9th Circuit Court of Appeals Rules that Tattoos Are Constitutionally Protected Speech.

While doing the hard work of surfing blogs all over the internet (so you don’t have to) I noticed that Needles and Sins had a new post up about a ruling by the 9th Circuit Court of Appeals in the case of Johnny Anderson v. City of Hermosa Beach.

For those of you unfamiliar with the story I’ll let Marisa DiMattia of  Needles and Sins explain, as she’s a real-life tattooed lawyer.

“Last May, in our First Amendment & Tattoos post, we first mentioned the Appellate Court agreeing to review the case of Johnny Andersen of Yer Cheat’n Heart Tattoo against Hermosa Beach, CA. Johnny wanted to relocate to Hermosa Beach but was denied because zoning laws prohibited tattooing in the city. He sued in 2006 and lost because the lower court found that tattooing was a service and “‘not sufficiently imbued with elements of communication” to be protected as speech.”

Turns out the 9th Circuit Court of Appeals disagreed. From the ruling:

“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.”

but wait…there’s more!

“There appears to be little dispute that the tattoo itself is pure First Amendment “speech.” The Supreme Court has consistently held that “the Constitution looks beyond written or spoken words as mediums of expression.” […] We do not profess to understand the work of tattoo artists to the same degree as we know the finely wrought sketches of Leonardo da Vinci or Albrecht Durer, but we can take judicial notice of the skill, artistry, and care that modern tattooists have demonstrated.

Like music, tattooing is “one of the oldest forms of human expression,” as well as one of the world’s most universally practiced forms of artwork. And it has increased in prevalence and sophistication in recent years.
[…]
Most importantly, a permanent tattoo “often carries a message quite distinct” from displaying the same words or picture through some other medium, and “provide[s] information about the identity of the ‘speaker’.” A tattoo suggests that the bearer of the tattoo is highly committed to the message he is displaying: by permanently engrafting a phrase or image onto his skin, the bearer of the tattoo suggests that the phrase or image is so important to him that he has chosen to display the phrase or image every day for the remainder of his life…Finally, the pain involved in producing a permanent tattoo is significant to its bearer as well.
[…]
These elements are not present–or, at least, not nearly to the same degree–in the case of a temporary tattoo, a traditional canvas, or a Tshirt. Thus, we disagree with the City that “[t]here is nothing inherently or distinctly expressive about rendering . . . designs on the skin” using the ink-injection method.”

To read a full legal analysis of what this means do check out the article on Needles and Sins, Marisa does a great job of breaking down the implications of the ruling. For the most part this means that cities and counties do not have the right to ban tattooing, or prevent tattoo shops from opening based on discriminatory zoning laws.

And while this is a step in the right direction for tattoos as protected speech, it still won’t do much for you in the job market, as the courts have ruled repeatedly that companies have the right to enforce appearance at the workplace as long as they “don’t discriminate on the basis of religion, sex, race, color, or national origin under Title VII of the US Civil Rights Act.” Marisa of Needles and Sins has also written some great posts about the legality of Tattoos and Employment Discrimination here.

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~ by K. Ritcheson on September 10, 2010.

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