by Gary Taylor

Anderson v. City of Hermosa Beach (CA)
(Federal 9th Circuit Court of Appeals, September 9, 2010)

Anderson sought to establish a tattoo parlor in the City of Hermosa Beach (city), but the Hermosa Beach Municipal Code effectively bans tattoo parlors. Anderson sued the city alleging that the code provision is 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. Anderson appealed the decision to the 9th Circuit Court of Appeals.

Because of the potential health concerns implicated by tattooing, the State of California requires “[e]very person engaged in the business of tattooing . . . [to] register . . . with the county health department of the county in which that business is conducted.”   The city lies within the County of Los Angeles (County). There are nearly 300 tattoo establishments in the County and over 850 tattooists. However, the County has only one inspector monitoring the parlors. Many tattoo parlors have never been inspected and are subject to no regulations other than the requirement to register with the County. Ostensibly because of the health concerns associated with tattooing and the lack of adequate County inspection the Hermosa Beach Municipal Code does not list tattoo parlors as a permitted use in any district. Indeed, on November 20, 2007, the City’s Planning Commission adopted a resolution against amending the Code to permit tattoo parlors.

The Court of Appeals began its analysis with a recognition that while pure 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,” (obscenity, conduct intending to express an idea is constitutionally protected only if it is “sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments,” which means that “[a]n intent to convey a particularized message [is] present, and . . . the likelihood [is] great that the message w[ill] be understood by those who view it.” Even where conduct expressive of an idea is protected by the First Amendment, “[t]he government generally has a freer hand in restricting expressive conduct than it has in restricting the written or spoken word.”  Accordingly, the Court’s task was to determine whether tattooing is (1) purely expressive activity or (2) conduct that merely contains an expressive component.

The Court concluded that the city’s ban on tattoo parlors was facially unconstitutional because tattooing is purely expressive activity, rather than conduct expressive of an idea.  “Tattoos are generally composed of words, realistic or abstract images, symbols, or a combination of these, all of which are forms of pure expression that are entitled to full First Amendment protection.”  It noted that the principal difference between a tattoo and a pen-and-ink drawing that would unquestionably be considered purely expressive, is that a tattoo is engrafted onto a person’s skin rather than drawn on paper. This distinction has no significance in terms of the constitutional protection afforded the tattoo.

The Court further found that the tattooing process (which is prevented from occurring because of the ban on tattoo parlors) is similarly purely expressive activity.   “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. Although writing and painting can be reduced to their constituent acts, and thus described as conduct, we have not attempted to disconnect the end product from the act of creation.

Finally, the Court concluded that the business of tattooing qualifies as purely expressive activity rather than conduct with an expressive component, and is therefore entitled to full constitutional protection.  It cited cases that established that “the degree of First Amendment protection is not diminished merely because the protected expression is sold rather than given away.”

Having concluded that the tattoo, the tattooing process, and the business of tattooing are purely expressive activities, the Court then considered whether the city’s total ban on tattoo parlors was a reasonable time, place and manner restriction.  The Court noted particular concern with laws that foreclose an entire medium of expression, because “by eliminating a common means of speaking, such measures can suppress too much speech.” The Court concluded that the total ban was substantially broader than necessary to achieve the city’s significant health and safety interests, and it entirely foreclosed a unique and important method of expression.