Court Holds Tattooing To Be Fully Protected by the First Amendment

Don Ed Hardy flash on display at the De Young Museum in San Francisco. Prior to selling his soul to the devil/Christian Audigier, Don Ed Hardy turned down Yale to reinvent body art in America. Never forget, there is more to Ed Hardy than horrid t-shirts.

The majority of courts hold that tattooing is not fully protected by the First Amendment.

But not the Ninth Circuit!

Last week, tattoo artist and shop owner Johnny Anderson successfully challenged a ban against tattoo parlors in Hermosa Beach, California.

Anderson originally lost in the lower court.   The district court judge opined that the work of a tattoo artist “does not convey an idea or message discernible to an identifiable audience.”  You can find the opinion at this link.

The Ninth Circuit rejected that reasoning and instead concluded that tattooing is no different than putting pen to paper.  The Ninth Circuit’s opinion is here.

Ninth Circuit’s decision is a great read.  Judge Jay ByBee eloquently explains:

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 . . . . Thus, we have no difficulty holding that the tattooing process is entitled to the same First Amendment protection as the process of parading.

The WSJ quipped that based on this opinion it “sounds like Judge Bybee might be a tattoo-lover himself.”   Highly unlikely.  Judge ByBee, the author of the pro-tattoo opinion, is a devout Mormon.  And Mormons generally frown on tattooing because of the whole your-body-is-a-temple thing.  But see Jack Armstrong.

Judge ByBee, nevertheless, recognized that tattooing is expressive activity entitled to full First Amendment protection.  “[T]he 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,” said Judge Jay Bybee, writing for a unanimous panel of three Republican appointees.

Source:  How Appealing

Photo credit:  Marshall Astor – Food Pornographer

Bonus Video:


~ by siouxsielaw on September 16, 2010.

4 Responses to “Court Holds Tattooing To Be Fully Protected by the First Amendment”

  1. Kudos to Judge ByBee. This seems like a good example of a principled legal decision. Legalizing speech that you don’t agree with is tough to do.

  2. I wish tattoos would be NATIONALLY recognized as a First Amendment right for which you shouldn’t be denied a job for. I don’t have any tattoos, so it’s never happened to me. But still…

  3. […] to deserve [First Amendment] protection.” Anderson appealed the case to the Ninth Circuit.  Judge Jay Bybee, writing for a unanimous Republican panel, reversed the decision, stating, “the tattoo itself, […]

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