The Ninth Circuit Court of Appeals ruled that an anti-tattoo parlor law in Hermosa Beach near Los Angeles ran afoul of the First Amendment guarantee of free expression. The ruling stated that cities can attain their goal of protecting the public through regulating rather than banning. -db
San Francisco Chronicle
September 10, 2010
By Bob Egelko
HERMOSA BEACH, LOS ANGELES COUNTY — To some, they’re body art. To others, they’re hazards to health, morals and good taste.
But to a federal appeals court, tattoos are constitutionally protected free expression, and a city has no more right to ban tattoo parlors than to outlaw bookstores or newsstands.
“Tattooing is a process like writing words down or drawing a picture, except that it is performed on a person’s skin,” the Ninth U.S. Circuit Court of Appeals in San Francisco said Thursday in striking down an anti-tattoo parlor law from the Los Angeles suburb of Hermosa Beach.
“A form of speech does not lose First Amendment protection based on the kind of surface it is applied to,” said Judge Jay Bybee, writing for a unanimous panel of three Republican appointees.
He described tattooing as “one of the oldest forms of human expression” and “one of the world’s most universally practiced forms of artwork.”
The lawyer for a tattooist who challenged the Hermosa Beach ban said the ruling came as a pleasant surprise, because state courts and lower federal courts that have considered the issue since 1978 have upheld local prohibitions on tattoo parlors. This was the first federal appeals court to consider the subject.
“It’s become very artistic,” said the attorney, Robert Moest. But artistic merit is legally irrelevant, he added, because “the Constitution doesn’t distinguish between Picasso and paint by numbers.”
Moest said the ruling, if it stands, will overturn similar ordinances in many small cities in Los Angeles County. Local governments could still pass zoning restrictions and charge license fees to fund health inspections of tattoo parlors, which generally operate safely and have a financial incentive to do so, he said.
Officials in Hermosa Beach, a community of 30,000, said they were disappointed by the ruling and would refer it to the City Council to consider an appeal.
The ban was adopted because of “the potential health hazards caused by unsanitary tattoo practices,” said City Attorney Michael Jenkins.
The Bay Area has been more receptive to tattooists. The online rating service Yelp has evaluations of 76 commercial establishments in San Francisco alone. Alameda County adopted tattooing regulations in 2009 for parlors everywhere in the county except Berkeley, which has its own rules.
“You have to be creative in order to make it look good,” said Tanja Nixx, a professional tattooist since 1995. She owns a North Beach parlor, Lyle Tuttle Tattooing, which has operated in San Francisco since 1960.
Although many customers come in with precise instructions for a symbol or lettering, she said, “your best bet is to choose a style you like, choose an artist whose work you like and let them have creative freedom. That’s how I have gotten my best art.”
A federal judge in Los Angeles took a different view of the profession in a 2008 ruling upholding Hermosa Beach’s denial of a license to Johnny Anderson, who had another parlor in Los Angeles. Because the customer has final control over the design, Judge Christina Snyder reasoned, tattoo artists convey no message of their own, lack First Amendment protection and can be excluded as a public health risk.
But the appeals court said the Constitution protects “collaborative creative processes” like newspaper reporting, which is assigned and reviewed by editors, or tattooing.
A city can address its health concerns by regulating, rather than banning, tattoo parlors, Bybee said.
He also rejected Hermosa Beach’s argument that its ordinance did not repress free expression because tattooists could still express themselves by using airbrushes or paste to create temporary images.
A lasting tattoo is a different form of expression, indicating that its bearer is “highly committed to the message,” prepared to suffer pain to receive it and willing to display it for life, Bybee said.
“Those elements,” he said, “are not present – or, at least, not nearly to the same degree – in the case of a temporary tattoo, a traditional canvas or a T-shirt.”
Read the ruling
The court’s ruling can be read at links.sfgate.com/ZKGU.
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