In a case of first impression, the Ninth Circuit recently addressed whether a municipal ban on tattoo parlors violated the First Amendment. Splitting with several jurisdictions, the Ninth Circuit held that tattooing was purely expressive activity fully protected by the First Amendment and that a total ban on such activity was not a reasonable "time, place, or manner" restriction.
Appellant Johnny Anderson had sought to establish a tattoo parlor in the City of Hermosa Beach. However, Hermosa Beach's Municipal Code effectively banned tattoo parlors. Anderson sued the City, alleging that the ban was facially unconstitutional under the First and Fourteenth Amendments.
In analyzing the issue, the Ninth Circuit's first task was to determine whether tattooing was: (1) purely expressive activity; or (2) conduct that merely contained an expressive component. In other words, whether tattooing was more akin to writing (an example of purely expressive activity) or burning a draft card (an example of conduct that can be used to express an idea but does not necessarily do so). If purely expressive activity, tattooing was entitled to full First Amendment protection, and the City's regulation was constitutional only if it was a reasonable "time, place, or manner" restriction on protected speech. If merely conduct with an expressive component, then tattooing was entitled to constitutional protection only if it was sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments.
The Ninth Circuit held that the City's tattooing regulation was facially unconstitutional to the extent that it excluded tattoo parlors. Tattooing was deemed purely expressive activity rather than conduct expressive of an idea and was thus entitled to full First Amendment protection without any need to resort to the "sufficiently imbued" test. Specifically, the tattoo itself, the process of tattooing, and even the business of tattooing were not expressive conduct but purely expressive activity fully protected by the First Amendment. Of interest, the Ninth Circuit held that:
The principal difference between a tattoo and, for example, a pen-and-ink drawing, is that a tattoo is engrafted onto a person's skin rather than drawn on paper. 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. It is true that the nature of the surface to which a tattoo is applied and the procedure by which the tattoo is created implicate important health and safety concerns that may not be present in other visual arts, but this consideration is relevant to the governmental interest potentially justifying a restriction on protected speech, not to whether the speech is constitutionally protected.
. . . .
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.
Moreover, the City's total ban on tattooing was not a constitutional restriction on protected expression because it was not a reasonable "time, place, or manner" restriction. The Ninth Circuit analyzed the restriction under the three part test for reasonableness: (1) is the restriction justified without reference to the content of the regulated speech; (2) is it narrowly tailored to serve a significant governmental interest; and (3) does it leave open ample alternative channels for communication of the information? Though justified on health and safety concerns, the restriction was deemed substantially broader than necessary to achieve the City's interests because the City gave no reason to conclude that health concerns could not be adequately addressed through tattoo regulation rather than a total ban on tattoo parlors. Moreover, the restriction did not leave open ample alternative channels for the information's communication. In rejecting the City's contention that alternative means were available for applying the exact same words, images, and symbols to skin, such as airbrushing or the use of natural henna paste to create temporary tattoos, the Ninth Circuit held that:
the City of Hermosa Beach has "completely foreclosed a venerable means of communication that is both unique and important." . . .
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. The relative permanence of the tattoo can also make a statement of "autonomy and self-fashioning"--" of ownership over the flesh" and a "defen[se of] the embodied self against external impositions." Finally, the pain involved in producing a permanent tattoo is significant to its bearer as well: "Pain, like the tattoo itself, is something that cannot be appropriated; it is yours alone; it stands outside the system of signification and exchange that threatens the autonomy of the self." 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 T-shirt. 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.
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