Tattoo Sign Decision
Was A Bad One
Gary Gerard,
dumbhoosier.com
I don’t pretend to be an expert on Constitutional law, but I’m pretty
sure what the local zoning board did with regard to Hank’s Tattoo is a
violation of his civil rights.
Careful Times-Union readers may recall the story that ran earlier this
week.
Seems Hank Hernandez and Jonathan Brown have tattoo shops in town.
Problem is, there is this ordinance which states you can’t have a
tattoo shop within 400 feet of a residence.
For whatever reason, both shops opened and were in business for some
time even though they were within 400 feet of a residence. I guess I’m
not sure why it’s not cool to have a tattoo shop within 400 feet of a
residence, but that’s a different column.
Anyway, it comes to the attention of the head of the Warsaw plan
department that these tattoo shops should have requested zoning
exceptions before they went into business in those locations.
The plan guy looks into the matter. He concludes there really is no
harm in these tattoo places existing where they are. He recommends they
come before the zoning board to request exceptions after the fact.
The plan guy recommends to the zoning board that they grant the
exceptions.
So the tattoo guys showed up to get their exceptions, and the zoning
board approved them – but not without a bizarre restriction.
They can have their tattoo shops, but they can no longer have any
visible signage that says “tattoo,” “body piercing” or “body art.”
OK, now I must say I have seen a lot of zoning board stories over the
years and I have seen some unusual rulings. But this is just abject
nonsense.
It’s akin to telling the Ford dealer his sign can’t say Ford.
The Times-Union website and Facebook page fairly lit up after we posted
the story.
Then the story got reposted to tons of individual’s Facebook pages and
everywhere it showed up it had 40-comment threads. Virtually all the
comments were mocking the decision.
This was one of my favorite comments:
“Whew. I was worried the words ‘tattoo’ and ‘piercing’ would detract
from signage for quick cash, payday loans, liquor and cigarettes ... or
the 3 freakin’ auto parts stores within 20 yards of one another on
Detroit Street.”
All one really has to do is type the phrase “commercial speech” into
Google and you see pretty rapidly that the zoners are off base.
It’s true that for a long time the U.S. Supreme Court took the view
that commercial speech – speech that proposes or promotes some sort of
economic transaction – was not protected by the First Amendment. The
reasoning was that the powers of government to regulate commerce should
also include the power to regulate speech about commerce.
But times change.
I read a brief history of commercial speech and the Supreme Court. I
found it on the University of Missouri-Kansas City School of law’s
website. (It was, like, the third Google hit I think.)
It noted a series of cases in the 1970s that invalidated state
regulations affecting services such as abortion providers and products
such as drugs. In Virginia State Board of Pharmacy (1976), for example,
the Court struck down a law prohibiting the advertising of prices for
prescription drugs. The Court noted that price information was very
important to consumers, and suggested that the First Amendment protects
the “right to receive information” as well as the right to speak. Given
the free speech interests at stake, the Court said, the state
regulation must support a substantial interest.
City of Cincinnati v. Discovery Network is a somewhat atypical
commercial speech case, the UMKC synopsis said. (This one seemed highly
relevant to me with regard to the local tattoo situation.)
The case involved a challenge to a local ordinance that – for aesthetic
reasons – banned newsracks for primarily commercial publications such
as shoppers and real estate guides. The Court, 6 to 3, invalidated the
law, noting that newsracks containing commercial publications are no
uglier than newsracks containing traditional newspapers. The Court
viewed the ordinance as content-based, and applied something close to
strict scrutiny.
My question to the zoners: Is the word “tattoo” somehow uglier than the
word “liquor”?
Then, four years later in Central Hudson Gas & Electric v. Public
Service Commission, the Court announced a test for evaluating
commercial speech regulations that would be used in many subsequent
cases, the synopsis said.
The Central Hudson test recognizes the constitutionality of regulations
restricting advertising that concerns an illegal product or service, or
which is deceptive. For all other restrictions on commercial speech,
however, the Court’s test requires that the government show that
the regulation directly advances an important interest and is no more
restrictive of speech than necessary.
So, that means, since there is nothing illegal or deceptive about the
word “tattoo,” the zoners in Warsaw have to show that expunging the
word “tattoo” from signs directly advances an important interest.
They simply can’t do that. It doesn’t even indirectly advance an
important interest. And they certainly can’t prove that banning
“tattoo” is no more restrictive than necessary. It not necessary at all.
And then there’s 44 Liquormart v. Rhode Island (1996). That decision
invalidated a law prohibiting price advertising of alcohol. The Court
emphatically rejected the suggestion made in a case a decade earlier
that states have greater freedom to restrict advertising related to
“vices” than other types of economic activities.
So even if the zoners perceive tattoo art as a “vice” – which it
certainly isn’t – they can’t restrict advertising related to it
any more than other types of economic activities.
The Court also makes clear in 44 Liquormart that the power to ban a
product completely (in this case under the 21st Amendment) does not
carry with it the “lesser power” to restrict advertising concerning
that product.
So even if tattooing was banned, the zoners couldn’t necessarily ban
ads for it.
There’s much more, but this is starting to get a little wonky, so
let me cut to the chase.
Hernandez called the Indiana Civil Liberties Union and is talking to a
local attorney. He feels his civil rights have been violated and I
think he’s right.
C’mon, zoning board. Be smart. Do the right thing. If you go to court
over this you’re gonna get your hat handed to you.
Don’t waste tax money trying to defend a dopey decision.
Just rescind it and we’ll move on.
Archives
|
