Tattoos themselves have long been considered an obvious form of expression protected by the First Amendment. Until recently, however, those who actually create tattoos have often been denied their First Amendment rights based on the false presumption that the act of tattooing could be classified as expressive conduct, rather than pure speech or pure expression.
In September, 2010, that changed. The U.S. Ninth Circuit Court of Appeals struck down Hermosa Beach, California’s ban on tattoo parlors, stating that the ban was unconstitutional because it violated the First Amendment.
The First Amendment
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” The First Amendment to the U.S. Constitution.
The text of the First Amendment may seem simple enough, but its application has become quite complicated. It has been accepted that “speech” refers not only to the spoken word, but also to the written word, artwork, music, movies, and more.
Expressive Conduct vs. Pure Speech
Pure speech and activities which are considered purely expressive are given full First Amendment protection. Expressive conduct gets some First Amendment consideration, but can be restricted more easily.
Activities considered to be purely expressive, by the courts, include those which produce a form of pure speech. Pure speech includes, but is not limited to, artwork, writing, and music. Expressive conduct, on the other hand, is a symbolic action, such as flag burning.
Tattooing Inseparable from Tattoos
In the Hermosa Beach case the City claimed that tattooing was expressive conduct rather than a purely expressive act. The court disagreed, explaining that separating tattoos from tattooing is like trying to separate paintings from the act of painting.
In the September ruling the Ninth Circuit found that tattooing is a purely expressive activity. Judge Bybee wrote the opinion stating, “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.”
Judge Bybee, Judge Noonan, Johnny Anderson v. City of Hermosa Beach: Opinion, United States Court of Appeals for the Ninth Circuit.
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