CRF Blog

Tattoos and the First Amendment

by Damon Huss

If you draw a picture on paper of, say, an eagle, no one would deny that you are engaged in some kind of artistic activity (even if you can’t draw that well). Moreover, art is free expression, protected by the First Amendment (within certain limitations, such as obscenity laws). If you draw that same picture of an eagle on someone’s arm in the form of a tattoo, however, those First Amendment protections are not so certain.

The Los Angeles Times reports today that Johnny Anderson, the proprietor and tattoo artist at Yer Cheat’n Heart tattoo parlor in Gardena, Calif., is testing whether tattoo art is constitutionally protected free expression. He wants to move his parlor to Hermosa Beach, Calif. There he expects his business to do better, since his store is presently “in a seedy neighborhood.”

The City of Hermosa’s zoning laws, however, effectively ban tattoo parlors throughout the entire city. The city says they are a public health problem, since the city would have to pay to inspect the parlors. The city also does not want to attract bikers and ex-felons, arguing that tattoos are popular among those groups. Anderson responds, “Everybody gets tattoos these days.”

He took his case to federal court in Los Angeles in 2008, but Hermosa won. U.S. District Judge Christina Snyder ruled that tattoos were “not sufficiently imbued with elements of communication” to merit constitutional protection shared by other art forms. A tattoo artist “provides a service” but is not the owner of the tattoo, Judge Snyder said. Anderson has now appealed his case to the Ninth Circuit Court of Appeals, where the case was argued earlier this month.

The case could set a precedent in First Amendment law. Other cases about tattoos have been decided. For example, a Second Circuit appeals court ruled that police officers do not have a First Amendment right to display tattoos while on the job. But the issue of whether the making of a tattoo is an artistic act or merely “a service” has yet to be finally decided. Whichever way the Ninth Circuit court rules, the case could make its way to the Supreme Court.