Tattoo Parlors: Protected by First Amendment, Not Accepted by Society

First Amendment protection of free speech turns up in some odd places. Recent cases have protected videos of animal cruelty, picketing of military funerals and corporate expenditures to promote campaign hit pieces. When legislative bodies punish or prevent unpopular speech, the courts have stepped in, giving full force to the First Amendment's words "Congress shall make no laws abridging the freedom of speech...."

But tattoo parlors?

The most recent blow for freedom of expression comes from the 9th U.S. Circuit Court of Appeals, at the expense of the city of Hermosa Beach, which had zoned itself to completely eliminate the possibility of a tattoo parlor located within its city limits. Anderson v. City of Hermosa Beach (2010 DJDAR 14319).

Johnny Anderson, the owner of a Los Angeles tattoo parlor wanted to expand into Hermosa Beach. After his attempt to obtain a business license was rebuffed, he brought suit in federal district court, asserting, among other things, that the exclusion of his establishment from the city violated his right to freedom of expression.

Anderson argued that his works are "individual and unique works of art." The city was unimpressed. It defended its position by compiling a list of the many diseases and infections that can result from unsanitary tattooing.

One thing we can be reasonably certain of is that the city's true concern was not one of health, but of the image of the community. Tattoo parlors are considered one step below payday check cashing services in the municipal self-image department. (I know that "everyone knows" is not sufficient to have a fact admitted in evidence, but I will stand on the statement. Claremont, the city in which I reside, has no tattoo parlors. One such establishment attempted to locate there some years ago, but the city enacted an ordinance modeled on Hermosa Beach's. It is now located in Rancho Cucamonga, and operates under the name "Claremont Tattoo Studio")

The district court was not sympathetic with Anderson or his view of the First Amendment. It found that the Constitution did not offer protection, on the ground that while tattooing is expression, it was not "sufficiently imbued with the elements of communication" to merit protection. It reasoned that the customer had ultimate control of the creative elements, which prevented the tattoo artist from claiming protection for his efforts. That conclusion precluded heightened constitutional scrutiny, and the court was able to find that the ordinance met a rational basis standard, thus giving the city a pass on the constitutional issue.

Anderson found more receptive audience on his appeal to the 9th Circuit. The court there analyzed the attempt to open the parlor on three levels: the tattoo itself, the process of tattooing, and the business of operating a tattoo parlor.

It found no difficulty in holding that the tattoo itself is expression for First amendment purposes, citing dance, movies, parades and other forms to which the Supreme Court has given protection. The court was willing to take "judicial notice of the skill, artistry, and care that modern tattooing have demonstrated." Under constitutional doctrine, there are virtually no limits on what can constitute communication or artistic expression.

From there the court went on to find that the process of tattooing was itself a protected activity. The process, it held, is akin to putting words on paper or oil paint on canvas. As such, it merits pure First Amendment protection.

A more challenging issue is the parlor itself. Operating a tattoo parlor is a business, not an artistic endeavor. The court relied on its holdings that the sale of paintings is protected as speech under the First Amendment. In its view, the tattoo parlor is not different from an art gallery. Both can receive First Amendment protection. It quoted the Supreme Court: "The degree of First Amendment protection is not diminished merely because the [protected expression] is sold rather than given away."

It would have been be anomalous for the court to have held that the activity is protected, but a business that is the only outlet for the protected activity can be excluded.

Finding the product, the process and the business to be constitutionally protected, the city's regulation is limited to reasonable limitations of time, place and manner. The 9th Circuit panel held that a complete ban did not meet that standard. Even when more demanding constitutional tests were applied, the result was the same.

Tattoo parlors in California are required to register with the appropriate county health department, and the county is required to inspect them. Hermosa Beach argued that the 300 parlors and 850 tattooists in Los Angeles County were beyond the capacity of the county's one inspector to oversee effectively. The court recognized that this placed the burden of assuring sanitation on individual businesses. The county's inspector is quoted as saying that most establishments "are clean and sanitary, others are not." A Web site gives a list of questions a person selecting an artist should ask to assure his safety. (www.mayuoclinic.com/tattoos-and-piercings/mc000020health'health.)

Tattooing is a matter of personal taste and preference, and personal freedom. It is unlawful to tattoo anyone under 18 years of age in Los Angeles County, and it probably is still sound advice not to be decorated on any part of one's body that will not be covered during a normal job interview, no matter what the Constitution says.