Marked for Life

Constitutionally protected tattoos

“The tattoo designs that are applied by me are individual and unique creative works of visual art,” the tattoo artist Johnny Anderson claimed in a 2006 lawsuit. They are therefore constitutionally protected speech, he argued, so the courts should strike down a ban on tattoo parlors within the city limits of Hermosa Beach, California.

In September a unanimous three-judge panel of the U.S. Court of Appeals for the 9th Circuit agreed, holding that “the tattoo itself, the process of tattooing, and the business of tattooing are forms of pure expression fully protected by the First Amendment.” It’s the highest-profile victory yet in the tattoo trade’s long battle against the regulatory state.

New York City, where the electric tattoo machine was invented and patented in 1891, legalized the practice in 1997, lifting a 36-year-old ban imposed after tattooing was falsely linked to a hepatitis B scare. Massachusetts legalized the practice in 2000 after state Superior Court Justice Barbara Rouse struck down a similar ban. Unlike previous precedents on the topic of tattooed speech, the 9th Circuit’s ruling limits state action from Alaska to Arizona and is likely to influence other jurisdictions around the country. 

Damon W. Root is an associate editor at reason.

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  • ||

    Ban tattoo parlors? They couldn't come up with an acceptable regulatory/licensing scheme, I guess.

    Up Next: Will piercing remain legal/unlicensed?

  • ||

    lifting a 36-year-old ban imposed after tattooing was falsely linked to a hepatitis B scare

    OMFG, BAN TATTOOS!!!! HOW ELSE CAN I AVOID HEP-B?!?!?!? It's not like I can control whether or not I get a tattoo!

  • ||

    Which gives me an idea about my chewing gum ban: what transmittable disease could we link gum?

    Follow-up Question: who do you think would fund my study linking gum to this disease?

  • Realist||

    Call it gum disease. The National Dental Organization.

  • Clancy||

    "what transmittable disease could we link gum?"

    Mono.

  • ||

    If gums are outlawed, only outlaws will have gums.

  • cynical||

    CSPI

  • ||

    SHIT, how I didn't come up with CSPI.....apparently I'm retarded today.

  • ||

    Which gives me an idea about my chewing gum ban: what transmittable disease could we link gum?

    Hoof and mouth?

  • ||

    Hoof and Mouth? Is that what you get when you chew gum that someone has stepped on?

  • Nancy Pelosi||

    My swastika tramp stamp is protected speech, bitches!

  • Calm down, Nancy||

    No one wants to remove your swastika.

  • Barely Suppressed Rage||

    And we sure as shit don't want to see the nasty thing either.

  • ||

    No one wants to remove even think about your swastika.

  • Barney The Frank||

    Speak for yourself.

  • Barely Suppressed Rage||

    Very recent local story here -

    Guy applies for opening a tattoo parlor. Board of Zoning Approval uniminously approves. County Supervisors have to approve; he thinks he's good to go, because no indication of negative vibes. He's already invested ten thousand bucks or more - he opened the store front and was selling tattoo-related stuff, but was not actually doing tattoos yet, because he needed approval for that.

    Public comment - some neighbors say they don't want a tattoo parlor there - it's an industrial area near the train tracks, but it might ruin the neighborhood feel, because of all the druggies and gang members that will be hanging out getting tattoos.

    End of story: the guy gives up, sells off the stuff he had been selling, and figures he's lost $10,000.

    Here's a short article from the local paper about it.

    Here is a very good editorial from the same paper, pointing out the absurdity of the situation.

  • ||

    The real tyranny is in local government. I wish libertarians would get off their D.C. fixation and start focusing on the shit that happens at home.

  • ||

    Local tyranny can't be adressed adequately when Washington is busy trying to exert its authority on all levels of gov't?

  • Colonel_Angus||

    Fuck zoning.

  • Old Bull Lee||

    We had a similar situation in WV - and the existing tattoo parlors were in on it too, trying to keep the competition down.

  • ||

    True fact:

    The practice of medicine is so broadly defined for licensing purposes in many states that a specific carve-out for tattoos and piercing has to be included so that people who don't have MDs can pierce your ears and give you that bitchin' tatt.

  • Barney The Frank||

    Speak for yourself.

  • Tim||

    Waiting for the lawsuit involving the Federal worker with the ten commandments tattoed on him.

  • Larry King||

    That reminds me of the first interview I ever gave:

    So tell me, Moses, why only ten commendments?

  • Barely Suppressed Rage||

    There were 15, but he dropped one of the tablets and it broke.

    True story. I saw it in a movie.

  • Moses||

    The Lord Jehovah gives you these 15 (crack) these Ten Commandments.

  • ||

    Watch the movie Larry, it was supposed to be 15, but you know how these things go awry, right?

  • Raven Nation||

    I find this hard to believe: if the state was involved and it was supposed to be 15, we would have ended up with about 27 and half of those would have had sub-clauses.

  • ||

    #5: "Honor thy Mother and thy Father, but let no entity demand a higher honor than that of which The State is divinely due."

  • ||

    #8: "Thou shalt not bear false witness against thy neighbour unless thou wishes to be a narc and see a kick ass no-knock SWAT raid."

  • PIL||

    I do wonder if people who get tattoos on their faces are hands are going to do when they find out the business world discriminates against them? Will they become the next protected class? God helps us. As I see it, you have the right to get a tattoo, you do not have the right to get hired if you do.
    http://politicallyincorrectlib.....press.com/

  • The Gobbler||

    I am aquanted with several people who have face tatts and this will never be a problem for them because they will never seek a regular job. They are artists, musicians and tattoo artists. And some of the women are damn sexy.

  • PIL||

    Remember what's his name who cheated on Sandra Bullock? Well, the woman he cheated him was full of tattoos, damn sexy? I don't think so, then again, "sexy" is subjective.

  • Brett L||

    My brother's got them on his hands. He's a GM for a restaurant in a chain brand. Doesn't seem to have affected his promotion rate.

  • PIL||

    You think your brother could get a GM job at a fancy restaurant, the Waldorft-Astoria, a fancy cruise, etc? Either way, I think it's stupid to get tattoos, and yes, as a libertarian I believe you should be free to be stupid.

  • BakedPenguin||

    While I'm in general agreement with your point, I think Brett's is valid, too. Depending on the company, the job, and the tat, it really doesn't matter the way it would have 20 years ago. Especially small hand tattoos.

    Admittedly, you're probably never going to work as an au pair if you look like John Candy's "Harry's Discount Sex Shop" character. But as Gobby pointed out, if you look like that, it's probably not the job you want.

  • Mensan||

    As I see it, you have the right to get a tattoo, you do not have the right to get hired if you do.

    FTFY; the tattoos are irrelevant.

  • Tat This||

    Great decision for all the wrong reasons. Applying tattoos is a protected activity, but smoking cigarettes in your own place of business isn't? Selling hamburgers with toys in the bag isn't? Because these activities are not forms of "expression"? Unfortunately, this case does nothing for property-rights protections, which continue to be eroded.

  • Colonel_Angus||

    I see no problem with considering things like that as expression.

  • ||

    Sure, and Libertarians also think a business should be allowed to hire/fire whoever they want, or have control over who patronizes their business. Really doesn't matter what we think though, since we're all just a bunch of greedy, amoral, racists.

  • Tat This||

    We've gotten to the point in this nation where we're pleased as Punch when our government dispenses favors and calls them "expression" rights. This isn't a victory. Property rights, as a concept, loses a little more ground. Without a clear and objective definition of property rights, all other rights are imperiled, this particular "victory" notwithstanding.

  • EscapedWestOfTheBigMuddy||

    With monocles. That's what really does it.

  • Predicador||

    Could putting whatever price tag I want to put on stuff be considered 'expression'?

  • Steve||

    It's the same stupidity of calling table dances "expression."

    It belongs to you (your body, your nightclub, etc...,) outside of (minimal) zoning laws, you should be left alone.

  • Robert||

    But if you have a line of constitutional argument that gets more favorable treatment, why not go for it?

  • Michael Moore||

    I'm all for banning happy meals for everyone but MEEEEE!

  • Mickey D's||

    We're working up a Bitter, Self-Righteous Meal just for you, Mike.

  • PIL||

    Great point, it's specially shocking that the tobacco haters are going after e-cigarrettes, which are cigarrettes without tobacco, you simply inhale water vapor that may or may not have nicotine in it (depending on what you buy).

    This is all the fault of progressives, yes, conservatives may be uptight about porn and strip bars, but it's progressives that want to regulate every aspect of your life because they think you're too stupid to think for yourself. It's the We Know Better party.

  • ||

    in king county, WA ... the leftwing nannystate assholes are banning e-cigs in the same places they banned cigs DESPITE the fact that they don't even make any 2nd hand smoke (their alleged reason for banning cigs). it's not about 2nd hand smoke. it's about control. just like w/guns.

  • Robert||

    I've seen a lot of bogus distinctions, but not here. A tattoo is a work of art made one at a time, while hardly anybody smokes just to blow smoke rings, and toys that go with hamburgers are stamped out or blow molded copies of already-existing cartoon characters. They're not treated as property rights cases; expression is given separate, special treatment in state & federal constitutions.

  • Anomalous||

    I can't think of anyone whose appearance was improved by a tattoo. That said, it's your right to do so, and the state should stay out of it.

  • DADIODADDY||

    maybe "stupid" in capitol letters across your forehead?

  • ||

    Why is Anomalous stupid, because he thinks tattoos are tasteless, vulgar and ugly like I do? But I have no problem with the state regulating a business of making them, just like you have to run a printing plant for books in certain places with certain safety, zoning & environmental rules & regs

  • Some Guy||

    ---"Why is Anomalous stupid, because he thinks tattoos are tasteless, vulgar and ugly like I do?"

    I think the reference was to a tattoo of "stupid" on the forehead (face tatt), not to Anomalous.

  • ||

    Tattooing gave Michael Jackson his lips back.

  • ||

    Continued stupidity..anyone claiming that there is such a thing as constitutional rights is an idiot.

    1) Everyone has rights regardless of any constitution.

    2) The US constitution was an agreement limited to certain parties and for the benefit of those parties, not for "the people" as claimed.

    3) Supposing that it really was the "the people" those powers granted were just that..granted, and when Lincoln and the congress violated that agreement and forcibly extracted powers from the states, the constitution even between those parties purportedly agreeing to it, was then no longer valid between those parties, as power was no longer something delegated, but something taken.

    4)The 1st amendment and really the freedom of the press and speech are often distorted into a privilege for people to force their "art" or expression on others. Any good libertarian would understand that expression is not something protected, as it implies a right to force others in public (not restricting a right to one's own property) to be forced to view or hear things one has not consented to. One may be as vulgar as one wishes on one's property, or where others have consented to such, but in public I have a right to not hear or see someone else's crap. You think differently? Meet me out back asswipe.

    Freedom of speech and the press means that we are free from others interfering with our ability to communicate with others, not a right to express ourselves to anyone we wish, for then that person is forced to have that expression pushed on him.

    Oh sorry, instead of being rude fcks in public, people might actually have to be civil and receive leave of others to "express" themselves, instead of just being allowed to do what they want one another's property.

  • Tat This||

    anyone claiming that there is such a thing as constitutional rights is an idiot.

    You begin your argument with an ad hominem pre-emptive strike and then you expect me to take you seriously? Sorry.

  • ||

    Don't care whether you do or don't. I will comment how convenient it is to dismiss someone's argument without really concerning oneself whether or not truth is being presented.

    Perhaps, my response is not the best, but the fact is to argue constitutionality over anything is stupid, and yes for the reasons I gave above, which are not the only ones.

    Frankly Mr. Root comes across to me as another statist with his deference to something that was discarded long ago and limited even then to properly protect rights. Albeit his deference is not to the extent of most conservatives or liberals, or fraudulent libertarians who really want a government or lack of government to be able to whatever silly crap they want wherever regardless of whether they are violating someone else's rights.

    You want to be lewd all the time, stay in your damn house! Sure I make off color jokes or some such, but I don't do that to strangers, but only where I know I am among friends or colleagues where it's okay. This is why I get of this non-existent right to expression, it doesn't exist. To express oneself there must be an audience, and for those truly concerned with rights that audience must be willing to take in that expression.

  • Jim||

    You have violated my right to go on the internet and not have to read the words "fuck" and "asswipe". My lawyer will be in touch.

  • Barely Suppressed Rage||

    I have a right to not hear or see someone else's crap. You think differently? Meet me out back asswipe

    Where does this purported right come from?

    And if someone disagrees, your answer is to threaten to beat them up?

    Fucking genius, you are.

  • Kam||

    Nothing looks more stupid than tattoos on a haole, especially the ones with Kanji characters that the wearer thinks mean something they don't (one popular set of characters translates roughly to "gullible asshole" and another is "I'm an idiot").

    That said, the government has no business denying gullible haoles the right to wear signs warning that they are stupid.

  • ||

    So tattoos are cool when Polynesians get them but not whites. Though I agree, when I see some moron with some Chinese character on his neck, I always felt it prolly meant, "This person is a gullible degenerate" I associate tattoos with criminals, junkies, and other feeble minded narcissists

  • ||

    There's this bar I hang out in here in Dallas. There must be 10-20 tattoo parlors within a one-mile radius of the place, starting with the one next door.

  • ||

    Hmm, I had never really thought of that connection..smart MFs, get the idiots lubed up and coming in to do something they may or may not otherwise. Time to start looking for a storefront to lease.

  • Tat This||

    Tats seem like such a great idea when you're loaded. It's no coincidence that ink joints locate themselves near bars. Think of bait shops near boat launches.

  • ||

    Technically they're not supposed to work on you if you're drunk. Then again, the Jay & Silent Bob look-a-likes in the alley are technically not supposed to be peddling weed either.

  • ||

    Right, and so I'm supposed to get the potential tattee to say he isn't drunk or have him submit to a breathalyzer. One of the reasons one is an idiot if one gets drunk without a designated sober friend, or maybe the drinks I had are making me a little too candid?..but not drunk.

  • Mensan||

    No, but you have to sign a waiver (at least every shop where I've had work done) stating that you are not under the influence of drugs or alcohol.

  • ||

    Up off Midway and George Bush, there is a Fox 'n' Hound. On the Dallas county side of Midway there's 2 tat shops on the same plaza. 50 yds across the street are another 4 and another bar. I think it might just be more a result of zoning laws but you've got a point.

  • ||

    Where? Off Harry Hines?

  • Boss Tweed||

    The problem with tattoos is that in 20 years they'll mark the people getting them now as old, instead of young and hip. The grandmother of a friend of mine always wore long sleeves to hid the tattoos she got when she ran a speakeasy with her husband when they were young.

    Better to get a stupid haircut that you can change later.

    As alway, there's no reason for the government to tell you can't get one.

  • Mensan||

    I'm pretty sure the grey hair and wrinkled skin will be more of a tip off than my tattoos.

  • ||

    the free expression concept only makes sense if the tattoos themselves were banned. But you can read a book anywhere but can't locate a printing press anywhere you want. Tattoo parlors are magnets for lowlifes so if some town has a surfeit of them, I have no problem with towns banning them. The potential lowlife can always go to the next town to get their white trash, circus side show look on

  • Mensan||

    Your analogy is flawed. Tattooing doesn't correlate to printing books so much as it would to writing a book. Producing a tattoo is clearly creating art. Your hostility towards anyone who chooses that medium doesn't change the fact that it is art.

    How many tattoo parlors have you visited? You write authoritatively that they are magnets for lowlifes, so I have to wonder where these shops are on which you base that opinion. Unless your definition of lowlife automatically includes anyone who has a tattoo (in which case, you would be incredibly small-minded), then I counter that your argument is entirely baseless conjecture.

  • ||

    Ok, I have not done hard core research on the mores or tattoo wearers vs those that are not self desecrated, so I go by gut feelings. From what I have seen, people with a lot of tattoos seem to be mainly criminals, gang members, junkies or people with sever ego or emotional problems. Getting tattoos is like paying someone to spraypaint tacky graffiti on your building. Personally, I am repulsed by heavy and/or conspicuous tattooing and I associate it with those self centered inconsiderate morons who believe that polluting our air & space with their loud motorcycle exhausts and noise is some sort of noble act of free expression.

    But reading, writing and possessing a book is not the same as running a plant that prints them and I use the same analogy for tattoos. One can draw or wear his tattoo designs anywhere but to run a business to print them is a different story. At least tattoos don't cause noise pollutions unlike the two wheeled vermin on their loud ugly bikes

  • Anonymous Coward||

    Because noise pollution is so much worse than air pollution, right?
    Because gut feelings are acceptable arguments, right?
    Because anyone that doesn't have the same ideas of expression as you is a lowlife, right?

  • Cuddly Soft Balls of Death||

    inconsiderate morons who believe that polluting our air & space with their loud motorcycle exhausts and noise is some sort of noble act of free expression.

    I'm not inconsiderate. In fact, I considered it very carefully for almost 30 years before I started doing it. It's the sound of freedom, so it's no surprise that it offends you.

  • Mensan||

    "...tattoo wearers vs those that are not self desecrated..."

    Well see, there's your problem right there. The foundation of your gut feeling is your belief that homo sapiens sapiens have sacrosanct skin, and that anyone who desecrates that skin is ungodly.

    You do know that you can't trim your beard either, right? So, do you look like Billy Gibbons, or are you a hypocrite as well as a bigot?

  • ||

    The first word of the first amendment is "Congress..." How can a federal court find a city law to be controlled by this? Why does it seem so many people support this violation of the rule of law?

  • edwin||

    This is actually disappointing, I'd much rather that the ban was overturned as simply being so unreasonably overbearing as to be outside the gov's police power. Police power is broad, but it isn't warrant to rrgulate ANYTHING in ANY way. Clearly an outrigjt ban goes well beyond regs on "mean, manner, place" and is not a "reasonable" restriction, or whatever the hell bounds it is the gov has to stay within

  • shiroi neko||

    I love tattoo.

    Great art

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  • Hillary||

    Tattoo parlors have to be up to code in cleanliness and use sterile instruments just like restaurants have to clean their dishes in a certain way. It is sad that it took the courts that long to realize a disease can only be passed on if the sterilization techniques are not being applied.

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  • wubai||

    How about mbt kisumu sandals this one: there are X driving deaths a year- what % of driving deaths (or serious injuries) involve alcohol, or other intoxicating substances? kisumu 2 People are pretty darn good drivers when they are not impaired.

  • jiusuan||

    good

  • ||

    Technically they're not supposed to work on you if you're drunk.

  • Alrazaak.com||

    Your analogy is flawed. Tattooing doesn't correlate to printing books so much as it would to writing a book. Producing a tattoo is clearly creating art. Your hostility towards anyone who chooses that medium doesn't change the fact that it is art.

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