Team R - First Amendment Center

5 downloads 109 Views 249KB Size Report
Jan 14, 2013 ... Ancient History, in TATTOO HISTORY: A SOURCE BOOK 11 (Steve .... learned the traditional Japanese freehand style by tattooing koi, an ...
NO. VU-SUPP 2012

In The Supreme Court of the United States ------------◆-----------MAYOR BUCK MERRYWEATHER, in his official capacity; THE CITY OF MAGNOLIA HILLS; AND THE MAGNOLIA HILLS MEDICAL BOARD, Petitioners -V.NORMAN MALONE, Respondent ------------◆-----------ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRTEENTH CIRCUIT ------------◆-----------BRIEF FOR THE RESPONDENT ------------◆-----------TEAM R COUNSEL FOR RESPONDENT NATIONAL FIRST AMENDMENT MOOT COURT COMPETITION AT VANDERBILT UNIVERSITY, 2013

STATEMENT OF ISSUES I.

In light of this Court’s expansive protections for artistic expression, whether tattooing performed by the acclaimed tattoo artist, Norman Malone, is protected by the Speech Clause of the First Amendment.

II.

Whether the City of Magnolia’s mandate that Norman Malone obtain a medical degree or hire a full-time physician before creating his signature tattoos, despite his exemplary health and safety record, impermissibly burdens Malone’s freedom of speech.

i

TABLE OF CONTENTS STATEMENT OF ISSUES................................................................................................i TABLE OF CONTENTS..................................................................................................ii TABLE OF AUTHORITIES...........................................................................................iv STATEMENT OF JURISDICTION..............................................................................vii STATEMENT OF THE CASE.......................................................................................vii STATEMENT OF THE FACTS...................................................................................viii SUMMARY OF THE ARGUMENT...............................................................................1 ARGUMENT......................................................................................................................2 I.

IN ORDER TO SAFEGUARD NORMAN MALONE’S FIRST AMENDMENT RIGHTS, THIS COURT SHOULD PROTECT THE PROCESS OF TATTOOING AS PURE SPEECH............................................2 A.

The Process of Tattooing is Pure Speech Because the Tattooing Process and Product Are Indivisible.........................................................................3 1.

2.

B. II.

Malone’s Tattoos Are Artistic Expression Warranting Full First Amendment Protection.....................................................................3 a.

The historical and emotional significance of tattooing demonstrates that tattoos are pure speech............................4

b.

Tattoos are a type of painting fully shielded by the First Amendment..........................................................................6

Since Tattoos Are Pure Speech, the Process of Their Creation Is also Protected as Pure Speech Because the Process and Product Are Indivisible..................................................................................7

Malone’s Tattooing Process in Itself Is Pure Speech...................................9

EVEN IF MALONE’S TATTOOING IS NOT PURE SPEECH, THIS COURT SHOULD FIND IT TO BE EXPRESSIVE CONDUCT...................12 A.

Malone Intends to Communicate a Particularized Message with Each Tattoo.........................................................................................................13

ii

B. III.

The Circumstances Surrounding Malone’s Tattooing Demonstrate a Great Likelihood that an Observer Would Understand Malone’s Message........14

THIS COURT SHOULD FIND THAT THE PETITIONERS IMPERMISSIBLY BURDEN MALONE’S SPEECH BY IMPOSING MEDICAL REQUIREMENTS ON HIS ARTISTIC EXPRESSION............16 A.

B.

The Petitioners’ Mandate that Malone Employ a Full-Time Physician or Obtain a Medical Degree Is Not Narrowly Tailored to Further Any Government Interest...................................................................................17 1.

Tattooing Is a Widely Practiced Medium of Expression that the Petitioners Substantially Burden...................................................17

2.

The Petitioners’ Ordinance Fails to Meaningfully Further Any Interest in Preserving Public Health.............................................18

3.

Given that the Petitioners Burden a Substantial Amount of Speech Without Promoting Public Health, the Ordinance Is Not Narrowly Tailored to Further Any Government Interest...............................20

The Ordinance Fails to Provide Ample Alternative Channels of Communication..........................................................................................21

IV.

IN THE EVENT THIS COURT FINDS THAT MALONE’S TATTOOING IS VOID OF EXPRESSION, IT SHOULD CONCLUDE THAT THE PETITIONERS’ ILLEGAL ACTIONS FAIL TO FURTHER ANY LEGITIMATE GOVERNMENT INTEREST.................................................24

V.

CONCLUSION....................................................................................................25

iii

TABLE OF AUTHORITIES UNITED STATES SUPREME COURT CASES: City of Cleburne, Texas v. Cleburne Living Ctr., 473 U.S. 432 (1985)...............................................................................................24 City of Ladue v. Gilleo, 512 U.S. 43 (1994)...........................................................................................19, 21 City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002)...............................................................................................17 Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288 (1984)...............................................................................................16 Cohen v. California, 403 U.S. 15 (1971)...................................................................................2, 4, 14, 17 Dep’t of Agric. v. Moreno, 413 U.S. 528 (1973)...............................................................................................24 Hurley v. Irish-American Gay, Lesbian, & Bisexual Grp. of Boston, 515 U.S. 557 (1995).......................................................................2, 4, 6, 11, 12, 13 Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952).................................................................................................2 Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981)...............................................................................................23 Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241 (1974)...............................................................................................11 Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Rev., 460 U.S. 575 (1983).............................................................................................3, 7 NAACP v. Button, 371 U.S. 415 (1963)...............................................................................................20 Nat'l Endowment for the Arts v. Finley, 524 U.S. 569 (1998).................................................................................................2 Red Lion Broad. Co. v. FCC, 395 U.S. 367 (1969)...............................................................................................14 Schad v. Borough of Mount Ephraim, 452 U.S. 61 (1981).................................................................................................23 Schneider v. State, 308 U.S. 147 (1939)...............................................................................................23 Se. Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975)...............................................................................................17 Spence v. Washington, 418 U.S. 405 (1974).......................................................................12, 13, 14, 15, 16 Texas v. Johnson, 491 U.S. 397 (1989).....................................................................................6, 12, 16 Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969)...............................................................................................17 United States v. O’Brien, 391 U.S. 367 (2002)...............................................................................7, 16, 17, 23

iv

Ward v. Rock Against Racism, 491 U.S. 781 (1989).............................................................................2, 4, 8, 16, 20 Wooley v. Maynard, 430 U.S. 705 (1977) ..............................................................................................22 UNITED STATES CIRCUIT COURT OF APPEALS CASES: Am. Civil Liberties Union of Illinois v. Alvarez, 679 F.3d 583 (7th Cir. 2012), cert. denied, 133 S. Ct. 651 (2012)..........................8 Anderson v. City of Hermosa Beach, 621 F.3d 1051 (9th Cir. 2010).....................................................2, 3, 6, 8, 9, 11, 18 Bery v. City of New York, 97 F.3d 689 (2d Cir. 1996).................................................................................9, 14 UNITED STATES DISTRICT COURT CASES: Yurkew v. Sinclair, 495 F.Supp. 1248 (D. Minn. 1980)..........................................................8, 9, 12, 18 STATE COURT CASES: Beckerman v. City of Fort Lauderdale, 423 So. 2d 925 (Fla. Dist. Ct. App. 1982).............................................................18 Coleman v. City of Mesa, 234 P.3d 863 (Ariz. 2012)........................................................................................3 Coleman v. City of Mesa, 265 P.3d 422 (Ariz. Ct. App. 2011) reasoning affirmed, but decision vacated, 284 P.3d 863 (2012)................................................................................................11, 12 Commonwealth v. Meuse, 10 Mass. L. Rptr. 661 (Mass. Super. Ct. 1999).....................................................18 Golden v. McCarty, 337 So. 2d 388 (Fla. 1976).....................................................................................24 Grossman v. Baumgartner, 22 A.D.2d 100 (N.Y. App. Div. 1964)....................................................................5 State ex rel.Crabtree v. Franklin Cnty. Bd. of Health, 673 N.E.2d 1281 (Ohio 1997)..........................................................................18, 19 State v. White, 560 S.E.2d 420 (S.C. 2010).....................................................................................3 RULES AND STATUTES: 28 U.S.C. § 1254 (2006)....................................................................................................vii 42 U.S.C. § 1983 (2006)....................................................................................................vii FED. R. CIV. P. 56...............................................................................................................vii CAL. HEALTH & SAFETY CODE §§ 119300-119328 (Supp. 2012)...............................20, 21 KAN. STAT. ANN. §§ 65-1940-1955 (2009 & Supp. 2011)................................................21

v

BOOKS: CLINTON R. SANDERS, CUSTOMIZING THE BODY: THE ART AND CULTURE OF TATTOOING (1989)...................................................................................................................................5 DON ED HARDY, TATTOOING THE INVISIBLE MAN: BODIES OF WORK (2000)...................10 OTHER SOURCES: Ancient History, in TATTOO HISTORY: A SOURCE BOOK 11 (Steve Gilbert, ed., 2000).......4 Ashlee Vance, Ed Hardy’s Tattoo Art is Booty for Digital Pirates, N.Y. TIMES (Nov. 12, 2009), http://www.nytimes.com/2009/11/13/us/13sftattoo.html.........................5 Carly Strocker, 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 (2011)...........................................................................................................................21, 22 Clarissa Sebag-Montefiore, Horihide Still Practices the Dying Art of Hand Tattoo, L.A. TIMES (June 24, 2012), http://articles.latimes.com/2012/jun/24/entertainment/la-caculture-japan-20120624...........................................................................................6, 14, 22 Diagnoses of HIV Infection and AIDS in the United States and Dependent Areas, 2010, CDC.GOV (Feb. 28, 2012), http://www.cdc.gov/hiv/surveillance/resources/reports/ 2010report/index.htm.........................................................................................................19 Hepatitis C FAQs for the Public, CDC.GOV (Oct. 22, 2012), http://www.cdc.gov/hepatitis /c/cfaq.htm.........................................................................................................................19 Kazuo Oguri (“Horihide”), Traditional Japanese Tattooing, TATTOOS.COM, http://www.tattoos.com/tebori-oguri.html (last visited Jan. 14, 2013)..........................5, 10 Kazuo Oguri (“Horihide”), My Apprenticeship, in TATTOO HISTORY: A SOURCE BOOK 82 (Steve Gilbert, ed., 2000)...................................................................................................10 Portrait of the Millennials, PEWRESEARCH.ORG (March 11, 2010), http://www.pewresearch.org/2010/03/11/portrait-of-the-millennials/...............................18 Samantha Braverman, One in Five U.S. Adults Now Has a Tattoo, HARRISINTERACTIVE.COM (Feb. 23, 2012), http://www.harrisinteractive.com/NewsRoom/ HarrisPolls/tabid/447/mid/1508/articleId/970/ctl/ReadCustom%20Default/ Default.aspx.......................................................................................................................15 William Butler Yeats, Among School Children, in Poetry Speaks 35 (Elise Paschen et al. eds., 2001)...........................................................................................3

vi

STATEMENT OF JURISDICTION The United States Court of Appeals for the Thirteenth Circuit entered judgment on July 29, 2011. The petition for a writ of certiorari was granted on May 15, 2012. This Court has jurisdiction under 28 U.S.C. § 1254(1) (2006).

STATEMENT OF THE CASE Norman Malone brought suit under 42 U.S.C. § 1983 in the United States District Court for the District of Oaklandia in response to the Magnolia Hills Medical Board’s (“Medical Board”) denial of his application for a special permit to open a tattoo studio. DR at 2.1 Malone asserted that the City of Magnolia Hills, its Mayor, Buck Merryweather, in his official capacity, and the Medical Board (together, “Petitioners”) violated his First Amendment right to free speech in their application of the Magnolia Hills Prevention of Epidemic Disease Spreading Ordinance (“Ordinance”). Id. Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, the parties cross-motioned for summary judgment based on undisputed facts. Id. On October 15, 2010, United States District Judge Spader granted the Petitioners’ motion, finding that the act of tattooing is mere conduct, void of any expressive component, and upholding the Petitioners’ application of the Ordinance under rationality review. Id. at 19. Consequently, Malone appealed this decision and, on July 29, 2011, the United States Court of Appeals for the Thirteenth Circuit reversed. AR at 34. The Thirteenth Circuit held that tattooing is pure speech, protected by the First Amendment, and that the                                                                                                                 1 Citations to the District Court’s Opinion below, Malone v. Merryweather, No. VU 2012-1-DIST (D. Oak. Oct. 15, 2010), shall be denoted as DR at ___. Citations to the Thirteenth Circuit’s Opinion below, Malone v. Merryweather, No. VU 2012-2-APP (13th Cir. July 29, 2011), shall be denoted as AR at ___. vii

Ordinance is an impermissible time, place, or manner regulation of Malone’s speech. AR at 34, 36. Justice Hopewell dissented, stating that though tattooing is protected under the First Amendment, it is expressive conduct rather than pure speech. AR at 41 (Hopewell, J., dissenting). He further asserted that the Ordinance is a permissible regulation of Malone’s artistic expression. Id. On May 15, 2012, the Supreme Court of the United States granted the Petitioners’ petition for certiorari. Malone v. Merryweather, No. VUSUPP 2012 (May 15, 2012).

STATEMENT OF THE FACTS Malone is a renowned tattoo artist whose ability to inscribe images onto a corporeal canvas is renowned. DR at 4. Since 1983, his tattoos, which are done in the traditional Japanese freehand style, have received numerous awards and attracted countless clients. Id. Recently, however, the upscale tourist town of Magnolia Hills effectively banned Malone from tattooing within its borders by denying his special permit request under the Ordinance, which was enacted following debates labeling tattooing an antisocial activity. Id. at 5. Despite Malone’s impeccable health and safety record, the Petitioners found that he was incapable of upholding proper safety procedures, creating a de facto ban on his ability to engage in free speech. Id. at 5-7. To begin with, Malone earned a Bachelor of Fine Arts in printmaking from Oaklandia State University in 1980. Id. at 3. Upon graduating, Malone pursued his passion across the Pacific Ocean to the studio doors of Horihide, a world-famous Japanese tattoo artist based in Okinawa, Japan. Id. Under Horihide’s mastery, Malone learned the traditional Japanese freehand style by tattooing koi, an ornamental variety of

viii

fish that offers vast opportunities for color experimentation. Id. at 4. Though Malone focused his artistry on koi due to their aesthetic appeal, in Japanese culture the koi is imbued with symbolic meaning. Id. In addition to the freehand style, Horihide also trained Malone in techniques essential to the health and safety of the craft of tattooing. Id. at 5, 7. Accordingly, Malone handcrafts individual needles to meet the design qualities of the tattoo, disposing of each needle upon completion. Id. Malone has maintained an impeccable health and safety record to date; in over thirty years of experience, his work has never given rise to any known health and safety concerns. Id. at 6-7. In 1983, after completing his three-year apprenticeship, Malone returned to the United States and opened his own tattoo studio, Kofun Tattoos, in the city of Hawkweed Valley, Oaklandia. Id. at 3. He became renowned for his signature freehand style, attracting a large customer base from neighboring cities, including Magnolia Hills, located twenty miles away. Id. at 5. Malone garnered acclaim for his vibrant koi tattoos, winning several awards at tattooing festivals and conventions. Id. at 4. Although Malone occasionally creates stencil-based tattoos for American customers uncomfortable with his unique freehand style, Malone is best known for his large, vivid full back tattoos. Id. at 4. In creating these original works, Malone allows the customers to offer input regarding the size, placement, and design of the tattoo. Id. Ultimately, Malone always retains full artistic control over the coloring and style, signing each original tattoo with his initials, “NM.” Id. Malone refuses to be bound by the customers’ requests for specific images, especially eschewing Chinese characters. Id.

ix

Following Hor ihide’s example, Malone has trained several apprentices through his own three-year apprenticeship program. Id. Recently, two of Malone’s former apprentices opened shops in Hawkweed Valley, spurring competition with Kofun Tattoos. Id. Although these two apprentices use stencils instead of freehand techniques, the tattoos created in their shops are highly similar to Malone’s; many of their customers specifically request exact replicas of Malone’s koi tattoos. Id. In early 2009, the increased competition from these new tattoo shops led Malone to attempt to open another studio, Shogun Studios, in Magnolia Hills, Oaklandia. Id. at 4-5. Magnolia Hills is reputed as an “upscale tourist town” with extensive boardwalks and no tattoo parlors. Id. at 5. Additionally, Malone had already generated a substantial following of patrons in Magnolia Hills, who traveled twenty miles to Hawkweed Valley to be tattooed by him. Id. However, the Petitioners circumvented Malone’s plans to open a tattoo studio by denying his permit application. Id. The Petitioners claimed that Shogun Studios would violate the Ordinance, which classifies the art of tattooing as “the practice of medicine” and imposes stringent licensing requirements. Id. at 6. Namely, the Ordinance requires that the tattoo artist either “hold a medical license recognized by the American Board of Medical Specialties or receive a special permit from the Magnolia Hills Medical Board.” Id. In 2008, the Magnolia Hills City Council debated the Ordinance along with other legislation, purportedly in response to a 2007 increase in incidences of Hepatitis B and C in Oaklandia. Although the state eventually labeled the increased transmissions an epidemic, it did not find any state regulations necessary for the protection of the public.

x

Id. at 5. During the debate, Magnolia Hills Mayor, Buck Merryweather, issued a statement in support of passing the Ordinance, in which he labeled tattooing a “dangerous and antisocial” activity and accused tattoo artists, such as Malone, of “flaunting their practices and products with no regard for the safety of their customers.” Id. Though Hepatitis B and C can potentially spread through shared needles and contaminated ink, Magnolia Hills did not have any evidence linking the transmission of these diseases to tattooing. Id. Nevertheless, the Ordinance was enacted. Id. No municipality within 50 miles of Magnolia Hills has passed a similar regulation. Id. at 7. Because Malone is not a licensed physician, he applied to the Medical Board for a special permit on October 2, 2009. Id. at 6. Under the Ordinance, the Medical Board may grant a special permit to an applicant who “demonstrates the ability to uphold the health and safety standards of a medical practice,” and who “shows cause as to why a medical license has not been obtained.” Id. However, despite Malone’s outstanding thirty-year health and safety record and the lack of any known transmissions of bloodborne diseases linked to Kofun Tattoos, the Medical Board denied his petition for a special permit on October 5, 2009. Id. The Medical Board stated that Malone “did not meet the definition of a medical practitioner, nor did he show cause why he could not obtain the necessary medical qualifications.” Id. The Medical Board further alleged that Malone failed to meet the “safety standards of a medical practice,” claiming that he could not maintain a safe studio without “access privileges to a hospital or a licensed doctor on staff.” Id. Malone appealed this decision on October 26, 2009, arguing that the safety training that he received from Horihide enabled him to uphold safety standards. Id. at 7. Also, he

xi

emphasized that he never reuses needles, handcrafting them individually for every tattoo. Id. Nevertheless, the Medical Board denied Malone’s appeal on November 23, 2009 for the same reasons contained in its original decision. Id. Consequently, Malone was effectively barred from performing his artistry in Magnolia Hills. Id.

xii

SUMMARY OF THE ARGUMENT This Court should affirm the decision of the Thirteenth Circuit Court of Appeals because the Petitioners’ Ordinance unjustifiably trammels Malone’s tattooing, an art form integral to modern culture. Malone engages in pure speech with each signature image that he inscribes onto the human form. As a threshold matter, Malone’s tattoos are protected as pure speech because, like other art forms shielded by the First Amendment, they are an indispensable aspect of current culture and, indeed, human history. Accordingly, Malone’s tattooing must also be protected as pure speech because there can be no distinction between the process of creating pure speech and the end result. Moreover, the process of tattooing, viewed in isolation, should be protected as pure speech because each movement of Malone’s needles emanates his artistic expression. Yet, even if tattooing is not pure speech, it nevertheless garners First Amendment protection as expressive conduct. Malone’s expression permeates the conduct of tattooing, similar to burning a draft card. Malone not only has the intent to express himself while tattooing, but, in light of his renown and the inherently expressive nature of tattoos, any observer would understand his artistic message. Given that Malone’s tattooing is pure speech or expressive conduct, the Petitioners use the guise of public health concerns to violate Malone’s First Amendment rights. The Petitioners fail to meet their burden of demonstrating that Malone, who has an impressive thirty-year safety record, presents any threat of spreading blood-borne disease. Furthermore, even if Malone’s tattooing is found wanting of any expressive component, the Petitioners’ Ordinance is an illegal exercise of animus. Therefore, this Court should affirm the decision of the Thirteenth Circuit Court of Appeals.

1

ARGUMENT I.

IN ORDER TO SAFEGUARD NORMAN MALONE’S FIRST AMENDMENT RIGHTS, THIS COURT SHOULD PROTECT THE PROCESS OF TATTOOING AS PURE SPEECH The Magnolia Hills Ordinance, in concert with the Petitioners’ failure to grant

Malone’s request for a special tattooing permit, violates his First Amendment right to engage in pure speech. The First Amendment trumpets “Congress shall make no law . . . abridging the freedom of speech.” U.S. CONST. amend. I. This liberty extends beyond lingual limits to encompass artistic expression. See Hurley v. Irish-American Gay, Lesbian, & Bisexual Grp. of Boston, 515 U.S. 557, 569 (1995) (“[T]he Constitution looks beyond written or spoken words as mediums of expression.”). While the First Amendment does not extend to an endless array of activities, it protects conduct that is “purely expressive.” Cohen v. California, 403 U.S. 15, 18 (1971). Although this Court has never pronounced a dispositive test for determining when artistic expression constitutes pure speech, it recognizes a wide variety of art forms as pure speech based upon their “expressive character” alone. Nat'l Endowment for the Arts v. Finley, 524 U.S. 569, 602 (1998). Examples of these fully protected art forms include wordless music, movies, and paintings. See Hurley, 515 U.S. at 568-69; Ward v. Rock Against Racism, 491 U.S. 781, 790 (1989); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501-02 (1952). Similar to each of these modes of artistic expression, the process of tattooing is wholly expressive and should therefore garner the First Amendment’s full protection. Hence, this Court should follow the emerging trend, as set forth by the Ninth Circuit’s decision in Anderson v. City of Hermosa Beach, and conclude that Malone’s

2

tattooing process is protected as pure speech. See Anderson v. City of Hermosa Beach, 621 F.3d 1051, 1068 (9th Cir. 2010); Coleman v. City of Mesa, 234 P.3d 863, 871 (Ariz. 2012); State v. White, 560 S.E.2d 420, 425 (S.C. 2010) (Waller, J., dissenting). In concluding that the process of tattooing is pure artistic expression, the Anderson court first found that tattoos themselves are pure speech. Anderson, 621 F.3d at 1061. Further, because this Court has never separated the process of creating pure speech from the final product, Anderson held that the act of tattooing is protected as pure speech. Id. at 1062. A contrary conclusion would effectively “disaggregate Picasso from his brushes and canvas,” protecting the portrait but not the paint, the tattoo but not the ink. Id. A.

The Process of Tattooing is Pure Speech Because the Tattooing Process and Product Are Indivisible To find that Malone’s process of tattooing is pure speech, this Court should

preliminarily determine that tattoos are pure speech. This determination will lead to the inevitable conclusion that the tattooing process should also be protected as pure speech because there is no distinction between the creative process and product. See Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Rev., 460 U.S. 575, 583 (1983). Thus, “just as we cannot know the dancer from the dance,” the process of tattooing and tattoos themselves are “inextricably intertwined,” thereby meriting protection as pure speech. Anderson, 621 F.3d at 1062; William Butler Yeats, Among School Children, in POETRY SPEAKS 35, 35 (Elise Paschen et al. eds., 2001). 1.

Malone’s Tattoos Are Artistic Expression Warranting Full First Amendment Protection

3

As a foundational matter, this Court should find that every tattoo created by Malone is a work of art shielded as pure speech. First, like the art forms that currently enjoy the First Amendment’s full protection, tattoos are deeply embedded in history and evoke emotional responses. Second, tattoos are analogous to paintings, a fully protected art form. See Hurley, 515 U.S. at 569. Thus, recognizing tattoos as pure speech would be a natural progression in this Court’s jurisprudence. a.

The historical and emotional significance of tattooing demonstrates that tattoos are pure speech

In according full First Amendment protection to various art forms, this Court emphasizes the historical and emotional significance of the medium of expression. For instance, this Court declared music to be protected as pure speech because it has “appealed to the intellect and to the emotions” since Plato’s Republic. Ward, 491 U.S. at 790. Similarly, movies are fully protected due to their ability to affect “the subtle shaping of thought which characterizes all artistic expression.” Burstyn, 343 U.S. at 501. Indeed, the “emotive function” of speech “may often be the more important element of the overall message sought to be communicated.” Cohen, 403 U.S. at 26. Tattoos are analogous to these forms of expression because tattooing is deeply entrenched in history and tattoos are emotionally charged. Tattooing traverses temporal and cultural bounds. Evolving since the dawn of mankind, tattoos first arose in ancient civilizations. Ancient History, in TATTOO HISTORY: A SOURCE BOOK 11, 11 (Steve Gilbert, ed., 2000). From their inception, tattoos “have been associated with a high level of artistic endeavor.” Id. at 17. For example, the freehand tattooing style practiced by Malone, known as tebori, is a traditional Japanese

4

art form. Kazuo Oguri (“Horihide”), Traditional Japanese Tattooing, TATTOOS.COM, http://www.tattoos.com/tebori-oguri.html (last visited Jan. 14, 2013) [hereinafter Traditional Japanese Tattooing]. By the 1970s, tattooing garnered acclaim as a fine art. CLINTON R. SANDERS, CUSTOMIZING THE BODY: THE ART AND CULTURE OF TATTOOING 27 (1989). Tattooists often were formally educated in art, viewing this medium as a creative process rather than a business. Id. at 19. Malone epitomizes this fine art movement, having earned a Bachelor of Fine Arts in printmaking and having won several awards at tattooing expositions. DR at 3, 4. Additionally, tattoos have been embraced by mainstream culture; beloved tattoo designs are affixed to “sweaters, jeans, shower curtains, golf carts, nasal strips and lollipops,” grossing over $700 million annually. Ashlee Vance, Ed Hardy’s Tattoo Art is Booty for Digital Pirates, N.Y. TIMES (Nov. 12, 2009), http://www.nytimes.com/2009/11/13/us/13sftattoo.html. Furthermore, similar to music and movies, tattoos strongly appeal to emotions. Though tattooing is now in the cultural foreground, it was once entrenched in the social underground, evincing negative reactions. AR at 26-27. Particularly, in the 1960s, tattoos triggered sentiments associated with social degeneracy and criminality; in fact, in 1964, four justices of a New York appellate court linked tattooing to “drug addiction” and “sexual devian[cy].” Grossman v. Baumgartner, 22 A.D.2d 100, 102 (N.Y. App. Div. 1964). Likewise, Mayor Merryweather labeled tattoos as “dangerous and antisocial.” DR at 5. These negative responses elevate the emotional significance of tattoos, and increase the imperative of protection. Indeed, “[i]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the

5

expression of an idea simply because society finds the idea itself offensive or disagreeable.” Texas v. Johnson, 491 U.S. 397, 414 (1989). In addition to negative feelings, tattoos also bear positive emotional significance. For example, Malone’s signature koi tattoos embody bravery and perseverance. Clarissa Sebag-Montefiore, Horihide Still Practices the Dying Art of Hand Tattoo, L.A. TIMES (June 24, 2012), http://articles.latimes.com/2012/jun/24/entertainment/la-ca-culturejapan-20120624 [hereinafter Dying Art of Hand Tattoo]. Horihide explained that the koi fish “does not thrash around” when caught, but rather “quietly accept[s] its fate.” Id. Thus, recipients of the tattoo “take the spirit of the carp rather than struggle against fate.” Id. Therefore, given the historical and emotional impact that tattooing shares with other fully protected art forms, this Court should find that tattoos are pure speech. b.

Tattoos are a type of painting fully shielded by the First Amendment

Malone’s tattoos are virtually identical to paintings, which are fully protected by the First Amendment. See Hurley, 515 U.S. at 569 (recognizing that the paintings of Jackson Pollock are “unquestionably shielded” by the First Amendment). While tattoos are “engrafted onto a person’s skin rather than drawn on paper,” this distinction should not affect the level of protection accorded to tattoos. Anderson, 621 F.3d at 1061. Under such a distinction, the full protections accorded to Malone’s tattoo sketches would vanish when transferred to a human surface. To be sure, unlike pen-and-ink drawings, tattooing implicates particular health concerns. Id. However, these concerns may be appropriately addressed through reasonable regulations, rather than an outright denial of constitutional protections. Id. Therefore, this Court should find that tattoos are art protected as pure speech.

6

2.

Since Tattoos Are Pure Speech, the Process of Their Creation Is also Protected as Pure Speech Because the Process and Product Are Indivisible

In light of the conclusion that tattoos are pure speech, this Court should extend the full protection accorded to tattoos themselves to the process of tattooing. Just as Van Gogh’s brush strokes created the “Starry Night,” Malone’s needling is necessary to conceive every koi. Indeed, the entire purpose of tattooing is to create a tattoo, which itself is purely expressive art. Accordingly, the process of tattooing is more like writing than conduct that includes an expressive component, such as burning a draft card. See United States v. O’Brien, 391 U.S. 367, 376 (2002). This Court should expressly enact the fundamental principle that the process of creating pure speech and the final product are inseparable. Absent this premise, the First Amendment would be disarmed, rendering a host of protected speech vulnerable to attack. For example, the full protection accorded to Picasso’s paintings would be a pyrrhic victory if overzealous state agents could proscribe his brush strokes with marginal justification. Similarly, the protections accorded to Malone’s award-winning tattoos are only as valuable as those accorded to the creative process. To be sure, the interconnectedness between the process of creating speech and the end product is firmly embedded within this Court’s jurisprudence. In Minneapolis Star, this Court struck down a special tax on ink and paper directed at newspapers, finding that the tax “would have troubled the Framers of the First Amendment” because it infringed upon the guarantee of freedom of the press. 460 U.S. at 583. Minneapolis Star demonstrates this Court’s recognition that the instruments used to create pure speech deserve protection as an integral part of the speech itself. Accordingly, this Court should

7

find that Malone’s tattooing is pure speech, sending the resounding message that the First Amendment cannot be circumvented by stripping the dynamic art of tattooing down to the bare act of “inject[ing] . . . dye into the recipient’s skin.” See Yurkew v. Sinclair, 495 F.Supp. 1248, 1252 (D. Minn. 1980). Moreover, in Ward v. Rock Against Racism this Court found that the mixing of sound is artistic expression integral to the music produced. 491 U.S. at 792-93. Accordingly, “[a]ny governmental attempt to serve purely esthetic goals by imposing subjective standards of acceptable sound mix on performers would raise serious First Amendment concerns . . . .” Id. at 793. This demonstrates that the protections accorded to music would be eviscerated absent protection for the process of creating sound. Likewise, safeguarding Malone’s tattoos, but not his creative process, is akin to protecting discourse in a land of mutes. Recognizing this danger, several courts – including the Seventh and Ninth Circuits – have pronounced that the First Amendment must apply equally to the process of creating pure speech and the final product. See Am. Civil Liberties Union of Illinois v. Alvarez, 679 F.3d 583, 596 (7th Cir. 2012), cert. denied, 133 S. Ct. 651 (2012) (finding that since the First Amendment protects audio recordings, it “necessarily” protects “the act of making an audio or audiovisual recording . . .”); Anderson, 621 F.3d at 1062. Otherwise, by failing to protect the process of creating pure speech “the State could effectively control or suppress speech by the simple expedient of restricting an early step in the speech process rather than the end result.” Alvarez, 679 F.3d at 597. This would invite veiled animus into the First Amendment, facially protecting tattoos, but substantively permitting a de facto ban through overregulation of tattooing.

8

Notably, although tattooing is analogous to other forms of pure speech, such as music and painting, it is distinct to the extent that tattooing necessarily results in the creation of a tattoo, which is always purely expressive. Anderson, 621 F.3d at 1062. Conversely, the splattering of paint does not always create a painting; although Jackson Pollock’s splatterings would be protected as pure speech because they create a fully protected painting, the splattering of paint in a fit of anger would not warrant First Amendment protection. However, because the tattooing process inevitably results in the creation of pure speech, this Court should extend full First Amendment protection to the process of tattooing.2 B.

Malone’s Tattooing Process in Itself Is Pure Speech Even beyond the fact that the process of tattooing merits protection as pure speech

because it is inseparable from the resulting tattoo, the process of tattooing in itself is so pregnant with expression that it should be protected as pure speech under the First Amendment. See Anderson, 621 F.3d at 1062. Like painting, tattooing is a dynamic process that must not be mischaracterized as the mere “injection of a needle into the skin.” Yurkew, 495 F.Supp. at 1252. Such a characterization is akin to reducing Michelangelo’s sculpting of the David down to “the cutting of stone,” or the composition

                                                                                                                2 Further, this Court need not engage in any subjective inquiries evaluating the expressiveness of each tattoo in order to conclude that its creation is pure speech. Unlike “the crafts of the jeweler, the potter and the silversmith[, which] may at times have expressive content, paintings, photographs, prints and sculptures . . . always communicate some idea or concept to those who view it, and as such are entitled to full First Amendment protection.” Bery v. City of New York, 97 F.3d 689, 696 (2d Cir. 1996). Just like these visual arts forms, tattoos are always richly expressive and thereby necessitate full First Amendment protection along with the tattooing process. 9

of Beethoven’s Ninth Symphony to “the blotting of ink on horizontal lines.” This analysis misses the mark entirely, neglecting the expression inherent in Malone’s artistry. In masterful form and with signature style, Malone conceptualizes and creates detailed murals upon the contours of the human back. Not only does Malone create such renowned tattoos by hand, without the aid of pattern or device, but he also handcrafts needles tailored to the unique specifications of each tattoo. DR at 4, 7. He must tattoo with complete focus, listening for the “rhythmical sound” of “‘sha, sha, sha’ that the needle makes as it rises from the skin.” Traditional Japanese Tattooing. Don Ed Hardy, a tattoo artist who, like Malone, was an apprentice under Horihide, explains that “[b]y developing hand/eye coordination and learning to trust our intuition, we can aim at a state of transmission and transcendence which gives physical form to subtle forces . . . .” DON ED HARDY, TATTOOING THE INVISIBLE MAN: BODIES OF WORK 10 (2000). Additionally, Malone’s process of tattooing should be protected as pure speech because Malone contributes his artistic vision to each tattoo he creates. If the tattoo artist were a mere conduit performing a mechanical function, then Malone would be as fungible as a cog in a wheel, or a speaker on a sound truck. If this were the case, then every tattoo artist would be capable of tattooing Malone’s signature koi fish with the same expertise and intricate coloration, creating not just “a pretty picture,” but an image “with a life of its own.” Kazuo Oguri (“Horihide”), My Apprenticeship, in TATTOO HISTORY: A SOURCE BOOK 82, 83 (Steve Gilbert, ed., 2000). In actuality, “[i]f a customer asked ten tattoo artists to tattoo a fish on his back, then the customer would have an image as diverse as ocean life itself.” AR at 33.

10

Furthermore, Malone’s tattooing does not lose First Amendment protection when he allows recipients to offer input regarding their tattoos. In Hurley, this Court recognized that collaboration does not deprive an activity of First Amendment protection, holding that the speech protections accorded to an individual are not diminished when combined with the messages of other individuals marching in a parade. Hurley, 515 U.S. at 569-70. Additionally, though Malone works with his clients, his artistic voice resounds in the resulting tattoos. Unlike a line chef making food to order, Malone is never bound by the particular request of a recipient. For example, Malone refuses to tattoo images, such as Chinese characters, that do not further his artistic vision. DR at 4. Further, Malone always retains the right to select the style and coloring of each tattoo. Id. Also, like any true artist, Malone signs each work. Id. In these ways, Malone’s tattooing is comparable to the expression of commissioned artists like Michelangelo, whose painting of the Sistine Chapel is undeniably protected as pure speech despite his collaboration with Pope Julius, II. Anderson, 621 F.3d at 1062. Moreover, artistic expression need not be original to garner First Amendment protection. Hurley, 515 U.S. at 558. On the rare occasions that Malone creates stencil tattoos, he nevertheless maintains artistic discretion regarding the design, coloring, and style of the tattoo. Just as a newspaper engages in speech when it selects the “material . . . and limitations on the size and content” of pieces contributed by third parties, so also should Malone’s artistic choices in applying stencils be considered expression. Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241, 258 (1974). Therefore, “[u]nlike [a] sound truck . . . the process of tattooing does not merely amplify and distribute pure speech; it creates pure speech.” Coleman v. City of Mesa,

11

265 P.3d 422, 431 (Ariz. Ct. App. 2011), reasoning affirmed, but decision vacated, 284 P.3d 863 (2012). Every movement of the needle is a permanent mark that the artist must execute with absolute commitment – each motion is a part of the final product, and will endure on the human body through life and death. Just as parades are “a form of expression [and] not just motion,” the tattooing process is purely expressive activity that transcends “the injection of a needle into the skin.” Hurley, 515 U.S. at 568; Yurkew, 495 F.Supp. at 1252. Thus, deconstructing the complex artistic process of tattooing down to a bare act would forfeit the fabric of the First Amendment in favor of the thread. II.

EVEN IF MALONE’S TATTOOING IS NOT PURE SPEECH, THIS COURT SHOULD FIND IT TO BE EXPRESSIVE CONDUCT Should this Court determine that Malone’s tattooing is not pure speech, tattooing

nevertheless merits First Amendment protection as expressive conduct. This Court unanimously stated “the Constitution looks beyond written or spoken words as mediums of expression” in identifying protected speech. Hurley, 515 U.S. at 569. Tellingly, this Court found that the expressive acts of wearing armbands, nude dancing, sitting in silence, and affixing a peace sign to a flag all fell within the First Amendment’s safe harbor. Johnson, 491 U.S. at 404 (citing cases). Similarly, Malone’s tattooing should be protected as expressive conduct because his artistic actions are “sufficiently imbued with elements of communication.” Spence v. Washington, 418 U.S. 405, 409 (1974). In Spence, a college student affixed a peace symbol to the American flag just days after the Kent State killings and displayed it in his dorm room window. Id. at 408. This Court found that both the creation and display of the flag constituted expressive conduct because the student had “[a]n intent to convey a

12

particularized message . . . and in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it.” Id. at 405-06, 410-11. Just as Spence intended to communicate a message by taping a peace sign to a flag, Malone intends to express his artistic vision by inscribing his artwork on human skin. See id. at 408. Additionally, Malone’s artistic message is understood in light of his signature style and award-winning expression, similar to the clarity of Spence’s conduct in light of the Kent State killings. Therefore, this Court should conclude that Malone’s tattooing is expressive conduct protected by the First Amendment. A.

Malone Intends to Communicate a Particularized Message with Each Tattoo On every occasion that Malone applies his handcrafted needles and ink to skin, he

has the overwhelming intention to communicate his artistic message. Malone’s communication need not be a “narrow, succinctly articulable message” to qualify as “particularized.” Hurley, 515 U.S. at 569. Accordingly, whether Malone inscribes the First Amendment, his signature koi, or even a stencil of a popular symbol, this Court should protect his tattooing as expressive conduct. Furthermore, because tattoos do not have any utility aside from expression, Malone necessarily intends to fulfill an expressive purpose with every tattoo. Additionally, for the same reasons that the act of tattooing is so imbued with artistic expression that it merits protection as pure speech, this Court should find that Malone intends to convey an artistic message. Malone demonstrates his intention to communicate a message by retaining full creative license over each inked image. DR at 4. This is most evident when he crafts his signature tattoos, since they require careful planning and expert execution. Id. Furthermore, Malone’s intent to communicate a

13

message is not diminished through the use of stencils or in collaborating with a client. In either case, Malone conveys his unique artistic message in selecting the style and coloring of the tattoo. See id. Therefore, Malone intends to communicate a particularized message when he incises his illustrations on skin, satisfying the first prong of the Spence test for expressive conduct. B.

The Circumstances Surrounding Malone’s Tattooing Demonstrate a Great Likelihood that an Observer Would Understand Malone’s Message Malone also meets the second prong of the Spence test for expressive conduct

because the “surrounding circumstances” make it surpassingly likely that his artistic “message would be understood” by his clients, apprentices, and the general public. Spence, 418 U.S. at 405-06. This message need not be a narrow, succinct thought, but can communicate on an aesthetic or emotive level. Cf. Red Lion Broad. Co. v. FCC, 395 U.S. 367, 390 (1969) (stating First Amendment protections apply to “social, political, esthetic [or] moral” expressions); Cohen, 403 U.S. at 26. Malone’s clients are especially likely to understand the artistic message expressed in his tattoos. Although they may not be able to precisely articulate his artistic vision, which “transcend[s] language limitations,” his clients nevertheless understand that his tattoos are rich with artistic expression. See Bery, 97 F.3d at 695. This is illustrated by the great efforts that clients will make in order to be inked by a particular artist. See, e.g., Dying Art of Hand Tattoo (describing an individual who “spent hundreds of dollars, traveled thousands of miles and waited more than three decades for a session with Horihide”). Malone has garnered wide acclaim for his award-winning “vivid full back tattoos,” attracting customers from twenty miles away to be inscribed with his mastery.

14

DR at 4-5. The magnetic quality of Malone’s artistry demonstrates his clients’ understanding of his communicative message. Beyond Malone’s clientele, any reasonable observer of Malone’s tattooing would also understand his artistic message. Examining “the nature of [the] activity, combined with the factual context and environment in which it was undertaken,” an observer would understand that Malone is conveying a message, given that tattooing is a popular medium of expression. See Spence, 418 U.S. at 410-11; Samantha Braverman, One in Five U.S. Adults Now Has a Tattoo, HARRISINTERACTIVE.COM (Feb. 23, 2012), http://www.harrisinteractive.com/NewsRoom/HarrisPolls/tabid/447/mid/1508/articleId/9 70/ctl/ReadCustom%20Default/Default.aspx (publishing a 2012 poll which reveals that twenty percent of American adults have a tattoo). Furthermore, Malone applies this inherently expressive medium in a studio acclaimed for producing tattoos prized for their aesthetic qualities and often duplicated by others. DR at 4; AR at 41 (Hopewell, J., dissenting). He has created these images for over thirty years, having received a Bachelor of Fine Arts in printmaking and having apprenticed under the world-famous Horihide. DR at 3. Also, he creates many of his tattoos with the unique Japanese classical freehand method and attaches his personal sign of “NM” to the artwork. Id. at 4. Thus, any observer would recognize Malone as an artist at work while tattooing. Additionally, because tattooing is an acclaimed medium of artistic expression, observers would understand Malone’s artistic message, operating on an emotional level. In conclusion, Malone’s tattooing satisfies the Spence test for expressive conduct because he intends to communicate a message when he creates his art and that message is

15

likely to be understood by an observer, especially his own clients. Tellingly, in this Court’s application of Spence within Texas v. Johnson, it stated that Spence engaged in expressive conduct while “taping . . . a peace sign to an American flag.” Johnson, 491 U.S. at 415. Similarly, Malone’s creation of communicative images is just as expressive as their public display. III.

THIS COURT SHOULD FIND THAT THE PETITIONERS IMPERMISSIBLY BURDEN MALONE’S SPEECH BY IMPOSING MEDICAL REQUIREMENTS ON HIS ARTISTIC EXPRESSION Whether this Court finds Malone’s tattooing to be pure speech or expressive

conduct, the Petitioners’ Ordinance fails to satisfy the standards set forth by this Court to temper restrictions on speech. As pure speech, Malone’s tattooing may only be regulated through reasonable content-neutral “restrictions on the time, place, or manner of” his expression. Ward, 491 U.S. at 791. Whereas, if Malone’s tattooing is considered expressive conduct, it may only be regulated if the Petitioners satisfy the level of intermediate scrutiny defined in United States v. O’Brien. 391 U.S. at 377. As this Court clarified in Clark v. Cmty. for Creative Non-Violence, the O’Brien standard of review “is little, if any, different from the standard applied to time, place, or manner restrictions.” Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 298 (1984). Under both standards, the regulation must be narrowly tailored to the asserted government interest to avoid “burden[ing] substantially more speech than is necessary to further the government's legitimate interests.” Ward, 491 U.S. at 799. Additionally, the reasonable time, place, or manner test applied to pure speech requires that the Petitioners leave open ample alternative avenues of communication. Id. at 791. In view of the narrow tailoring requirement shared by both standards, the Ordinance fails to further any

16

government interest. Furthermore, as pure speech, Malone’s unique tattooing is denied any alternative modes of expression. With Malone’s right to exercise his artistic vision hanging in the balance, this Court should find that his tattooing process is speech that the Petitioners impermissibly suppress. A.

The Petitioners’ Mandate that Malone Employ a Full-Time Physician or Obtain a Medical Degree Is Not Narrowly Tailored to Further Any Government Interest The Petitioners’ Ordinance is a millstone drowning Malone’s artistic expression.

In scrutinizing the Petitioners’ actions under the narrowly tailored analysis, Malone’s tattooing “must be assessed . . . by standards suited to it, for each [medium of expression] may present its own problems.” Se. Promotions, Ltd. v. Conrad, 420 U.S. 546, 557 (1975). Thus, the Ordinance must be examined in light of the actual risks associated with tattooing; the mere fear of blood-borne diseases is not enough to overcome Malone’s First Amendment protections. Cf. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 508 (1969) (stating an “undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression”). The Petitioners’ alarmist cries of “Disease!” and “Epidemic!” do not “fairly support the municipality's rationale for its ordinance” because Malone’s tattooing does not endanger public health and the Ordinance smothers a popular medium of speech. See City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 438 (2002). Therefore, the Petitioners fail to meet the narrow tailoring requirement under both the O’Brien and reasonable time, place, or manner tests. 1.

Tattooing Is a Widely Practiced Medium of Expression that the Petitioners Substantially Burden

17

Tattooing is a significant mode of expression stifled by the Ordinance. Over the past fifty years, tattooing has experienced a crescendo in popularity, transitioning from “an anti-social activity in the 1960s to that of a trendy fashion statement in the 1990s.” Commonwealth v. Meuse, 10 Mass. L. Rptr. 661, 664 (Mass. Super. Ct. 1999). It is now a governmentally-recognized art form that continues to gain popularity in the Millennial generation. Id.; Portrait of the Millennials, PEWRESEARCH.ORG (March 11, 2010), http://www.pewresearch.org/2010/03/11/portrait-of-the-millennials/ (stating that 38% of the individuals in the Millennial generation have a tattoo). The Petitioners’ denial of Malone’s special permit application significantly mutes this method of artistic expression. Tattoo artists that do not possess a special permit must obtain a medical license or hire a full-time physician, either of which would impose significant financial costs. DR at 6. Taking each in turn, Malone does not hold a medical license, as his education focused on art, and included extensive health and safety training. DR at 3, 7. Additionally, hiring a full-time physician could impose even greater burdens than are facially apparent. For instance, other states have interpreted language similar to the Ordinance to mandate a physician to be physically present for every tattooing session. See Beckerman v. City of Fort Lauderdale, 423 So. 2d 925, 926 (Fla. Dist. Ct. App. 1982). Given that Malone employs multiple apprentices who may tattoo concurrently with him, such an interpretation would require him to hire several physicians, thereby multiplying the already exorbitant costs. Therefore, the Petitioners’ actions greatly restrict Malone’s artistic expression. 2.

The Petitioners’ Ordinance Fails to Meaningfully Further Any Interest in Preserving Public Health

18

As courts have long observed, “tattooing is a safe procedure if performed under appropriate sterilized conditions.” Yurkew, 495 F. Supp. at 1252. See also Anderson, 621 F.3d. at 1056; State ex rel.Crabtree v. Franklin Cnty. Bd. of Health, 673 N.E.2d 1281, 1284 (Ohio 1997). However, clients who are unable to be tattooed in a professional studio due to over-zealous regulation, such as the instant Ordinance, may insist on being tattooed in a secretive, non-sterile environment. Crabtree, 673 N.E.2d at 1284. Therefore, this Ordinance may actually contribute to an increase in the spread of blood-borne diseases, rather than serve its purported interest. Moreover, though tattooing may theoretically spread blood-borne diseases, the Center for Disease Control and Prevention determined that receiving a tattoo in a licensed, commercial facility has never been linked to the transmission of Hepatitis C. Hepatitis C FAQs for the Public, CDC.GOV (Oct. 22, 2012), http://www.cdc.gov/hepatitis /c/cfaq.htm. In addition, tattooing, whether in a professional studio or elsewhere, has never been a known mechanism of transmitting HIV. See Crabtree, 673 N.E.2d at 1284; Diagnoses of HIV Infection and AIDS in the United States and Dependent Areas, 2010, CDC.GOV

(Feb. 28, 2012), http://www.cdc.gov/hiv/surveillance/resources /reports/

2010report/index.htm. Further, the Petitioners have failed to provide any evidence demonstrating that blood-borne diseases were ever contracted or spread within Magnolia Hills. DR at 5. Nor have they demonstrated that, in all of Oaklandia, tattooing caused a single incidence of Hepatitis B or C during the 2007 outbreak or otherwise. Id. In fact, the minimal risks posed by tattooing are unsurprising in light of the business interests of tattoo artists, such as Malone. Sterile conditions instill public confidence in the safety of tattooing, generating goodwill and increasing demand. Just as

19

the regulation banning lawn signs in City of Ladue v. Gilleo was overly repressive because property owners are naturally inclined to preserve their property value, so too does the Petitioners’ Ordinance ignore Malone’s self-motivation to maintain safe conditions. See City of Ladue v. Gilleo, 512 U.S. 43, 58 (1994). In addition to his self-motivation, Malone’s pristine safety record demonstrates the miniscule danger his tattooing poses to public safety. For more than three decades, Malone has been a beacon of health and safety; there has never been a single known transmission of any blood-borne disease linked to Kofun Tattoos. DR at 7. Additionally, Malone received three years of safety training while apprenticing with Horihide and never re-uses a handcrafted needle. Id. All of these factors demonstrate that Malone practices an exceptionally safe method of tattooing, which has only a theoretical possibility of transmitting disease. 3.

Given that the Petitioners Burden a Substantial Amount of Speech Without Promoting Public Health, the Ordinance Is Not Narrowly Tailored to Further Any Government Interest

Even if the Ordinance marginally advances the Petitioners’ interest in public safety, it will only withstand intermediate scrutiny if the burdens it imposes on speech are similarly inconsequential. Ward, 491 U.S. at 799. However, since tattooing is a widely practiced medium of artistic expression, the Ordinance is not narrowly tailored to the Petitioners’ interest. As this Court has previously stated, “[b]road prophylactic rules in the area of free expression are suspect. Precision of regulation must be the touchstone.” NAACP v. Button, 371 U.S. 415, 438 (1963). Rather than requiring Malone to hire a costly full-time physician at his studio, the Petitioners could instead follow the examples of other more

20

tempered governmental regulations of tattooing. For instance, the Petitioners could require Malone to complete an initial training and continuing education program overseen by the Occupational Safety and Health Administration. See CAL. HEALTH & SAFETY CODE §§ 119300-119328 (Supp. 2012). Additionally, the Petitioners could create specific safety regulations for the handling of needles, imposing criminal penalties for any violations. See KAN. STAT. ANN. §§ 65-1940-1955 (2009 & Supp. 2011). However, instead of directly addressing the dangers of blood-borne diseases, the Petitioners have broadly burdened Malone’s freedom of speech. This overregulation is akin to a flat ban on theatrical performances based on potential fire hazards posed by lighting units. See Carly Strocker, 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, 201 (2011) [hereinafter These Tats Are Made for Talking]. Therefore, the Petitioners have substantially burdened a popular medium of expression in a manner that is not narrowly tailored to further public safety. B.

The Ordinance Fails to Provide Ample Alternative Channels of Communication Even if this Court finds the Ordinance to be narrowly tailored, the regulation

nevertheless fails as a reasonable time, place, or manner regulation of pure speech because it does not provide ample alternative channels for Malone’s tattooing. First, tattooing is a unique form of communication that cannot be substituted. Second, the availability of protected speech in a nearby location does not suffice as an alternative channel of communication. Third, the medical licensing requirement functions as a de facto ban on tattooing, depriving Malone and other tattoo artists of any opportunity to practice tattooing in Magnolia Hills.

21

To begin, the Ordinance fails to provide ample alternative channels of communication because tattoos are a unique medium of expression that cannot be replaced by any other art form. In City of Ladue, this Court struck down a ban on lawn signs, finding them to be a unique form of communication. 512 U.S. at 56. In particular, the choice to place a sign in front of one’s private home in itself conveys the strength of the speaker’s message; no matter the date or time, neighbors and passersby will associate the sign’s message with the homeowner. Id. Similarly, tattoos effectively render the wearer a human lawn sign. Cf. Wooley v. Maynard, 430 U.S. 705, 715 (1977) (finding that license plates may function like a “mobile billboard”). The tattoo travels with speakers everywhere they go. It is not merely associated with them – it is a part of them. Indeed, the permanency of tattoos demonstrates a message that cannot be replicated by any other means, such as body paint. The choice to have an image indelibly attached to one’s body, including the choice to endure physical pain through the process, demonstrate the strength of the speaker’s message in a way that soluble paint cannot. These Tats Are Made for Talking, at 193. Furthermore, the freehand style of tattooing utilized by Malone is a unique medium of expression unto itself since freehand tattooing is a dying art form as a result of tattoo bans in Japan. Dying Art of Hand Tattoo. The Petitioners’ denial of Malone’s permit application therefore effectively threatens the viability of this unique medium of expression altogether. Second, the requirement that Malone have a medical license to create art divests Malone of any practical opportunity to tattoo in Magnolia Hills. Just as a plastic surgeon studies medicine and not aesthetics, an artist studies art rather than medicine. AR at 36. Additionally, although the Ordinance would allow Malone to tattoo under the watchful

22

eye of a medical professional, this requirement is equally unrealistic. As noted above, this mandate imposes exorbitant medical costs upon Malone without any palpable benefit, considering that Malone has more than demonstrated his ability to observe health and safety standards. Thus, the Ordinance fails to provide Malone with an alternative channel of practicing tattooing because the statute does not provide any viable opportunity to tattoo. See Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 525-27 (1981) (examining the “practical effect” of an ordinance to determine whether it infringes upon First Amendment guarantees). Finally, although the Petitioners might argue that there are a number of other towns in which Malone could tattoo, the time, place, or manner test focuses on the actions of a government entity in regulating speech within its own borders. Malone’s potential ability to practice tattooing in neighboring localities does not constitute an alternative channel of communication under the Constitution. In Schad v. Borough of Mount Ephraim, this Court emphasized that “‘one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place.’” 452 U.S. 61, 76-77 (1981) (quoting Schneider v. State, 308 U.S. 147, 163 (1939)). This precedent makes clear that the Petitioners may not rely on the availability of tattooing in other municipalities in creating reasonable regulations. Thus, the Petitioners’ Ordinance fails intermediate scrutiny under both the reasonable time, place, or manner test for pure speech and the O’Brien test for expressive conduct. Scientific studies, historical data, and judicial findings all demonstrate that the particular public health dangers posed by tattooing in professional studios are exceedingly low. Requiring Malone, who has a pristine thirty-year safety record, to pay

23

for a full-time physician or obtain a medical degree is not narrowly tailored to further the Petitioners’ interest in public safety. Additionally, the Ordinance operates as a medium ban on a unique form of expression. This flagrant overregulation raises suspicions regarding the veracity of the Petitioners’ claim that public health concerns are the actual justification for the Ordinance. IV.

IN THE EVENT THIS COURT FINDS THAT MALONE’S TATTOOING IS VOID OF EXPRESSION, IT SHOULD CONCLUDE THAT THE PETITIONERS’ ILLEGAL ACTIONS FAIL TO FURTHER ANY LEGITIMATE GOVERNMENT INTEREST Should this Court find Malone’s tattooing to be mere conduct, bereft of any

expressive component, the Petitioners’ denial of his special permit should nonetheless be reversed. Regulations of mere conduct are only constitutional if they are rationally related to a legitimate government interest. City of Cleburne, Texas v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985). However, when the state action is motivated by animus towards a particular individual or group, it will be struck down. Dep’t of Agric. v. Moreno, 413 U.S. 528, 534 (1973). Here, this Court should find that the Petitioners’ denial of Malone’s permit is an exercise of animus towards tattoo artists. Mayor Merryweather successfully advocated support for the Ordinance at issue, stating that it must be passed to rid the City of Magnolia of tattoo artists and referring to them as “these people practicing dangerous and antisocial activities.” DR at 5. Additionally, animus towards tattoo artists is evidenced by the fact that the City of Magnolia is devoid of any tattoo studios, despite its desirable location for such businesses. See id. Finally, requiring Malone to employ a full-time doctor in order to practice his art, despite his impeccable safety record, is not rationally

24

related to the alleged state interest in public health. Rather, the Petitioners use the guise of regulation to effectively ban an entire medium of speech. See Golden v. McCarty, 337 So. 2d 388, 391-92 (Fla. 1976) (Sundberg, J., dissenting). V.

CONCLUSION For the foregoing reasons, the decision of the United States Court of Appeals for

the Thirteenth Circuit should be affirmed.

Respectfully submitted,

________________________ Team R Counsel to the Respondent

25