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Photo of Johnny Anderson by Allen J. Schaben for Los
Angeles Times

In 2006, Johnny Anderson of Yer Cheat’n Heart Tattoo wanted to move his shop to a better location and decided on Hermosa Beach, CA; however, he was denied because zoning laws prohibited tattooing in the city (not as an outright ban but by not recognizing it as a permissible use). Johnny fought back, suing in federal court in LA claiming that his First Amendment rights were violated and that tattooing is protected artistic expression.

He lost that case because the court found that tattooing was a service and “‘not sufficiently imbued with elements
of communication” to be protected as speech.

But Johnny didn’t give up. He appealed to the 9th Circuit Court of Appeals, which recently heard the case, and as the Los
Angeles Times reports, “some constitutional law scholars predict the outcome could be different
in what would be the first–and potentially precedent-setting–federal
appellate decision on whether the tattoo artist is engaged in 1st
Amendment-protected activity when designing and applying custom tattoos.”

This means that if Johnny wins, similar oppressive zoning laws–which are some of the biggest obstacles tattooists must overcome in opening up shop across the US–could be challenged with greater success; even better, local officials may think twice before drafting/amending laws to keep tattoo shops out of their districts.

Other tattooists have challenged tattoo bans on other grounds and have won, but in my opinion, this constitutional question is the most interesting and far reaching in its implications:

Does the First Amendment right to free expression protect tattooing?

Here’s what one scholar said to the LA Times:

“If it’s art, it’s art, and art gets protection,” UC Berkeley law professor and 1st Amendment expert Jesse Choper said of the debate over whether tattoos are protected speech. Hermosa Beach might have a chance of prevailing with the 9th Circuit judges, he said, if it imposed
regulations limiting the practice to certain parts of the city or required the involvement of medical professionals. But he said he doubts its total ban on tattoo parlors will pass constitutional review.

The state-wide Massachusetts ban on tattooing was deemed unconstitutional by Judge Barbara Rouse in 2000, who ruled on a civil case brought by a tattooist and the ACLU challenging the ban. In her opinion, Judge Rouse said that tattooing is an ancient art form practiced in almost every culture. She added:

“Persons obtain tattoos to demonstrate commitment to other persons, to institutions, to religious beliefs, and to political and personal beliefs. The medium on which the drawn image appears should not be relevant when determining whether something is ‘speech’; the tattoo itself is symbolic speech deserving of First Amendment protection.”

[...]

“The current ban on tattooing has promoted an underground tattoo
industry with no controls which, in turn, has increased health risks.”

Read more on the Massachusetts tattoo battle in this
New Yorker article.

That was a state court case, however, and limited in its impact on other bans outside Mass. When a case challenging South Carolina’s tattoo ban, White v. South Carolina, was appealed to the US Supreme Court, the highest court in the country refused to hear it (even with Ken Starr arguing it). The tattoo ban was eventually overturned in 2004. [More on that case here and see the S.C. appellate case here.]

FYI: The last state ban to be overturned was Oklahoma in 2006.

Now, with the 9th Circuit Federal Court of Appeals looking into tattoo protections under the constitution, these local bans might also brought down, and just as important, another court will find tattooing as an art form.

Will keep on eye on it and let you know how it goes.

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UPDATE: More legal analysis on HuffPo

Original post: First Amendment & Tattoos