Federal Appeals Court: "Tattoos are free speech protected by Constitution"
04:12 PM
cape fear tattoo.jpg

Wonderful news on the tattoo law front! The U.S. 9th Circuit Court of Appeals just ruled, in Johnny Anderson v. City of Hermosa Beach, that "tattooing is purely expressive activity fully protected by the First Amendment, and that a total ban on such activity is not a reasonable 'time, place, or manner' restriction."

This is huge and it's implications may go beyond zoning restrictions and even affect cases related to employment discrimination, for example. I just read the full decision and will give y'all the highlights but first some background to the case:

Last May, in our First Amendment & Tattoos post, we first mentioned the Appellate Court agreeing to review the case of Johnny Andersen of Yer Cheat'n Heart Tattoo against Hermosa Beach, CA. Johnny wanted to relocate to Hermosa Beach but was denied because zoning laws prohibited tattooing in the city. He sued in 2006 and lost because the lower court found that tattooing was a service and "'not sufficiently imbued with elements of communication" to be protected as speech.

Wrong! according to today's published decision by the Appellate Court, and they really rip it apart.

So, I'll actually use my law license for some good today and break it all down for you. I'm picking out some key elements that may help other tattoo artists facing similar restrictions on doing business and hopefully we'll see more wins as well.

* First, what's this "sufficiently imbued with elements of communication" stuff? Well, as the Court notes, the First Amendment includes pure speech but it also protects conduct that's intended to send a message that most people would understand, like burning a draft card. However, the government has a "generally freer hand" in restricting this conduct than it has in pure speech. So, the Court first looked at whether tattooing is pure speech, that is, "a purely expressive activity" like writing, or whether it's conduct that just contains an expressive component. Here's what the three-judge panel said:

"The tattoo itself, the process of tattooing, and even the business of tattooing are not expressive conduct but purely expressive activity fully protected by the First Amendment."

Woohoo! Here's more:

There appears to be little dispute that the tattoo itself is pure First Amendment "speech." The Supreme Court has consistently held that "the Constitution looks beyond written or spoken words as mediums of expression." [...] We do not profess to understand the work of tattoo artists to the same degree as we know the finely wrought sketches of Leonardo da Vinci or Albrecht Durer, but we can take judicial notice of the skill, artistry, and care that modern tattooists have demonstrated.

So now, federal judges have taken note of how tattooing has risen to a level of fine art. Could this decision get any better? Yes, it does.

* In discussing how the process of tattooing is "inextricably intertwined with the purely expressive product (the tattoo), and is itself entitled to full First Amendment protection," the Court also makes note of the client-tattoo artist relationship. The lower court made a big deal out of the customer having control over the tattoo design, thereby making it less expressive conduct. The Appellate Court disagreed, saying that, following such an argument, Michelangelo's painting of the Sistine Chapel is not expressive because it was commissioned. In fact, both the client and artists are engaging in expressive conduct in the tattoo process. [Also, the Court said that, just because someone is paying for a tattoo, doesn't make the business of tattooing less expressive either.]

* Ok, now that the Court decided that tattooing is protected by the First Amendment, they next had to decide whether Hermosa Beach's total ban on tattooing was a constitutional restriction on free expression. In this particular case, because the content of the speech isn't banned -- for example, there was no ban on religious tattoos, just tattooing in general -- the test is to determine whether the City's regulation is a reasonable "time, place, or manner" restriction on protected speech, and that it is "narrowly tailored" to serve the government's interest. There's no argument in this case that the City has a real interest in regulating tattooing because of health and safety concerns. The argument is whether a total ban on tattooing is too broad to achieve this interest.

Hermosa Beach basically said (paraphrased of course), Dude, we only have one health inspector in Los Angeles County for 300 shops and over 850 [!!!] tattooists. We just don't have the dough to regulate everyone "including the many who, like Plaintiff, are self-taught and operating in backrooms and basements". That last part I didn't paraphrase. Did the City just call Andersen a scratcher?

Anyway, the Court said (also paraphrased), Well that's too convenient, Hermosa Beach! You can't ban an entire medium of expression just because it would take some time and money to regulate it, especially when there are no "alternative channels."

* Alternative channels? Is that like Logo TV or FX [Sons of Anarchy rules!]? Not really. The term refers to the need to have other ways to communicate if certain speech is restricted. The City argued, essentially, that those who want a tattoo of a design or words can just get henna or a t-shirt or poster that expresses the same thing. They said that nothing is stopping tattooists from airbrushing their art on canvas...

I know! The Court found this equally ridiculous. Here's what they said, beautifully so:

Like music, tattooing is "one of the oldest forms of human expression," as well as one of the world's most universally practiced forms of artwork. And it has increased in prevalence and sophistication in recent years.
Most importantly, a permanent tattoo "often carries a message quite distinct" from displaying the same words or picture through some other medium, and "provide[s] information about the identity of the 'speaker'." A tattoo suggests that the bearer of the tattoo is highly committed to the message he is displaying: by permanently engrafting a phrase or image onto his skin, the bearer of the tattoo suggests that the phrase or image is so important to him that he has chosen to display the phrase or image every day for the remainder of his life...Finally, the pain involved in producing a permanent tattoo is significant to its bearer as well.
These elements are not present--or, at least, not nearly to the same degree--in the case of a temporary tattoo, a traditional canvas, or a Tshirt. Thus, we disagree with the City that "[t]here is nothing inherently or distinctly expressive about rendering . . . designs on the skin" using the ink-injection method.

To sum it all up:

  • Tattoos, tattooing and making money from tattooing is constitutionally protected.
  • General tattoo bans are not the way to regulate tattooing. Restrictions must be specifically tailored to the purpose of protecting public health and safety.
  • Getting a tattoo is not like airbrushing a t-shirt.
  • Judges in LA think tattoos are pretty.
  • And I am no longer that ashamed to be a part of the legal profession.

Good news indeed! Great post. Thanks for breakin' it down!

Tatoo artists have waited too long to hear what should have been obvious.
Precedent set. Long live 'one of the oldest forms of human expression'.

Yeaaaayuhh! The tide is turning. By the time the next generation becomes adults, maybe it will even be socially acceptable for such people as doctors and lawyers and the like to have visible tattoos. Although from the sounds of it, the guy who wrote the article is a tattooed lawyer. GOOD FOR HIM.

I meant to say, "Although from the sounds of it, the gal who wrote the article is a tattooed lawyer. GOOD FOR HER." Apologies!

Fantastic! thanks for the great summary.

wow... awesome news! and thanks for translating the legal junk :)

Congratulations for us all!!

Insanely awesome news!!! This could set precedence around the country, no? Hope so.

The legal translations made me snort... at work... awesome. ;^)


congratulations to all

How awesome! Definitely a step in the right direction.

(Really well-written article too. I love this blog's frank, thorough articles. It's always a pleasure to read.)

Great News. Our constitution at its best. Great article.

Great news. Thank you for the layman's interpretation.

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