwards v. District of Columbia, the D.C. Circuit Court of Appeals struck down a very similar statute. Under the D.C. ordinance, in order to guide or escort any person through the city for compensation, a guide must: 1) be at least eighteen years old; 2) be proficient in English; 3) not have committed certain felonies; 4) sign a sworn statement that the application is true; and 5) scored at least 70/100 on an examination. [12] The government’s asserted interest was to prevent unscrupulous business practices and “weed[] out guides too … unserious to be willing to study for a single exam.”[13]
The court stated that even if the regulations are content-neutral, they do not pass intermediate scrutiny.[14] In applying the appropriate five-prong test, the court found that prongs two and four are not satisfied.[15] In regards to the requirement that the regulation furthers an important government interest, the court explained that there must be a “direct causal link between the restriction imposed and the injury to be prevented.”[16] The government offered eleven injuries that the ordinance seeks to prevent,[17] however the court found that the government failed to demonstrate that these injuries were actually a problem for D.C.’s tourism industry.[18]
Further, in regards to prong number four, the court found that the regulation was under-inclusive and overbroad.[19] To meet the fourth prong, the regulation must be no greater than essential to further the government’s interest.[20] The court ruled that the regulation failed to meet this prong because there were already incentives in place for a tour guide to provide a quality tour.[21] Additionally, unlicensed tour guides could find ways around the regulation. For example, an unlicensed tour guide could stand in front of the White House and charge a fee for information, or could walk around with an audio recording.[22]
Charleston’s Licensing Requirements Violate the 1st Amendment
Americans sometimes need to sacrifice certain rights in order to balance legitimate government interests. This give and take approach is exemplified in the First Amendment tests by requiring the government to prove that it is protecting its legitimate interest in a narrowly tailored way. The licensing regulations are an example of government overreach. The regulations are a form of controlling who speaks in the respective city, and the government’s proposed interest does not justify the intrusion on certain citizens’ rights since they lack necessity.
Assuming intermediate scrutiny applies, it is clear that a statute requiring a license to be paid for tours cannot pass constitutional muster. The Fifth Circuit gave a one-sentence justification for why the ordinance passes intermediate scrutiny. The court only stated that the regulation is no greater than what is essential to further the government’s interest, that the regulation effectively promotes the government interest, and that without the regulation this interest would be unserved. It never addressed any counter arguments or why these arguments fail.
In contrast, the D.C. Circuit correctly argued that these governmental interests can be served without restrictive regulations. Word of mouth and business reviews can protect the government’s asserted interest without violating the First Amendment. For example, if the tour guides were drug addicts and knew nothing about the city, the business would never last because it would receive terrible reviews and go out of business. A restaurant does not need to pass a test showing they know a certain amount about food or drinks before they serve food. If the food and service is unsatisfactory, the restaurant will not last. A tour guide business can be regulated in the same way. Alternatively, a government can always offer certifications that add legitimacy to a tour guide but do not go so far as to exclude the speech of others. Accordingly, the government does not need to be in the business of suppressing people’s speech.
Conclusion
The district court in Charleston, South Carolina should follow the D.C. Circuit court. The tour guide restrictions violate the First Amendment because they are greater than essential to promote the already questionable governmental interest. These interests can be served without government intervention. The violation is not justified by the purpose of the regulation. Thus, the district court should rule against the licensing requirement, and eventually the Supreme Court should overrule the Fifth Circuit.
[1] E.g., New Orleans Mun. Code Part II, Chap. 30, Art. XXI, § 30-1551; D.C. Code § 47-2836.
[2] Santos, Suzelle, Jacobs, Harve, “Lawsuit: Charleston Tour Guide Licenses Shouldn’t be Required” http://www.cbs46.com/story/31081039/lawsuit-charleston-tour-guide-licenses-shouldnt-be-required CHECK CITE.
[3] Examples of exceptions include defamation, obscenity, and incitement of imminent lawless action. See Miller v. California, 413 U.S. 15 (1973); Brandenburg v. Ohio, 395 U.S. 444 (1969).
[4] Ward v. Rock Against Racism, 491 U.S. 781 (1989).
[5] United States v. O’Brien, 391 U.S. 367, 377 (1968), Clark v. Cmty. For Creative Non-Violence, 468 U.S. 288, 293 (1984).
[6] Cmty. for Creative Non-Violence v. Turner, 893 F.2d 1387, 1392 (D.C. Cir. 1990).
[7] Kagan, 753 F.3d at 561.
[8] Id.
[9] Id. at 562 citing Ward, 491 U.S. at 799.
[10] Id. citing Ward, 491 U.S. at 799.
[11][11] Id.
[12] D.C. Code §47-2836
[13] Edwards, 755 F.3d at 1001-1002.
[14] Id.
[15] Id. at 1003.
[16] Id. citing Edenfield v. Fane, 507 U.S. 761, 770-771 (1993).
[17] 1) Unscrupulous businesses, (2) tourists whose welfare is jeopardized by tour guides lacking a minimal level of competence and knowledge, id.; (3) tour guides lacking “minimal knowledge about what and where they are guiding or directing people to,” (4) consumers unprotected from unknowledgeable, untrustworthy, unqualified tour guides, (5) tour guides lacking “at least a minimal grasp of the history and geography of Washington, D.C.,”; (6) visitors vulnerable to “unethical, or uninformed guides,” (7) tourists treated unfairly or unsafely, (8) tourists who are “swindled or harassed by charlatans,”; (9) degradation of the “quality of the consumer’s experience,” (10) “tour guides . . . too unserious to be willing to study for a single exam,” and (11) tour guides “abandon[ing tourists] in some far-flung spot, or charg[ing] them additional amounts to take them back.” Edwards v. District of Columbia, 943 F. Supp. 2d 109, 122 (D.D.C., 2013).
[18] Edwards, 755 F.3d at 1003.
[19] Id. at 1007-1009.
[20] See O’Brien, supra.
[21] E.g., consumer reviews on the Internet and a general business license. Edwards at 1007.
[22] Id. at 1008.
Tattoo Rights Inked Into The Constitution: Why Tattoos Are Protected Speech Under the First Amendment
Author: Jordie Bacon, Associate Member, University of Cincinnati Law Review
Tattoos often portray significant moments in a person’s life, mark rites of passage, show religious devotion, or express feelings towards others. Getting a tattoo allows someone to make “permanent that which is fleeting.”[1] Tattoos, which at one point were seen as a seedy tradition of bikers and rebels, have now firmly become a part of mainstream, modern society.[2] But despite the widespread popularity and acceptance of tattoos in modern society many courts reject the artistic merits of the art of tattooing and deny it protection under the First Amendment.[3] While the Supreme Court interprets the language of the First Amendment to protect artistic expression, lower courts do not include tattooing as a form of artistic expression.[4] Modern day tattoo artists “emphasize creativity and expression” in their work, and as a result, tattooing is now a leading art form.[5] In consideration of this modern understanding of tattooing, some courts have determined that the act of tattooing is protected under the First Amendment.[6] This is a much-needed change in First Amendment jurisprudence; tattooing should be considered artistic expression and protected under the First Amendment.
Zoning to Prohibit Tattoo Parlors
The case of Euclid v. Ambler Realty Co. is the foremost case surrounding zoning in the United States.[7] In Euclid, the United States Supreme Court found that there was a substantial governmental interest in regulating land uses; however, a municipality must show that there is a rational basis behind its zoning laws—i.e., the zoning ordinance must be related to either public health, safety, morals, or general welfare.[8]
In regard to tattoo parlors, courts have traditionally upheld zoning laws either banning or severely restricting tattoo parlors, stating that it is within the government’s purview to protect the “health, safety and general welfare” of its citizens.[9] These courts found that municipalities can regulate tattooing because it involves “puncturing the skin with a needle creating openings in the human skin through which diseases can pass.”[10] Therefore, any regulation around tattooing directly deals with the health and welfare of municipalities’ citizens and meets the Euclid test for reasonable zoning ordinances.[11]
The courts upholding these restrictive zoning ordinances distinguish the act of tattooing from the tattoo itself; while the tattoo itself is protected speech, the process of tattooing is not.[12] In Yurkew v. Sinclair, for example, the court found a tattoo artist’s “interest in engaging in conduct involving tattooing does not rise to the level of displaying the actual image conveyed by the tattoo, as the tattoo itself is clearly more communicative, and would be regarded as such by the average observer, than the process of engrafting the tattoo on the recipient.”[13] Therefore, these courts have found that “the act of tattooing is one step removed from actual expressive conduct” because it is the client’s message that is being communicated, not the tattoo artist’s message.[14] Thus, the tattoo is considered pure speech and protected under the First Amendment, while the art of tattooing is not and subject to a city’s zoning bylaws.
Tattooing as Artistic Expression
In contrast to the majority, the United States Courts of Appeals for the Ninth and Eleventh Circuits do not distinguish the act of tattooing from the tattoo itself, holding instead that the process of tattooing is artistic expression protected under the First Amendment.[15] In Anderson v. City of Hermosa Beach, the Ninth Circuit held that tattooing was protected speech and that Hermosa Beach could not ban tattoo parlors from operating within the city.[16] Similarly, in Buehrle v. City of Key West, the Eleventh Circuit held that “the act of tattooing is sheltered by the First Amendment, in large part because we find tattooing to be virtually indistinguishable from other protected forms of artistic expression.”[17] The primary difference between a tattoo and a painting is that a tattoo is drawn on the skin, whereas a painting is drawn on a canvas. A form of speech should not lose its First Amendment protection simply because of the surface on which it appears.[18] Deeming tattooing as an artistic expression, these courts do not treat an artist whose chosen medium is the skin differently than an artist whose chosen medium is canvas or clay.
In her decision in Buehrle, Justice Pryor further emphasized the defect of separating tattooing from the tattoo itself by recognizing that the Supreme Court has frequently held that protected artistic expression encompasses different actions by a number of parties on the same piece of work. For example, in Simon & Schuster, Inc. v. Members of the N.Y. State Crime Victims Bd., the Court found that the First Amendment protected both the act of writing and the act of publishing.[19] Thus, as with writing, the act of tattooing is inextricably linked to the tattoo, and deserves First Amendment protection. Simon demonstrates that the Supreme Court does not distinguish between the process of creating art and the product of those artistic processes.[20]
Moreover, tattooing is now a leading art form in the United States; indeed, many tattoo artists are graduates of college art programs who are known for their custom designs.[21] Some tattoo artists even seek copyrights on their finished pieces.[22] Although tattoos may fall outside the traditional understanding of art due to their unique medium, to hold that the First Amendment protections do not apply to tattoo artists diminishes the value of their artwork and severely obstructs their ability to use artistic expression as a form of speech. While these protections should have always been in effect, courts cannot ignore the art form’s recent growth in acceptance.
Conclusion
Tattooing is now considered an art form (with the tattoo a product of this art form). As such, tattooing is a form of artistic expression that deserves protections under the First Amendment. Therefore, zoning ordinances that prohibit tattoo parlors are unconstitutional and should not be upheld.
[1] Susan Benson, Inscriptions of the Self: Reflections on Tattooing and Piercing in Contemporary Euro-American, in Written on the Body: The Tattoo in European and American History 234, 240 (Jane Caplan ed., Princeton Univ. Press 2000).
[2] See Michael Kimmelman, Tattoo Moves from Fringes to Fashion. But Is It Art?, N.Y. Times (Sept. 15, 1995), http://www.nytimes.com/1995/09/15/arts/art-review-tattoo-moves-from-fringes-to-fashion-but-is-it-art.html?pagewanted=all.
[3] See generally Hold Fast Tattoo, LLC v. City of N. Chi., 580 F. Supp. 2d 656 (N.D. Ill. 2008).; see generally State v. White, 348 S.C. 532 (S.C. 2002).; see generally Kennedy v. Hughes, 596 F. Supp. 1487 (D. Del. 1984).
[4] Ryan J. Walsh, Comment, Painting on a Canvas of Skin: Tattooing and the First Amendment, 78 U. Chi. L. Rev. 1063 (2011).
[5] Id at 1090-91.
[6] Supra note 7.
[7] See generally Euclid v. Ambler Realty Co., 272 U.S. 365 (1926).
[8] Id at 20.
[9] People v. O’Sullivan, 409 N.Y.S.2d 332, 333 (N.Y. App. Term 1978).; see generally Hold Fast Tattoo, 580 F. Supp. 2d 656.; see generally Blue Horseshoe Tattoo, V. Ltd. v. City of Norfolk, 72 Va. Cir. 388 (Va. Cir. Ct. 2007).
[10] Carly Strocker, Comment, These Tats Are Made for Talking: Why Tattoos and Tattooing Are Protected Speech Under the First Amendment, 31 Loy. L.A. Ent. L. Rev. 175, 179 (2011).
[11] See State ex rel. Crabtree v. Franklin Cnty. Bd. Of Health, 673 N.E.2d 1281 (Ohio 1997) (holding that by prohibiting legal tattooing in a community, it encourages black market or underground tattoo parlors, which pose larger risks than allowing lawfully regulated tattoo parlor).
[12] Yurkew v. Sinclair, 495 F. Supp. 1248 (D. Minn. 1980).
[13] Id at 1254.
[14] Hold Fast Tattoo, 580 F. Supp. 2d at 660.
[15] Supra note 5.
[16] Anderson, 621 F.3d 1051, 1055 (9th Cir. 2010).
[17] Buehrle, 2015 U.S. App. LEXIS 22782 at *4 (11th Cir. 2015).
[18] Supra note 17 at 1062.
[19] 502 U.S. 105, 116-118 (1991).
[20] Supra note 15 at 1061.
[21] Supra note 9 at 187.
[22] Id.
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Posted in Associate Members, Comment, Constitutional Law, General Posts, Legislation, Property Law
Tagged Eleventh Circuit, First Amendment, free speech, Ninth Circuit, Tatoo Parlors, Zoning ordinances