Brad Buehrle v. City of Key West
813 F.3d 973
11th Cir.2015Background
- Brad Buehrle sought to open a tattoo parlor in Key West’s historic district; the City denied his business-license application under an ordinance limiting tattoo establishments in the district.
- Key West historically banned tattoo shops island-wide from 1966 to 2007; two existing tattoo businesses in the historic district operate as lawful nonconforming uses from a prior settlement.
- The City asserts the ordinance preserves the historic district’s character and protects tourism, arguing additional tattoo shops would harm the district’s aesthetic and attract regrettable tattoos by tourists.
- Buehrle sued; the case was removed to federal court. The district court held tattooing is protected expression but upheld the ordinance as a content-neutral time, place, and manner restriction and granted summary judgment for the City.
- The Eleventh Circuit agreed tattooing is protected First Amendment expression but reversed because the City failed to show pre-enactment or other adequate evidence that the ordinance reasonably furthers the asserted substantial interests.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether tattooing is protected speech | Tattooing is artistic expression entitled to First Amendment protection | Tattooing’s communicative aspect belongs to the wearer; the tattooing process is not protected | Tattooing (including the tattooing process) is protected artistic expression |
| Whether the ordinance is content‑neutral | Concedes content-neutral; challenges other requirements | Ordinance is content-neutral and a valid time, place, manner restriction to protect historic character and tourism | Ordinance is content-neutral, but City failed to meet burden on other requirements |
| Whether the City showed a significant governmental interest supported by evidence | City must show reasonable basis/evidence that ordinance furthers significant interests | City asserts preservation of historic district and protection of tourism suffice | City’s asserted interests are substantial, but City failed to present pre‑enactment or other substantive evidence to support them |
| Whether the ordinance is narrowly tailored / leaves adequate alternatives | Challenges narrow‑tailoring and adequacy of alternatives | City relies on zoning classification and conditional‑use scheme as narrowly tailored with alternatives elsewhere | Court did not decide narrow‑tailoring/alternatives because City failed on evidentiary burden to justify significant interest |
Key Cases Cited
- Texas v. Johnson, 491 U.S. 397 (1989) (First Amendment protection extends beyond spoken or written word)
- Ward v. Rock Against Racism, 491 U.S. 781 (1989) (time, place, manner test for content‑neutral regulation)
- Anderson v. City of Hermosa Beach, 621 F.3d 1051 (9th Cir. 2010) (tattooing is protected speech)
- City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002) (government must rely on more than shoddy data to justify secondary‑effects regulation)
- Peek‑A‑Boo Lounge of Bradenton, Inc. v. Manatee Cty., 337 F.3d 1251 (11th Cir. 2003) (need for pre‑enactment evidence that regulation addresses secondary effects)
- Zibtluda, LLC v. Gwinnett Cty. ex rel. Bd. of Comm’rs, 411 F.3d 1278 (11th Cir. 2005) (municipality must show reasonable basis for believing regulation furthers asserted interests)
- Griswold v. Connecticut, 381 U.S. 479 (1965) (First Amendment protects distribution and receipt as well as creation)
- Simon & Schuster, Inc. v. Members of the N.Y. State Crime Victims Bd., 502 U.S. 105 (1991) (First Amendment protects both creation and publication of expressive works)