In a Forbes article, Nick Sibilla of the Institute of Justice writes:
One of the quirkiest First Amendment cases to close out 2015 involved whether officials in Key West, Fla. had the right take on Jimmy Buffett’s iconic song, “Margaritaville.” Worried that drunk tourists would go out and get inked if there were more than two tattoo parlors in Key West’s historic district, officials cited the passage where Buffett’s character wakes up one morning with a “brand new tattoo,” confessing “how it got there/I haven’t a clue.”
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Brad Buehrle wanted to open a tattoo parlor in Key West’s historic district, but the city refused to grant him a business license. From 1966 to 2007, Key West completely banned all tattoo shops, supposedly at the behest of the U.S. Navy, which did not want sailors getting inked. In response to a prior lawsuit challenging the ban, two tattoo businesses were allowed to open up shop in the district—but not Buehrle’s. So he took Key West to court.
On December 29, Judge Jill Pryor, writing for a unanimous Eleventh U.S. Circuit Court of Appeals, ruled that under the First Amendment, “tattooing is protected artistic expression.” While the U.S. Supreme Court has yet to address tattooing specifically, it has repeatedly extended “freedom of speech” protection to a wide variety of media, including movies, music, even nude dancing. Moreover, in 2010, the Ninth Circuit struck down a similar ban on tattoo shops in Hermosa Beach, Calif., finding that “a form of speech does not lose First Amendment protection based on the kind of surface it is applied to.”
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So in order to pass muster under the First Amendment, Key West had to show that its tattoo-parlor ban was “narrowly tailored” and served a “significant governmental interest.” In seeking to meet that burden, Key West asserted that “tattoo establishments are inconsistent with the district’s historic character” and that “rash tourists will obtain regrettable tattoos, leading to negative association with Key West.” In turn, that would “adversely affect tourism.”
While the court agreed with Key West that maintaining historic districts and attracting tourists are “substantial government interests,” the city still needed to provide some evidence that its ban would actually advance those interests. It didn’t.