By William W. Abbott
I am old enough to remember when tattoos or “tats,” were a sign of rebellion, not a sign of conformity, much less the subject of television advertisement for what brand of beer to buy. But as an attorney, even I miss the point as I view someone with an upper torso or a bald head full of ink that they are in fact, a walking manifestation of my First Amendment rights. As they say, the freedom of bad taste is the most important freedom of all. Fortunately, the significance of the First Amendment is not lost on the Ninth Circuit.
Although it may seem that tattoos are a World War II and later phenomena, tattoos have been part of evolving culture around the globe for thousands of years. To many in western culture, tats still have an outlaw air to them, and are not universally appreciated. Such is the view of the City of Hermosa Beach. Regulations for the City precluded the operation of tattoo parlors. In Anderson v. City of Hermosa Beach (2010) U.S. App. LEXIS 18838, Johnny Anderson, a tattooist operating in City of Los Angeles, desired to open a parlor in this beach city. In 2006, he filed an action against Hermosa Beach, but it was dismissed on the basis that he had not availed himself of City administrative procedures to determine whether or not the use might be allowed as similar to other uses permitted by the code. Following case dismissal, Anderson filed a request with the City for such a determination which the City denied in 2007. He sued the City under 42 U.S.C. § 1983 claim, alleging violation of the First and Fourteenth Amendments. The City successfully moved for summary judgment, arguing that tattooing was not a First Amendment protected activity. The district court reviewed the ordinance under the rational basis test, and on the basis of potential health risks, upheld the ban. Anderson appealed.
The Ninth Circuit reversed, finding that tattooing was a “purely expressive activity,” and was entitled to full First Amendment protection. Accordingly, the scope of City regulation was limited to reasonable “time, place and manner.” The Court then addressed and rejected each of the City’s arguments offered in justification of reasonable time, place and manner regulation. Perhaps the City’s best argument was based upon public health. Tattooing involves the injection of ink into a person’s skin. The required puncturing of the skin creates the potential for skin infection. State law requires every tattooist to register with County health departments. The County health department had one inspector, and not all establishments operating within the jurisdiction of the County had been inspected. As the County had only limited resources with which to inspect and regulate tattoo parlors for public health purposes, the City asserted that this was sufficient justification for an absolute ban. The Court held however, that the City failed to provide sufficient justification that it could not otherwise accommodate public health concerns while permitting a First Amendment protected activity. In other words, the ordinance was too broad. The City also argued that there were alternative means of communicating the same protected speech, such as printing on a tee shirt. The Court concluded however, that the permanent nature of the ink carried a different message, and that there were no alternative, equally effective communication vehicles.
The Ninth Circuit reversed the judgment in favor of the City, and ordered that Anderson’s motion for summary judgment be granted.
William W. Abbott is a partner at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.