              Case: 14-15354     Date Filed: 12/29/2015    Page: 1 of 14


                                                                           [PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                  No. 14-15354
                            ________________________

                       D.C. Docket No. 4:13-cv-10103-JEM



BRAD BUEHRLE,

                                                                   Plaintiff-Appellee,

                                         versus

CITY OF KEY WEST,

                                                                Defendant-Appellant.

                            ________________________

                    Appeal from the United States District Court
                        for the Southern District of Florida
                          ________________________

                                (December 29, 2015)

Before MARCUS, WILLIAM PRYOR and JILL PRYOR, Circuit Judges.

JILL PRYOR, Circuit Judge:

      The City of Key West, Florida has barred Brad Buehrle from opening a

tattoo establishment in the City’s designated historic district, pursuant to an
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ordinance strictly limiting the number of tattoo establishments permitted to operate

there. Mr. Buehrle contends that the act of tattooing is entitled to First

Amendment protection and that the ordinance is an unconstitutional restriction on

his freedom of expression. The district court granted summary judgment to the

City, agreeing with Mr. Buehrle that tattooing constitutes artistic expression

protected by the First Amendment but nevertheless finding the ordinance to be a

reasonable time, place, and manner restriction. We agree with the district court’s

conclusion that tattooing is protected artistic expression, but we reverse the

summary judgment because, on the record before us, the City has failed to show

that the ordinance is a reasonable time, place, and manner restriction.

                                 I. BACKGROUND

      Mr. Buehrle wished to open a tattoo establishment in the City’s historic

district. After negotiating a lease to rent commercial space there, he attempted to

file an application with the City for a business license. The City denied Mr.

Buehrle’s application. The City prohibits tattoo establishments in the historic

district, see Key West, Fla., Code of Ordinances, subpart A, § 42-6(a), and allows

tattoo establishments only in the General Commercial District as a “conditional

use,” see id. subpart B, § 122-418(21).

      The island of Key West has a history of restricting the operation of tattoo

establishments. From 1966 to 2007, there was a blanket prohibition on operating


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any tattoo establishments on the island. According to local lore, this ban arose at

the request of the United States Navy, which feared that its sailors would obtain ill-

advised tattoos. Today, the City permits only two tattoo businesses to operate in

the historic district as lawful non-conforming uses; it allowed these as part of the

settlement of a prior lawsuit challenging the constitutionality of the ban. The City

maintains that, given its history, tattoo establishments are inconsistent with the

district’s historic character. It also fears that rash tourists will obtain regrettable

tattoos, leading to negative association with Key West. Thus, it argues, permitting

more tattoo establishments will adversely affect tourism.

      Mr. Buehrle filed suit in state court in Monroe County, Florida. The City

removed the action to the United States District Court for the Southern District of

Florida. After conducting discovery, the parties filed cross-motions for summary

judgment. The district court granted the City’s motion and denied Mr. Buehrle’s,

concluding that although the act of tattooing constitutes protected speech, the

City’s ordinance was content neutral and constituted a reasonable time, place, and

manner restriction. This is Mr. Buehrle’s appeal.

                                   II. DISCUSSION

A. Tattooing as Artistic Expression

      The First and Fourteenth Amendments prohibit states from making any law

abridging the freedom of speech. U.S. Const. amends. I, XIV; Bd. of Regents of


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State Colls. v. Roth, 408 U.S. 564, 581 (1972). This protection “does not end at the

spoken or written word,” Texas v. Johnson, 491 U.S. 397, 404 (1989), but extends

to various forms of artistic expression. See Kaplan v. California, 413 U.S. 115,

119-20 (1973) (“[P]ictures, films, paintings, drawings, and engravings . . . have

First Amendment protection . . . .”); see also Hurley v. Irish-Am. Gay, Lesbian &

Bisexual Grp. of Bos., 515 U.S. 557, 569 (1995) (noting that the First Amendment

“unquestionably shield[s]” the “painting of Jackson Pollock, music of Arnold

Schöenberg, or Jabberwocky verse of Lewis Carroll”). Although the Supreme

Court has never explicitly defined the entire universe of artistic expression

safeguarded by the First Amendment, it has cast the amendment’s protections over

a variety of artistic media, including movies, Joseph Burstyn, Inc. v. Wilson, 343

U.S. 495, 501-02 (1952); music without words, Ward v. Rock Against Racism, 491

U.S. 781, 790 (1989); and nude dancing, Schad v. Borough of Mount Ephraim, 452

U.S. 61, 66 (1981).

      We have never addressed whether tattooing is a protected form of artistic

expression. The Ninth Circuit encountered this issue in Anderson v. City of

Hermosa Beach, where it held that tattooing was protected speech and that

Hermosa Beach constitutionally could not ban tattoo establishments from operating

in the city. 621 F.3d 1051, 1055 (9th Cir. 2010). We join the Ninth Circuit in

holding that the act of tattooing is sheltered by the First Amendment, in large part


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because we find tattooing to be virtually indistinguishable from other protected

forms of artistic expression. As our sister circuit observed, “[t]he principal

difference between a tattoo and, for example, a pen-and-ink drawing, is that a

tattoo is engrafted onto a person’s skin rather than drawn on paper. . . . [A] form of

speech does not lose First Amendment protection based on the kind of surface it is

applied to.” Id. at 1061.

      The City points us to a number of district and state court decisions drawing a

distinction between the process of creating a tattoo and the tattoo itself. These

courts reason that the act of wearing a tattoo is communicative, and consequently

protected speech, but that the process of tattooing is not. See, e.g., Hold Fast

Tattoo, LLC v. City of North Chicago, 580 F. Supp. 2d 656, 660 (N.D. Ill. 2008);

Yurkew v. Sinclair, 495 F. Supp. 1248, 1253-54 (D. Minn. 1980); State v. White,

560 S.E.2d 420, 423 (S.C. 2002). In the opinion of these courts, a tattoo artist’s

“interest in engaging in conduct involving tattooing does not rise to the level of

displaying the actual image conveyed by the tattoo, as the tattoo itself is clearly

more communicative, and would be regarded as such by the average observer, than

the process of engrafting the tattoo on the recipient.” Yurkew, 495 F. Supp. at

1254. This, these courts explain, is because “[t]he act of tattooing . . . 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


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skin.” Hold Fast Tattoo, 580 F. Supp. 2d at 660. As such, “[t]he act of tattooing is

one step removed from actual expressive conduct” because, although it can be used

to convey a message, it is the customer’s message being conveyed, not the tattoo

artist’s. Id.

       These decisions treat the First Amendment’s protection as a mantle, worn by

one party to the exclusion of another and passed between them depending on the

artistic technique employed, the canvas used, and each party’s degree of creative or

expressive input. But the First Amendment’s safeguards are not so neatly cabined.

Protected artistic expression frequently encompasses a sequence of acts by

different parties, often in relation to the same piece of work. The First Amendment

protects the artist who paints a piece just as surely as it protects the gallery owner

who displays it, the buyer who purchases it, and the people who view it. See

Griswold v. Connecticut, 381 U.S. 479, 482 (1965) (“The right of freedom of

speech and press includes not only the right to utter or to print, but the right to

distribute, the right to receive, the right to read . . . .”).

       Any other interpretation of the First Amendment in this context would

deprive it of the force and effect the Supreme Court has told us it deserves. See

Ward, 491 U.S. at 790. 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


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and dam the source. Consistent with 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. See Anderson, 621 F.3d at 1062 (“[T]he tattoo

cannot be created without the tattooing process . . . . Thus, as with writing or

painting, the tattooing process is inextricably intertwined with the purely

expressive product (the tattoo), and is itself entitled to full First Amendment

protection.”). For this reason, the Supreme Court has never “drawn a distinction

between the process of creating a form of pure speech (such as writing or painting)

and the product of these processes (the essay or the artwork) in terms of the First

Amendment protection afforded.” Id. at 1061 (emphasis omitted); see also Simon

& Schuster, Inc. v. Members of the N.Y. State Crime Victims Bd., 502 U.S. 105,

116-18 (1991) (First Amendment protects both the act of writing content and the

act of publishing it).

      We suspect the idea that a tattoo represents the expression of the wearer and

not the tattoo artist may spring from an outmoded perception of the tattoo industry.

During the 1960s, tattoo artists began evolving the craft of tattooing beyond the

rote application of standardized designs that historically characterized the medium.

See Ryan J. Walsh, Comment, Painting on a Canvas of Skin: Tattooing and the

First Amendment, 78 U. Chi. L. Rev. 1063, 1090-91 (2011). Today, tattooing as

practiced by a large segment of tattoo artists “emphasizes creativity and


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expression” and is “quite self-consciously an expressive movement.” Id. As one

commentator writes,

      [T]attooing has become a leading art form . . . and the subject of
      museum exhibits throughout the United States. Today, tattoo
      artists are known for their large-scale, unified, custom designs, and
      some have even sought copyrights for their finished pieces.
      Currently, most tattoo artists are graduates of college art programs
      who seek the intrinsic appeal of the medium and desire to break
      free from the limitations, distortions and irrelevance of
      conventional elitist modes of art production.

Carly Strocker, Comment, 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, 187 (2011) (footnotes and internal quotation marks omitted). Mr.

Buehrle and his work appear to be of this ilk, and we see no meaningful basis on

which to distinguish his work from that of any other artist practicing in a visual

medium, certainly not a basis sufficient to deny him First Amendment protection.

B. Reasonable Time, Place, and Manner Restriction

      Having decided that tattooing is artistic expression protected by the First

Amendment, we must determine whether the City’s municipal ordinance limiting

that expression is constitutional. A municipality may regulate protected artistic

expression only if the regulation (1) is justified without reference to the content of

the regulated speech, (2) is narrowly tailored to serve a significant governmental

interest, and (3) leaves open ample alternative channels for communication of the

information. Ward, 491 U.S. at 791. Mr. Buehrle concedes the ordinance is
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content-neutral. Thus, we need only scrutinize the ordinance under the latter two

factors. Because we conclude that the City has failed to demonstrate that the

ordinance serves a significant governmental interest, we do not address whether it

leaves open ample alternative channels of communication.

      The City argues that the ordinance’s purpose is to prevent the deterioration

of the historic district. Specifically, the City fears that allowing additional tattoo

establishments to operate in the historic district would adversely impact the

“character and fabric” of the district and thus the tourism that the district attracts.

We do not doubt that these are substantial government interests. See One World

One Family Now v. City of Miami Beach, 175 F.3d 1282, 1288 (11th Cir. 1999)

(“There is . . . no question that the city’s further interest in creating an aesthetic

ambiance which will attract tourists . . . is a substantial government interest,

especially where, as here, a designated historic area is at issue.”); Messer v. City of

Douglasville, 975 F.2d 1505, 1510 (11th Cir. 1992) (“A government has a more

significant interest in the aesthetics of designated historical areas than in other

areas.”).

      Our inquiry does not end there, however. We do not simply take the City at

its word that the ordinance serves the aforementioned interests. Instead, the City

must demonstrate that it had a reasonable basis for believing that its regulation

would further these legitimate interests. See Zibtluda, LLC v. Gwinnett Cty. ex rel.


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Bd. of Comm’rs, 411 F.3d 1278, 1286 (11th Cir. 2005). 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 (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 has failed to meet its burden. Aside from the ordinance’s vague

statement of purpose,1 the only support for the City’s claim that the ordinance


       1
          An ordinance’s statement of purpose may demonstrate that the ordinance serves a
significant governmental interest if the statement of purpose is sufficiently detailed and
supported with evidence. See Zibtluda, 411 F.3d at 1286-87 (upholding an ordinance based on its
statement of purpose, which cited to experiences of other counties and municipalities,
documentary evidence, and oral testimony). Here, though, the ordinance’s statement of purpose
refers to no evidence and contains no detail beyond its general assertion that limiting the number
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serves significant governmental interests consists of statements by Donald Craig,

the City’s Director of Planning. In his deposition and an affidavit submitted in

support of the City’s motion for summary judgment, Mr. Craig asserted that: Key

West historically prohibited tattoo establishments from operating in the historic

district; allowing tattoo establishments to operate there would impact the district’s

“character and fabric,” which “could . . . impact tourism”; and tourists might

negatively associate Key West with tattoos that they had obtained there but come

to regret.

       As an initial matter, Mr. Craig’s reasons were given in the context of Mr.

Buehrle’s lawsuit, well after the enactment of the ordinance. They therefore

cannot serve as pre-enactment evidence that the ordinance serves a significant

governmental interest. See Peek-A-Boo Lounge, 337 F.3d at 1268; see also

Zibtluda, 411 F.3d at 1286. Even were that not the case, we would still find Mr.

Craig’s statements inadequate because they are, by and large, unsubstantiated. It is

undisputed that there was a blanket prohibition on the operation of tattoo

establishments on the island of Key West from 1966 to 2007, but nothing in the

record corroborates Mr. Craig’s assertions about the prohibition’s origin or tells us

whether any tattoo establishments operated in the area prior to 1966.


of tattoo establishments will prevent “the potential deterioration of a preserved historic district;
an increase in the incidence of disease; and land use incompatibilities.” Key West, Fl., Code of
Ordinances, subpart B, § 122-1543(a). On appeal, the City argues only deterioration of a
preserved historic district.
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      Significantly, the mere fact that Key West successfully prohibited tattoo

establishments in the historic district for approximately forty years does not

support the conclusion that allowing more tattoo establishments would cause the

district’s historical value to deteriorate and impact tourism. To the contrary, the

City’s recent experience suggests otherwise. The City concedes the absence of any

ill effect as a result of the two tattoo establishments it currently allows to operate in

the historic district. And it fails to explain why allowing additional tattoo

establishments to operate there would sour the district’s historical flavor, especially

since the first two apparently have not done so.

      Particularly glaring is the lack of evidentiary support for the City’s

assertions concerning tattooing’s purported effect on tourism. The City pointed to

no study indicating that the operation of tattoo establishments in the historic

district would impact the tourism industry. 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




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Jimmy Buffett song. And we are unsure whether even that reference fully supports

its position. 2

       The First Amendment requires more. We are not at liberty simply to

“presume the evidence” needed to sustain the ordinance. Peek-A-Boo Lounge, 337

F.3d at 1267. “[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). 3 The City failed to satisfy

this burden. On the record before us, the City has presented insufficient evidence

that it had a reasonable basis for believing that its ordinance would actually serve

the significant governmental interests it propounds. Perhaps, if the district court

chooses to permit the introduction of new evidence on remand, the City can

produce the kind of evidence that would satisfy its burden, but so far it has not

done so.




       2
         Jimmy Buffett’s song “Margaritaville” was referenced twice in the record, once by Mr.
Craig in his deposition and once by the City’s attorney in oral argument before the district court,
to support the claim that inebriated tourists are likely to get and then regret tattoos if more tattoo
establishments operate in the historic district. But the singer in “Margaritaville”—seemingly far
from suffering embarrassment over his tattoo—considers it “a real beauty.” Jimmy Buffett,
“Margaritaville,” on Songs You Know by Heart (Geffen Records 1985).
       3
         Although the decision in Flanigan’s Enterprises was ultimately superseded on other
grounds by a county ordinance, Fulton County, Ga., Code § 18–79(17), see Flanigan’s Enters.,
Inc. of Ga. v. Fulton Cty., 596 F.3d 1265 (11th Cir. 2010), it remains valid for the cited
proposition.

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                                III. CONCLUSION

      The district court erred when it concluded that the City’s municipal

ordinance restricting the number of tattoo establishments in its historic district was

a reasonable time, place, and manner restriction on protected expression. We

reverse the grant of summary judgment and remand the case to the district court for

further proceedings consistent with this opinion.

      REVERSED and REMANDED.




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