If your city is going to stop a tattoo parlor from opening, it’s going to have to do better than citing Jimmy Buffett song lyrics.
Key West learned that lesson last week when a federal appeals court ruled that the city had no right to prevent a third tattoo parlor from opening in the town’s historic district.
Lawyers for Key West had argued that the First Amendment complaint raised by the tattoo parlor owner was not sufficient to overrule the city’s contention that tattoo parlors have an adverse effect on tourism.
They argued that “rash tourists will obtain regrettable tattoos, leading to negative association with Key West” and that this would hurt the city’s reputation as a vacation destination.
Lacking actual data to support that argument, the city cited the lyrics to the song, “Margaritaville” by Jimmy Buffett.
The song’s narrator sings of his perpetual state of inebriation, which has not only caused him to lose his salt shaker, but also end up with “nothing to show but this brand new tattoo.”
How it got there? He hasn’t a clue.
The lawyers said that actual tourists coming to Key West might have a similar experience, after wrapping up a night of drinking on Duval Street at a tattoo parlor. Especially if there are three, not two tattoo parlors, available.
And they may hold this against Key West by refusing to visit again.
But the appeals court wasn’t biting, choosing instead to interpret the Buffett lyrics in a way that didn’t support their argument.
“The singer in ‘Margaritaville’—seemingly far from suffering embarrassment over his tattoo—considers it ‘a real beauty.’” the judges wrote.
Not to mention “a Mexican cutie,” I might add.
Key West had once banned tattoo parlors, supposedly at the request of the U.S. Navy, which didn’t want its sailors getting drunk on shore leave and ending up with tattoos they soon regretted.
But in 2007, the city settled a First Amendment lawsuit by allowing two tattoo parlors to open for business under what is called a “lawful non-conforming use” of the city’s zoning code.
The First Amendment protection of tattoos has been recognized by courts, making regulations against tattoo parlors subject to free speech challenges. A California appeals court ruled that the only relevant difference between a tattoo and and a pen-and-ink drawing is that one uses skin as a surface, while the other uses paper.
“A form of speech does not lose First Amendment protection based on the kind of surface it is applied to.” that court ruled.
In the Key West case, the court found that the tattoo parlor owner was engaged in a business that created visual art.
“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,” the judges ruled.
Cities and other government bodies can overcome that protection if the regulation of artistic expression is “narrowly tailored to serve a significant governmental interest.”
But Buffett’s lyrics fall well short of screaming out for government intervention.
In order for Key West to prevail, it would have to persuade Buffett to rewrite the lyrics of “Margaritaville” to something along these lines:
Don’t know the reason, stayed here all season
With nothing to show but this brand new tattoo.
And now it’s infected, and I’m so dejected,
I’m done with the Keys, and fixing to sue.
Oozing away again in Margaritaville,
Lookin’ for the Neosporin tube near my bunk
Some people claim that there’s a pirate ship on my back
But I know, it’s not my fault, I was drunk