1. Why is the ordinance not a violation of the First Amendment?

2. What legitimate government interest(s) is/are satisfied with the prohibition on tattoo parlors? Does it matter that 33 percent of the U.S. population now has a tattoo?

Hold Fast Tattoo (Plaintiff) wished to open a tattoo studio on North Sheridan Road in the City of North Chicago and obtained a prospective lessor at its desired location. In accordance with North Chicago’s zoning ordinance, Hold Fast Tattoo applied for a special use permit to operate a tattoo studio at that location. On June 21, 2007, the Zoning Board of Appeals of North Chicago recommended approval of the permit to its city council. The proposal was discussed at two council meetings, on July 9, 2007, and July 16, 2007, and Hold Fast Tattoo’s request for a special use permit was ultimately denied. The city council informed Hold Fast that its special use permit was denied because it was “not the kind of business” the council wanted in North Chicago. Hold Fast filed suit.

JUDICIAL OPINION

MORAN, Senior District Judge … Plaintiff argues that its right to draw tattoos is protected by the First Amendment free speech clause. The nature of the right to draw tattoos is a question that has not been directly addressed by the Seventh Circuit nor the Supreme Court. However, we are persuaded by related authority, as well as the decisions of numerous other courts, that the act of tattooing is not constitutionally protected free speech.

The First Amendment protects speech. It also protects expressive conduct, as long as the conduct is “sufficiently imbued with elements of communication to fall within the scope” of the First Amendment. To determine whether an activity warrants First Amendment protection, the court must determine whether there was intent to convey a particularized message and whether there is a great likelihood that the message would be understood by those who view it. The act of tattooing fails the first prong of this test because the act itself is not intended to convey a particularized message. The very nature of the tattoo artist is to custom-tailor a different or unique message for each customer to wear on the skin. The act of tattooing is one step removed from actual expressive conduct, which is similar to a sound truck, which enables each customer to express a particularized message, but the sound truck vehicle itself is not expressive. Similarly, the tattoo artist’s daily work may be used by customers to convey a message, but it is not protected by the First Amendment in and of itself. Because the act of tattooing fails the first prong of the test for First Amendment protection, there is no “message” to be understood by viewers and tattooing must also fail the second prong. Therefore, this court agrees with other courts that have held the act of tattooing is not an act protected by the First Amendment. Where no fundamental right or suspect class is at issue, “legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest.” ……………..