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Tattoos As Protected Speech

By Maggie Sicklinger [April 28th, 2011] 

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On a case of first impression, the Ninth Circuit decided that a municipal ban on tattoo parlors violates the First Amendment.  Anderson v. City of Hermosa Beach No. 08-56914  Johnny Anderson wanted to open a tattoo parlor but the municipal code of Hermosa Beach prohibited it.  Anderson submitted a declaration to the court stating that his tattoo designs are unique creative works of visual art and as such the municipal code is facially unconstitutional as violating his First and Fourteenth Amendment rights.  The district court found that tattoos are not communicative enough to be protected expression under the First Amendment because the customer has “ultimate control” over choosing the design and the tattoo artist does not convey “a message discernible to an identifiable audience.”  The Appeals court determined that tattooing is purely expressive activity entitled to full First Amendment protection.  Therefore, the municipal code must be reasonable as to time, place and manner. The court compared tattoos to pen and ink drawings, holding that the distinction in media has no significance in terms of constitutional protection.  Using the same analysis the court found that like writing or drawing on paper, tattooing is a process that cannot be separated from the expressive product; so the process of tattooing is also protected speech.  By applying strict scrutiny analysis to the time, place and reasonableness of the municipal code, the court found that it was not narrowly tailored enough to serve a significant government interest and was unconstitutional to the extent that it excluded tattoo parlors.

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