In Anderson v. City of Hermosa Beach, (— F.3d —-, C.A.9 (Cal.), September 9, 2010), the United States Court of Appeals for the Ninth Circuit considered whether a municipality’s ban on tattoo parlors is unconstitutional because it violates the First Amendment of the United States Constitution. The court of appeals held “that tattooing is purely expressive activity fully protected by the First Amendment” and that the municipality’s total ban on tattooing is unconstitutional.
Johnny Anderson (“Anderson”) sought to establish a tattoo parlor in the City of Hermosa Beach (“City”). City’s municipal code effectively bans tattoo parlors because no provision of the municipal code permits tattoo parlors. Section 17.06.070 of City’s municipal code provides that no land use is allowed under the code unless it is specifically provided for in the code. The code provides zoning for a wide variety of uses, but there is no provision that permits tattoo parlors. Anderson brought a lawsuit in which he sought to have section 17.060.070 of the Code declared unconstitutional. The trial court granted City’s motion for summary judgment.
The court of appeal held that City’s ban on tattoo parlors violates the First Amendment. The First Amendment prohibits laws that abridge the freedom of speech. The court found that “[t]he tattoo itself, the process of tattooing, and even the business of tattooing are . . . purely expressive activity fully protected by the First Amendment.”
The court found “[t]here appears to be little dispute that the tattooing itself is pure First Amendment ‘speech.’” Tattoos are usually made up of words, images, and symbols, which are all “forms of pure expression that are entitled to full First Amendment protection.” The difference between a traditional drawing made of pen and ink and a tattoo is that the tattoo is drawn on skin rather than on paper. The court found, “This distinction has no significance in terms of the constitutional protection afforded the tattoo; a form of speech does not lose First Amendment protection based on the kind of surface it is applied to.”
The court found the process of tattooing is also purely expressive activity because it is like drawing a picture or writing words down except the process is performed on a person’s skin. Tattooing is a collaborative process and both the person receiving the tattoo and the person giving the tattoo are engaged in expressive activity.
Here, City’s ban regulates tattoos businesses instead of the tattooing process. Previous federal appellate cases have held that the sale of a painting is so intertwined with the production of the painting that the sale is entitled to full constitutional protection. The court here found that the “same logic applies to the business of tattooing.”
The court was required to determine whether City’s ban on tattoo parlors constituted a reasonable time, place, or manner restriction on protected speech. The test to determine whether a restriction is a reasonable time, place, or manner restriction requires a court to determine whether the restriction “(1) is ‘justified without reference to the content of the regulated speech;’ (2) is ‘narrowly tailored to serve a significant governmental interest;’ and (3) ‘leave[s] open ample alternative channels for communication of the information.’”
The court concluded the ban was not a reasonable time, place, or manner restriction. City tried to justify its ban of tattoo parlors based on health and safety concerns. However, the court concluded City did not have to totally ban tattoo parlors in order to address health and safety concerns. City could have addressed its concerns through regulation of tattoo parlors rather than a total ban. The court also concluded that by banning tattoo parlors, City “completely foreclosed a venerable means of communication that is both unique and important.”
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