Ninth Circuit Strikes Down City Ordinance Banning Tattoo Parlors

The Ninth Circuit has held a municipal ban on tattoo parlors unconstitutional. In Anderson v. City of Hermosa Beach, the court ruled that "tattooing is purely expressive activity fully protective by the First Amendment, and that a total ban on such activity is not a reasonable "time, place, or manner" restriction.

Our first task is to determine whether tattooing is (1) purely expressive activity or (2) conduct that merely contains an expressive component. In other words, we must determine whether tattooing is more akin to writing (an example of purely expressive activity) or burning a draft card (an example of conduct that can be used to express an idea but does not necessarily do so). ... If tattooing is purely expressive activity, then it is entitled to full First Amendment protection and the City's regulation is constitutional only if it is a reasonable "time, place, or manner" restriction on protected speech. If, on the other hand, tattooing is merely conduct with an expressive component, then it is entitled to constitutional protection only if it is "sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments."  If so, then the constitutionality of the ordinance is governed by the O'Brien test. If tattooing is conduct that is not "sufficiently imbued with elements of communication," id., then we must determine only whether the City's zoning regulation is rationally related to a legitimate governmental interest, see Schad v. Borough of Mount Ephraim, 452 U.S. 61, 68, 101 S. Ct. 2176, 68 L. Ed. 2d 671 (1981).

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We hold that Hermosa Beach Municipal Code § 17.06.070 is facially unconstitutional to the extent that it excludes tattoo parlors. First, we hold that tattooing is purely expressive activity rather than conduct expressive of an idea, and is thus entitled to full First Amendment protection without any need to resort to Spence's "sufficiently imbued" test. Second, we hold that the City's total ban on tattooing is not a constitutional restriction on protected expression because it is not a reasonable "time, place, or manner" restriction.

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The district court assumed that the process of tattooing is at most "non-verbal conduct expressive of an idea" rather than speech itself. This determination is consistent with cases from other courts that have emphasized the distinction between the product and the process of tattooing and have held that the physical process of tattooing is conduct subject to Spence's "sufficiently imbued" test. See, e.g., Hold Fast Tattoo, 580 F. Supp. 2d at 660 (analyzing tattooing under Spence's framework based on the premise that "[t]he act of tattooing is one step removed from the actual expressive conduct"); Yurkew, 495 F. Supp. at 1253-54 (regardless of "whether . . . the image conveyed by the tattoo[ ] is an art form or amounts to art," "the process of tattooing is undeniably conduct" that is subject to the Spence test). These courts then held that tattooing fails the Spence test. See, e.g., Hold Fast Tattoo, 580 F. Supp. 2d at 660 (holding that "[t]he act of tattooing . . . itself is not intended to convey a particularized message"); Yurkew, 495 F. Supp. at 1253-54 (holding that "the actual process of tattooing is not sufficiently communicative" to come within the First Amendment, because "there has been no showing that the normal observer . . . would regard the process of injecting dye into a person's skin through the use of needles as communicative"); White, 560 S.E.2d at 423 ("Unlike burning [a] flag, the process of injecting dye to create [a] tattoo is not sufficiently communicative to warrant [First Amendment] protection[ ]."). Similarly, the City argues that "[t]he process of injecting dye into a person's skin through the use of needles," in contrast with "any message conveyed by the tattoo image, is non-expressive conduct that must, in order to acquire First Amendment protection [under Spence], carry with it an intent to convey a message that will be understood by those who viewed it."

For the reasons set forth below, we disagree with the basic premise underlying the conclusions of both the City and the lower courts that have considered this issue. The tattoo itself, the process of tattooing, and even the business of tattooing are not expressive conduct but purely expressive activity fully protected by the First Amendment.

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The principal difference between a tattoo and, for example, a pen-and-ink drawing, 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; a form of speech does not lose First Amendment protection based on the kind of surface it is applied to. It is true that the nature of the surface to which a tattoo is applied and the procedure by which the tattoo is created implicate important health and safety concerns that may not be present in other visual arts, but this consideration is relevant to the governmental interest potentially justifying a restriction on protected speech, not to whether the speech is constitutionally protected. We have little difficulty recognizing that a tattoo is a form of pure expression entitled to full constitutional protection.

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Our next task is to determine whether the process of tattooing is purely expressive activity. We hold that it is. Spence's "sufficiently imbued" test has been reserved for processes that do not produce pure expression but rather produce symbolic conduct that, "on its face, does not necessarily convey a message." ... Burning a flag, see Johnson, 491 U.S. at 411, burning a draft card, see O'Brien, 391 U.S. at 370, and wearing a black armband, see Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 505-06, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969), can be done for reasons having nothing to do with any expression, and so require an interpretive step to determine the expressive elements of these processes.

However, 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. Thus, we have not drawn a hard line between the essays John Peter Zenger published and the act of setting the type. ... The process of expression through a medium has never been thought so distinct from the expression itself that we could disaggregate Picasso from his brushes and canvas, or that we could value Beethoven without the benefit of strings and woodwinds. In other words, we have never seriously questioned that the processes of writing words down on paper, painting a picture, and playing an instrument are purely expressive activities entitled to full First Amendment protection.

Tattooing is a process like writing words down or drawing a picture except that it is performed on a person's skin. As with putting a pen to paper, the process of tattooing is not intended to "symbolize" anything. Rather, the entire purpose of tattooing is to produce the tattoo, and the tattoo cannot be created without the tattooing process any more than the Declaration of Independence could have been created without a goose quill, foolscap, and ink. Thus, as with writing or painting, the tattooing process is inextricably intertwined with the purely expressive product (the tattoo), and is itself entitled to full First Amendment protection.

We are further persuaded by the fact that the process of tattooing is more akin to traditional modes of expression (like writing) than the process involved in producing a parade, which the Supreme Court has held cannot be meaningfully separated from the parade's expressive product in terms of the constitutional protection afforded. See Hurley, 515 U.S. at 568 (holding that "[p]arades are . . . a form of expression, not just motion," and noting "the inherent expressiveness of marching"). Thus, we have no difficulty holding that the tattooing process is entitled to the same First Amendment protection as the process of parading.

Moreover, it makes no difference whether or not, as the district court determined, "the customer has [the] ultimate control over which design she wants tattooed on her skin." The fact that both the tattooist and the person receiving the tattoo contribute to the creative process or that the tattooist, as Anderson put it, "provide[s] a service," does not make the tattooing process any less expressive activity, because there is no dispute that the tattooist applies his creative talents as well. Under the district court's logic, the First Amendment would not protect the process of writing most newspaper articles-- after all, writers of such articles are usually assigned particular stories by their editors, and the editors generally have the last word on what content will appear in the newspaper. Nor would the First Amendment protect painting by commission, such as Michelangelo's painting of the Sistine Chapel. As with all collaborative creative processes, both the tattooist and the person receiving the tattoo are engaged in expressive activity.

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Finally, the fact that the City's ban relates to tattooing businesses rather than the tattooing process itself does not affect whether the activity regulated is protected by the First Amendment. In City of Sparks, we held that even "an artist's sale of his original artwork constitutes speech protected under the First Amendment." ... We first emphasized the inherent expressiveness of the painting itself--in particular, that a painting "conveys [the artist's] sense of form, topic, and perspective[,]. . . may express a clear social position . . . [or] the artist's vision of movement and color, . . . [and] holds potential to 'affect public attitudes' by spurring thoughtful reflection in and discussion among its viewers." Id. at 956 (citation omitted) (quoting Joseph Burstyn, 343 U.S. at 501). We then rejected "the city's argument that [plaintiff's] sale of his paintings removes them from the ambit of protected expression." Id.; see also City of Lakewood v. Plain Dealer Publ'g. Co., 486 U.S. 750, 756 n.5, 108 S. Ct. 2138, 100 L. Ed. 2d 771 (1988).

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Even if the City's regulation were narrowly tailored to serve its health and safety interests, a reasonable "time, place, or manner" restriction on protected speech must also "leave open ample alternative channels for communication of the information." ... The City argues that, although its regulation restricts tattooists' ability to apply images to human skin via the injection of ink, there are alternative means available for applying the exact same words, images, and symbols to skin, such as airbrushing or the use of natural henna paste to create temporary tattoos. The City also points out that the tattooist could render his designs "on a traditional canvas  or other media," such as a T-shirt. In other words, the City believes that "[t]here is nothing inherently or distinctly expressive about rendering . . . designs on the skin" using the ink-injection method.

We disagree. In City of Ladue, the defendant city made an argument similar to the one the City makes here. The City argued that its ban on signs on private property was "a mere regulation of the time, place, or manner of speech because residents remain free to convey their desired messages by other means, such as hand-held signs, letters, handbills, flyers, telephone calls, newspaper advertisements, bumper stickers, speeches, and neighborhood or community meetings." ...The Supreme Court was

not persuaded that adequate substitutes exist for the important medium of speech that Ladue has closed off. . . . Displaying a sign from one's own residence often carries a message quite distinct from placing the same sign someplace else, or conveying the same text or picture by other means. Precisely because of their location, such signs provide information about the identity of the 'speaker[,]' . . . [which] is an important component of many attempts to persuade.

Id. (emphasis added). The Court held the ordinance unconstitutional because the city had "completely foreclosed a venerable means of communication that is both unique and important."...

As in City of Ladue, the City of Hermosa Beach has "completely foreclosed a venerable means of communication that is both unique and important." ... Like music, tattooing is "one of the oldest forms of human expression," Ward, 491 U.S. at 790, as well as one of the world's most universally practiced forms of artwork. 

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In sum, we hold that the tattoo itself, the process of tattooing, and the business of tattooing are forms of pure expression fully protected by the First Amendment. We further hold that the City's total ban on tattoo parlors in Hermosa Beach is not a reasonable "time, place, or manner" restriction because it is substantially broader than necessary to achieve the City's significant health and safety interests and because it entirely forecloses a unique and important method of expression. Moreover, no genuine issue of material fact exists with respect to the constitutionality of the regulation. Thus, we hold that Hermosa Beach Municipal Code § 17.06.070 is facially unconstitutional to the extent that it excludes tattoo parlors, and we reverse the district court's order granting summary judgment in favor of the City and remand with instructions to grant Anderson's motion for summary judgment and enjoin the City to include tattoo parlors in its zoning regulations.