Posted by: Patricia Salkin | October 2, 2010

Ninth Circuit Court of Appeals Finds Municipal Ban on Tattoo Parlors Violates First Amendment

Anderson sought to establish a tattoo parlor in the City of Hermosa Beach, but the City Code effectively banned tattoo parlors by not including them in the zoning of permitted businesses.  Tattooing, according to the Centers for Disease Control and Prevention, and the Food and Drug Administration, could have adverse health implications (the transmission of hepatitis, syphilis, tuberculosis, leprosy, and HIV), and because of this, the State of California imposed certain requirements on tattooing businesses.  After Anderson’s request for the City’s permission to open a tattoo business was denied, he brought a Section 1983 suit alleging that the ban was facially unconstitutional under the First and Fourteenth Amendments.  The parties filed cross-motions for summary judgment, and the district court denied Anderson’s motion and granted the City’s motion. It found that tattooing was not protected expression under the First Amendment because, although it was non-verbal conduct expressive of an idea, it was insufficiently “imbued with the elements of communication” to receive First Amendment protection.  Applying rational basis review to the ordinance, the court held that given the health risks “inherent in operating tattoo parlors, . . . the City has a rational basis for prohibiting tattoo parlors.” Anderson appealed. 

The Ninth Circuit began by deciding that tattooing was purely expressive activity, more akin to writing, than just conduct potentially expressive of an idea.  As such, it was entitled to full First Amendment protection.  The Court found that tattooing was a process like writing words or drawing a picture, except that it was done on a person’s skin, and, as with writing or painting, the tattooing process was inextricably intertwined with the purely expressive product.  The fact that the City’s ban related to tattooing businesses rather than the tattooing process itself did not affect whether the activity regulated was protected by the First Amendment: the sale or business of tattooing was entitled to full constitutional protection, and the City’s regulation would be constitutional only if it was a reasonable “time, place, or manner” restriction on protected speech. 

Anderson did not dispute that the City had a significant interest in regulating tattooing because of the health and safety concerns; rather, he argued that the regulation was substantially broader than needed because the interests could be met through sanitary and sterilization requirements. The court agreed. Further, the ban “completely foreclosed” a venerable and unique means of communication and according, the ban failed the time, place or manner analysis. 

 Anderson v City of Hermosa Beach, 2010 WL  3504298 (9th Cir. 9/9/2010)

The opinion can be accessed at: http://www.ca9.uscourts.gov/datastore/opinions/2010/09/09/08-56914.pdf 

This abstract is edited from the original appearing in the IMLA E-News, 9/22/2010. 

For more information about IMLA, visit: www.imla.org


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