Are Online Avatars Protected Speech?

Free Speech OnlineIn a seminal decision, the Arizona Supreme Court unanimously ruled that tattoos are expressions of protected free speech. The decision got us thinking: “Are online avatars considered free speech in the eyes of the court, too?”

Court: Tattoos Are Free Speech

In 2009, the Mesa City Council denied tattoo artists Laetitia and Ryan Coleman permission to open their business because it was deemed “not appropriate for the location or in the best interest of the neighborhood,” even though the couple had already rented the space and agreed to a “good-neighbor” policy. So, the Colemans filed a lawsuit claiming violations to due process, free speech, and equal protection. It was dismissed by the Maricopa County Superior Court, but ultimately overturned by the Arizona Supreme Court, which stated:

“Recognizing that tattooing involves constitutionally protected speech, we hold that the superior court erred by dismissing the complaint as a matter of law.”

Does this mean the couple can open the tattoo parlor? Not necessarily. But the case will be  turned back over to the Maricopa County Superior Court to answer the question: Do First Amendment rights outweigh Mesa, Arizona’s ability to regulate businesses that are involved protected speech?

In its ruling, the Arizona Supreme Court cited Anderson v. City of Hermosa Beach. In that case it was decided that a tattoo itself is pure speech, meaning it is protected under the Constitution unless they are defamatory, and that the act of tattooing is an expressive activity.

The ruling that tattoos are protected speech is momentous. “Tattoo artists are often subjected to enormous regulation, especially in terms of operating their businesses,” the Colemans attorney, Clint Bolick, told Reuters. “As a result we now know that in Arizona, tattoo artists will be able to ply their trade free from excessive regulation,” he said.

Are Online Avatars Considered Free Speech?

This significant Arizona Supreme Court ruling got us thinking about where online avatars fall on the free speech spectrum. And believe it or not, even though it seems like avatars have been around for a long time, at the time of this writing, there is very little case law regarding avatars and free speech.

Take for example the ruling in Bland v. Roberts. Though the case had more to do with employment law than Internet law, it did result in a significant Internet law ruling. In short, the initial decision in Bland established legal precedence that liking something on Facebook is not considered free speech, since no words are actually spoken.

One of the plaintiff’s in Bland, Carter, opted to file an appeal. Recognizing the chilling effects of not recognizing certain social media activities as free speech, Facebook and the American Civil Liberties Union have come out in support of the appellant. Facebook’s brief is long and nuanced, but their basic argument is that “likes” are the equivalent to a political lawn sign, and as such should fall under protected speech. One would assume that the same would hold for avatars, too, in the eyes of the court.

Do you have an online free speech legal issue and want to talk to a lawyer? If yes, contact Kelly / Warner Law today. Our team of Internet lawyers is well versed in all matters related to Internet censorship, how First Amendment rights are applied to online situations and free speech on the Web. We’re ready to talk when you are.

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