Vol. 25 No. 19- Total Ban On Tattoo Parlors Is Unconstitutional

On September 9, 2010, the Ninth Circuit, U.S. Court of Appeals, ruled in the case of Anderson v. City of Hermosa Beach, 2010 DAR 14319, that a total ban on tattoo parlors violated the First Amendment of the U.S. Constitution.    The Court held that, “the tattoo itself, the process of tattooing, and even the business of tattooing are … purely expressive activity fully protected by the First Amendment.”  (Emphasis in original.)

PROTECTED ACTIVITY

The Court, in a detailed analysis of the protection afforded under the First Amendment, stated that not all “speech” or conduct is protected under the Amendment.  Generally, “speech is entitled to First Amendment protection unless it falls within one of the categories of speech … fully outside the protection of the First Amendment….”  For example, burning a draft card, although it expresses an idea, is not protected speech or conduct.

As such, said the Court, “we must determine whether tattooing is more akin to writing (an example of purely expressive activity) or burning a draft card ….”   The Court held
that, “tattooing is purely expressive activity, … and is thus entitled to full First Amendment protection …” and “the City’s total ban on tattooing is not a constitutional restriction on protected expression because it is not a reasonable ‘time, place or manner’ restriction.”  (Emphasis added.)

The City argued that the “process of injecting dye into a person’s skin through the use of needles … is non-expressive conduct …” and not protected under the First Amendment.    The Court disagreed, stating that “neither the Supreme Court nor our court has ever drawn a distinction between the process of creating a form of pure speech (such as writing or painting) and the product of these processes (the essay or the artwork) in terms of the First Amendment protection afforded.”

“Tattooing is a process like writing words down or drawing a picture except that it is performed on a person’s skin.”  Furthermore, the Court concluded, “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 TATTOO PARLOR

As to the operation of a business, which is what the City actually prohibited, the Court said that, “the fact that the City’s ban related to tattooing business rather than the tattooing process itself does not affect whether the activity regulated is protected by the First Amendment.”

“[A]n artist’s sale of his original artwork constitutes speech protected under the First Amendment.”  (Emphasis in original.)  In referring to earlier court decisions, the Ninth Circuit held that “because the sale of a painting is intertwined with the process of producing the painting, the sale is entitled to full constitutional protection ….”

In response to health and safety concerns, raised by the City, the Court acknowledged that the Centers for Disease Control and Prevention, as well as the Food and Drug Administration, have confirmed that there are significant health risks of tattooing.  However, it pointed out, it is also generally accepted that “tattooing is a safe procedure, if performed under appropriate sterilized conditions.”

The County of Los Angeles, in which the City of Hermosa Beach is located, permits and regulates tattoo establishments and there are, almost, 300 of them throughout the county.  However, the City argued, there is only one person employed by the County to inspect all of those facilities and, therefore, tattoo parlors are not properly or effectively regulated.

The Court noted that “the City has presented no evidence that tattooing in the City     could not be regulated in such a way that addresses the City’s legitimate public health concerns.”  (Emphasis in original.)   As such, “we cannot approve a total ban on protected First Amendment activity simply because of the government’s failure to provide the resources it thinks are necessary to regulate it.”

HOW THIS AFFECTS YOUR AGENCY

The Court points out that “the City of Hermosa Beach has completely foreclosed a venerable means of communication that is both unique and important.  Like music, tattooing is one of the oldest forms of human expression, as well as one of the world’s most universally practiced forms of artwork.”

It would be naïve to assume that this decision might not precipitate an increase in applications to operate tattoo parlors in areas which currently prohibit them.

If cities, or counties, currently have such absolute prohibitions, it seems logical that the governing bodies might want to revise those regulations and adopt the concept of reasonably regulating tattoo establishments in conformance with this decision.  After all, absent a petition to, and an acceptance by, the United States Supreme Court, this decision is binding on all jurisdictions within the Ninth Circuit.

As it now stands, a total ban is unconstitutional but reasonable regulations regarding location, time and manner of operation, are all lawful and appropriate.  As the Court noted, legitimate concerns, such as safety concerns, can be adequately addressed through such regulations.

As we always emphasize, it is imperative that you seek advice and guidance from your agency’s designated legal counsel as you proceed.  Obtaining such guidance sooner, rather than later, is usually in everyone’s best interest.  If you wish to discuss this case in greater detail, please don’t hesitate to   contact me at (714) 446 – 1400 or via e-mail at mjm@jones-mayer.com.