Posted By: Dwight Merriam, Robinson & Cole, LLP
I’ve been busy and I have missed doing my occasional blog postings. Given this dramatic event last week, however, I had to set aside everything else to tell you that on Thursday, September 9th, the Ninth Circuit held that getting a tattoo is protected speech. Click here for the decision.
Said the court: “We hold 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.”
So, to get your tattoo with no sniveling zoning enforcement officers on your tail – you will soon be able to go to Hermosa Beach, California, and see Johnny Anderson, shown here hard at work at his shop, Yer Cheat’n Heart Tattoo and Body Piercing, in Gardena:
Exercise your First Amendment right to have a little ink shot under your skin. It’s your expression and his art. Here’s how Johnny describes it:
The tattoo designs that are applied by me are individual
and unique creative works of visual art,designed by me in collaboration with the person who is to receive the tattoo. The precise design to be used is decided upon after discussion with the client and review of a draft of the design. The choices made by both me and by the recipient involve consideration of color, light, shape, size, placement on the body, literal meaning, symbolic meaning, historical allusion, religious import, and emotional content. I believe my designs are enormously varied and complex, and include realistic depictions of people, animals and objects, stylized depictions of the same things, religious images, fictional images, and geometric shapes and patterns. . . . Sometimes, several kinds of images are combined into a single tattoo or series of tattoos. . . . I have studied the history of tattooing, and I draw significantly on traditional Americana tattoo designs and on Japanese tattoo motifs in creating my images, while all the while trying to add my own creative input to make the designs my own.
NPR reported the comments of City Attorney Michael Jenkins: “We are disappointed by the decision reached by this three-judge panel of the Court of Appeals. The Hermosa Beach City Council places a priority on protecting the public’s health and safety, and it adopted this ordinance because of the potential health hazards caused by unsanitary tattoo practices.”
The court’s slip opinion runs 28 pages, loaded with carefully-articulated First Amendment analysis and graphic descriptions of the tattooing process. Do you think there wasn’t a bit of a smile among some of those justices and clerks as they etched there own ponderous words onto some hard drive:
Tattooing is a process like writing words down or drawing a picture except that it is performed on a person’s skin. As with putting a pen to paper, the process of tattooing is not intended to “symbolize” anything. Rather, the entire purpose of tattooing is to produce the tattoo, and the tattoo cannot be created without the tattooing process any more than the Declaration of Independence could have been created without a goose quill, foolscap, and ink. Thus, as with writing or painting, the tattooing process is inextricably intertwined with the purely expressive product (the tattoo), and is itself entitled to full First Amendment protection.
The court concluded:
In sum, we hold that the tattoo itself, the process of tattooing, and the business of tattooing are forms of pure expression fully protected by the First Amendment. We further hold that the City’s total ban on tattoo parlors in Hermosa Beach is not a reasonable “time, place, or manner” restriction because it is substantially broader than necessary to achieve the City’s significant health and safety interests and because it entirely forecloses a unique and important method of expression. Moreover, no genuine issue of material fact exists with respect to the constitutionality of the regulation. Thus, we hold that Hermosa Beach Municipal Code § 17.06.070 is facially unconstitutional to the extent that it excludes tattoo parlors, and we reverse the district court’s order granting summary judgment in favor of the City and remand with instructions to grant Anderson’s motion for summary judgment and enjoin the City to include tattoo parlors in its zoning regulations.
So, if you don’t allow tattoo parlors, expect to hear from the entrepreneurs of skin illustration shortly, maybe with the free speech clause inked on the…well, wherever…
As soon as I finished reading the decision, I hopped right down to Johnny’s and one of his assistants, who was pretty excited because he said I was his very first customer, inked this great tattoo (I think his shaking was just first-time nervousness) which I will proudly show at the New Orleans meeting: