In a decision that conflicts with those of at least six other cases from various jurisdictions, the Ninth Circuit, as Law.com puts it, “had no trouble deeming tattoos and the business of tattoo parlors forms of pure expression fully protected by the First Amendment.”
In Anderson v City of Hermosa Beach (9th Cir, Sept. 9, 2010, No. 08-56914) (.pdf), a challenge was brought to the city of Hermosa Beach’s ban on tattoo parlors. The Ninth Circuit found that both the tattoo and the process of getting a tattoo are protected speech, explaining 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.
The court stated that tattoos are generally made up of words, images, and symbols, all forms of pure expression entitled to full First Amendment protection. The main difference between a tattoo and a pen-and-ink drawing is that “a tattoo is engrafted onto a person’s skin rather than drawn on paper,” a distinction without constitutional significance. Further, as with writing or painting, the tattooing process is inextricably intertwined with the purely expressive product (the tattoo) and is thus itself entitled to full First Amendment protection.
Interestingly, the Ninth Circuit went so far as to call tattooing a “unique and important method of expression.”
On a city’s ability to regulate businesses and personal conduct, including relevant First Amendment issues, go to source the cities’ use — The California Municipal Law Handbook, chap 9 (Cal CEB Annual).
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