Fire Law Blog Fire Service and Public Safety Legal Issues Blog by Curt Varone
Today’s burning question: My fire department just implemented a policy prohibiting any display of a tattoo while in uniform. Doesn’t this violate my First Amendment rights?
Answer: As a general rule, no. However, that may not be the only grounds on which to contest such a policy.
A no-show tattoo policy that applies while members are on-duty or in uniform does not per se violate the First Amendment. Under recent US Supreme Court case law, the First Amendment only protects public employee speech when discussing a matter of public concern as a private citizen. Arguably any statement made by a tattoo is unlikely to seriously implicate matters of public concern (I’ll leave the door ajar slightly for a specific argument in a specific case) but the bottom line is an on-duty and/or in-uniform firefighter in not a proper forum for expressing one’s views as a private citizen.
Consider this quote from the US District Court for the Northern District of Texas in the case of a police officer challenging his department’s tattoo policy: “A police officer’s uniform is not a forum for fostering public discourse or expressing one’s personal beliefs.” Riggs v. City of Fort Worth, 229 F.Supp.2d 572 (N.D. Tex. 2002).
The court also noted: “As with any analysis regarding the First Amendment, the threshold issue is whether tattoos are a form of expression or speech that is protected by the First Amendment. Although few Courts have considered the issue, those that have appear to agree that a tattoo is not protected speech under the First Amendment. See Stephenson v. Davenport Comm. Sch. Dist., 110 F.3d 1303 (8th Cir.1997) (stating that “the tattoo is nothing more than ‘self-expression,’ unlike other forms of expression or conduct which receive first amendment protections”); People v. O’Sullivan, 96 Misc.2d 52, 409 N.Y.S.2d 332 (N.Y.App. Div.1978) (stating that tattooing is not speech or even symbolic speech).”
While the First Amendment may not offer much if any protection, collective bargaining laws may require that such a policy be negotiated as a change of the “terms and conditions of employment”. In addition, if the policy is implemented as a pretext to harass or discriminate against certain employees, or if it specifically targets members of a protected class, it may be unlawful.
Have said all that, when I advise fire chiefs on tattoo policies, I recommend they adopt a no-show policy… assuming they have the need to address tattoos. Let’s face it – while most tattoos are benign, some tattoos are offensive. A no-show policy avoids the need for the chief to get into approving or disapproving certain tattoos which in turn would open Pandora’s Box for allegations of discriminatory censorship.
