The City of Delray Beach, Florida decided that it didn’t like “that kind of thing.” So, they took a page out of the moral-crusader textbook — formerly only used to ban adult bookstores and strip clubs — and informed tattoo artists that they are just not welcome in their Quiet Little Beach Community. Ordinance No. 33-16 places a number of unconstitutional limits on these businesses.
WHEREAS, there is NOTHING TO SEE HERE
The first sign that an ordinance is unconstitutional? When its City Attorney thinks it is so constitutionally suspect that they feel the need to pack its introduction with a whole bunch of clauses that start with “WHEREAS” and then finish with “nope, we’re not violating the First Amendment, we swear!”
WHEREAS, the City wishes to regulate the location of tattoo establishments consistent with the public interest and the health, safety and welfare of the community and consistent with the constitutional protections provided to speech and expression; and
You see that? That’s when your bullshit detector needs to wake up from sleep mode. What this usually means is “to hell with the First Amendment, we don’t like ‘that kind of thing’ around here.”
Keep your bullshit detector on… because there’s more
WHEREAS, the City has a reasonable basis to believe that there are land use compatibility issues related to the siting of tattoo establishments and their customers near churches and schools, and that it is in the public interest therefor to buffer tattoo establishments from churches and schools; and
Really? So there’s nothing to see here, but we think that tattoo studios can’t co-exist with schools and … churches?
WHEREAS, the City has undertaken to investigate and study the secondary impacts of tattoo establishments and has learned that tattoos and tattoo establishments are associated with gangs, who are also related to criminal activities including illegal drugs and violence; and
Clearly the idiot that wrote this is not as dumb as you might think. At least someone once told them about the “adverse secondary effects doctrine” – and they even think they know what it means. By the end of this poast, you’ll probably understand more of it than the author(s) of this ordinance.
Ready for the coup de grace? Here it is, with subtitles:
WHEREAS, the City does not intend to suppress or infringe upon any expressive activities protected by the First Amendment of the U.S. Constitution, but instead desires to enact reasonable time, place, and manner regulations that address the adverse effects of tattoo establishments.
This is the legislative equivalent of “I’m not racist, BUT….” Is anything after the conjunction going to be non-racist? Probably not. Or, frankly, we don’t even need an analogy. When someone says “I support the First Amendment, BUT…” then everything before the conjunction is most definitely just noise without meaning. When the government passes a law and then feels like it has to tell you that it is not trying to fuck with the First Amendment, the law is definitely fucking with the First Amendment. Otherwise, why the fuck would you put that there? Hey, didn’t mean to grab you by the pussy, but here your pussy is, in my hand…
The Adverse Secondary Effects Doctrine
You don’t have the attention span for a poast that has a full class on this. So, let me just sum it up for you. Back in the 70s, blue-balled fuckhead politicians got sticks up their asses about adult bookstores and adult theaters. They didn’t like “that kind of thing.” So, they passed laws against them. But, the First Amendment got in the way. In fact, it was so goddamned clearly against the First Amendment that you had judges really in a bind. Do we just tear up the First Amendment because we’re scared of pictures of tits? If not, how do we stop consenting adults from selling pictures of tits in our fair community?
Quite the conundrum, eh?
Enter the adverse secondary effects doctrine. With this magic wand, you can say “we don’t approve of this kind of speech,” as long as you lie and say “but, we’re not trying to get rid of that kind of speech, we’re trying to combat its adverse secondary effects”
That means, you can ban strip clubs if you’re doing so to ban the crime and blight that come along with them. See Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976). And all of a sudden, poof! the regulation is no longer content-based! Magic! After all, adult bookstores and strip clubs tended to be in bad neighborhoods in those days. Thus, the logic is was “because these kinds of places are in bad neighborhoods, they must cause the problems in the bad neighborhoods.” See also City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47–48 (1986) (reaffirming the doctrine as a content-neutral doctrine).
Then, First Amendment lawyers said “hey, you can’t just say that this causes problems. You need to prove it.” So, the cities and towns trying to pull this crap had to show that they were basing their ordinances on more than just “I saw it in a movie” or “we hypothetically think that this will solve these problems.” The burden isn’t super high, but it has to be at least somewhat factually based. City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002). In that case, the court got all fragmented, with some justices calling bullshit on the content-neutrality of these ordinances. Nevertheless, all nine justices agreed that intermediate scrutiny applied if an ordinance was aimed at adverse secondary effects, and not just at the content. There’s some burden shifting, and really interesting fact-based inquiries, and the deck is definitely stacked in favor of the municipalities. But, thanks in large part to many of the veterans in the First Amendment Lawyers’ Association, the city can’t base their views on complete junk science.
But, to date, there has not yet been a case that upheld the adverse secondary effects doctrine in a case that didn’t involve pearl-clutching over sexually explicit conduct. That said, it hasn’t come right out and rejected using it outside of the “eek, tits and cocks!” realm either. See, e.g., R.A.V. v. City of St. Paul, 505 U.S. 377, 394–95 n.7 (1992); Boos v. Barry, 485 U.S. 312, 320–21 (1988).
Apply it, yo
First off, Tattoo artistry is First Amendment protected. See Anderson v. City of Hermosa Beach, 621 F.3d 1051, 1055 (9th Cir. 2010). A few years later, the 11th Circuit (which controls in Delray Beach) held the same. See Buehrle v. City of Key W., 813 F.3d 973 (11th Cir. 2015)
In that case, the Conch Republic tried to ban tattoo studios because they thought it would be bad for the town’s character, and bad for tourism. The 11th Circuit called bunk ass on that.
A regulation limiting the creation of art curtails expression as effectively as a regulation limiting its display. The government need not ban a protected activity such as the exhibition of art if it can simply proceed upstream and dam the source. Consistent wit the Supreme Court's teaching, the right to display a tattoo loses meaning if the government can freely restrict the right to obtain a tattoo in the first place. (Id. at 977)
The 11th Circuit said that it wouldn’t just take the City’s word for it that the ordinance served some important interests. It needed a “reasonable basis” for believing that. Id. citing Zibtluda, LLC v. Gwinnett Cty. ex rel. Bd. of Comm'rs, 411 F.3d 1278, 1286 (11th Cir. 2005). And, harkening to my statement earlier that the deck is pretty stacked for the municipality.
This burden is not a rigorous one. Id. But a municipality cannot "get away with shoddy data or reasoning." City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 438, 122 S. Ct. 1728, 152 L. Ed. 2d 670 (2002) (plurality opinion). It "must rely on at least some pre- enactment evidence" that the regulation would serve its asserted interests. Peek-A-Boo Lounge of Bradenton, Inc. v. Manatee Cty., 337 F.3d 1251, 1268 (11th Cir. 2003); see also Zibtluda, 411 F.3d at 1286 ("Nevertheless, [the enacting body] must cite to some meaningful indication—in the language of the code or in the record of legislative proceedings—that the legislature's purpose in enacting the challenged statute was a concern over secondary effects rather than merely opposition to proscribed expression.") (alteration in original) (quoting Ranch House, Inc. v. Amerson, 238 F.3d 1273, 1283 (11th Cir. 2001)). Such evidence can include anything "reasonably believed to be relevant— including a municipality's own findings, evidence gathered by other localities, or evidence described in a judicial opinion." Peek-A-Boo Lounge, 337 F.3d at 1268 (internal quotation marks omitted).
The city was required to make at least some investigation and make some findings. “"[T]he government bears the burden of showing that the articulated concern has more than merely speculative factual grounds." Flanigan's Enters., Inc. v. Fulton Cty., 242 F.3d 976, 986 (11th Cir. 2001)."
The City of Key West totally flopped.
The City conducted no investigation and made no findings. It relied upon no expert testimony, findings made by other municipalities, or evidence described in judicial decisions. It failed to muster even anecdotal evidence supporting its claims. The closest the City came to presenting evidence on the impact on tourism was a passing reference to a few lines of a Jimmy Buffett song. And we are unsure whether even that reference fully supports its position.
But, what about in Delray? Did they learn nothing?
No, they learned a little. They learned that the ordinance is only a justifiable burden on expression if there is actual evidence showing that there are problems that the ordinance will favorably address. So, there must be a demonstration of actual secondary effects, and those effects must be remediated by the ordinance. See Young; Renton. The existence of the effects must be shown through both competent and substantial evidence. Krueger v. City of Pensacola, 759 F.2d 851 (11th Cir. 1985); Leverett v. City of Pinellas Park, 775 F.2d 1536 (11th Cir. 1985); Basiardanes v. City of Galveston, 682 F.2d 1203 (5th Cir. 1982).
So what are the secondary effects that this ordinance supposedly tackles? “Drug overdoses” and “gang activity.”
Cue the laugh track, because someone has been watching Sons of Anarchy too much… and "But I saw this on SOA" isn't going to fly at the 11th Circuit. Even if the laughable cultural miscues weren't bullshit, the remedies for these problems don't even come close to hitting the wall where they hang the dart board, much less anywhere near the bullseye.
How in the holy fuck does putting a tattoo studio more than 750 feet from another, as the crow flies, address that problem? How about being more than 300 feet from a church? Are you going to overdose on oxycontin if you go to church and then pass a tattoo studio? Putting tattoo studios out of sight? How does that help anything.
Even if all of this did help, wouldn’t there be ways to remedy these problems without burdening expression? How about “you can’t do heroin in a tattoo studio?”
The fact is, someone involved in drafting this ordinance read the Key West case, and thought that a few rote recitations and throwing a couple of bullshit references into the record would be enough to save the statute. It isn’t. And, I can’t wait to see Delray Beach get a whopper of an attorneys’ fees bill when it gets sued over this ordinance.
Marc Randazza is the national president of the First Amendment Lawyers Association
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