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9th Cir: Tattoos Are Art Protected by the First Amendment

By Tanya Roth, Esq. | Last updated on

Today, tattoo artists are weeping tears of joy into their ink. On September 9, a three-judge panel of the 9th Circuit Court of Appeals handed down their decision in Anderson v. Hermosa Beach, which finds tattoos and tattooing are "forms of pure expression fully protected by the First Amendment."

Well, it is almost cause for tears, as the city has told the Los Angeles Times that it plans to appeal to the full 9th Circuit Court. But for today, it is a victory for tattoo artist and shop owner Johnny Anderson. As discussed in a post on FindLaw's Law and Daily Life, Anderson wished to relocate his shop, the "Yer Cheat'n Heart Tattoo" from Gardena, California, to the more upscale Hermosa Beach. However, the city of Hermosa Beach had an ordinance prohibiting all tattoo studios within the city. Anderson sued.

This was a question of first impression for the court, which means they covered new ground. The court based its decision that tattooing (and the business of tattooing) was protected by the First Amendment by finding that it is a "purely expressive activity." (Opinion, p. 10)

Here is how Johnny Anderson defines his art: "The choices made by both me and by the recipient involve consideration of color, light, shape, size, placement on the body, literal meaning, symbolic meaning, historical allusion, religious import, and emotional content." Writing for the court, Judge Bybee agreed saying, "A form of speech does not lose First Amendment protection based on the kind of surface it is applied to." (Opinion, p. 13)

Since tattooing is a form of speech and expression under the First Amendment, the city of Hermosa Beach must find the least restrictive means of pursing its valid interest in protecting the health and safety of its citizens. The court found a total ban on tattoo studios was not a reasonable "time, place and manner" restriction on this form of speech.

Lest you think the 9th Circuit is getting a bit too hip for its own good in defending the "pure art" of tattooing, let the judges put your mind at ease. While defending the expressive content of tattoos under the Constitution, the court also sighed, "We do not profess to understand the work of tattoo artists to the same degree as we know the finely wrought sketches of Leonardo da Vinci or Albrecht Dürer, but we can take judicial notice of the skill, artistry, and care that modern tattooists have demonstrated." (Opinion, p. 13) In other words, more Gluck, less Gaga.

The result? Don't look for a Kat Von D exhibit in the Los Angeles Museum of Modern Art anytime soon. But, baring a successful appeal by the city, you might look for a nice bit of ink from Johnny Anderson in Hermosa Beach, possibly in the commercial zone around Pacific Coast Highway and Aviation Boulevard.

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