Ninth Circuit Says First Amendment Protects the Right to Tattoo

LTB default 777x437

Good news for those of you living within the Ninth Circuit — your right to tattoo others has been held "fully protected by the First Amendment."

In Anderson v. Hermosa Beach, decided September 9, the panel struck down a local ordinance that basically imposed a total ban on tattoo parlors within the city of Hermosa Beach, California.  Municipal Code section 17.06.070 provides zoning for a wide variety of businesses, but not these.  So in Hermosa Beach, you could operate an "adult" business, gun shop, or fortune teller (or, ideally, some combination of all three), but you couldn't run a tattoo parlor.

The plaintiff owns a tattoo parlor in Los Angeles and wanted to open one in Hermosa Beach, but his request for a permit was denied.  He sued, arguing that the ban violated the First Amendment.  The district court ruled that tattooing was not protected expression, at least on the part of the tattooer, largely because the tattooee decides what he or she wants on his or her body.  That court therefore applied the "rational basis" test, and that meant Anderson lost. 

On appeal, the Ninth Circuit said its first task was "to determine whether tattooing is (1) purely expressive activity or (2) conduct that merely contains an expressive component."  In other words, is it like writing, which always expresses something, or more like burning a draft card, which might express something (e.g. I don't want to get shot) or might not (if you are just trying to start a fire?).  The court found there was no dispute that a tattoo itself is protected "speech" even if it doesn't consist of words.  Disagreeing with other courts, it then held that the process of tattooing someone must also be protected, because you can't separate the process from the tattoo itself.

How You Will Explain It to Your Grandkids Is Another Question Having decided that, the remaining question was whether the ordinance was a valid "time, place or manner" restriction, and given that it imposed a complete ban the answer to that was a pretty obvious "no."  As a result, Hermosa Beach residents who want to get inked will be able to do so much closer to home.

If you are interested in the history of the tattoo, and who isn't, the opinion cites to what look like pretty interesting sources.  One to consider: Mark Gustafson, The Tattoo in the Later Roman Empire and Beyond, in the book Written on the Body: The Tattoo in European and American History (Reaktion Books 2000).