"We hold that tattooing is purely expressive activity fully protected by the First Amendment"


It's real and it's, um, spectacular?

So writes Judge Jay S. Bybee for a unanimous three-judge panel of the federal 9th Circuit Court of Appeals today in the case of Anderson v. City of Hermosa Beach, striking down the California city's complete ban on all tattoo parlors. Take it away Judge Bybee:

In sum, we hold that the tattoo itself, the process of tattooing, and the business of tattooing are forms of pure expression fully protected by the First Amendment. We further hold that the City's total ban on tattoo parlors in Hermosa Beach is not a reasonable "time, place, or manner" restriction because it is substantially broader than necessary to achieve the City's significant health and safety interests and because it entirely forecloses a unique and important method of expression.

Read the full decision here. Reason talks tattoos here and here. Pictures of some liberty-themed tattoos right here.

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  1. The only part of his judgement I disagree with is: tattoos are important. They’re not – they’re utterly trivial. All the more reason for government not to ban the businesses who sell them. You might as well ban toy stores or souvenir shops.

    1. You might as well ban toy stores or souvenir shops.

      Unfortunately, I know a few “trendy” neighboroods that are perfectly willing to ban Mickee Dee’s or anything else ‘low end’.

      cf. The Walmart Wars.

  2. that wacky 9th

  3. We further hold that the City’s total ban on tattoo parlors in Hermosa Beach is not a reasonable “time, place, or manner” restriction because it is substantially broader than necessary…

    “Never, nowhere and no-how” didn’t work? Go figure.

  4. A tattoo is speech? I did not know that. I also didn’t know that property rights were covered under the First Amendment.

    1. Since a tattoo is an image or depiction, it would be covered under free speech.

      If they had fought this under the fourth amendment, they would have lost.

      1. So screw the property-rights thing. It’s all about tacky skin art. This diminishes Constitutional protections by subverting language. Behavior is “speech.”

        1. Behavior is necessary to produce speech, as is property for all but the most primitive forms of expression. If those things necessary for speech could be attacked with impunity, freedom of speech would be a meaningless concept.

        2. Ah, but that’s how we’ve gotten many of our constitutional protections of activities during my lifetime — by recasting them as expression.

  5. Look at my new bitchin’ ink, guys.

    1. I knew a guy who got a tribal Darth Vader tattoo.

    2. I knew a guy who got the Dominos Noid on his calf leg. His whole, fucking calf was covered in that idiot cartoon.

      We never let him live that down.

      1. I lost a bet after the 2007 (Mythical) National Championship when my Buckeyes got smoked by the Gay-tors. I had to get a tramp stamp of a trinity. Being a man with a tramp stamp is no picnic, let me tell you.

        It’s funny, I’m 40 years old and my mother tells me she’s ashamed of that tattoo. Never mind the other 4, including a sweet Gadsden Flag (that I got years ago) and my kids names on a heart…all from Danny Fowler, the inventor of the time machine.

        1. Even if I were the guy with the terrible pizza tattoo I linked to, I’d still be embarrassed for you.

          1. It makes days at the coast a bit rough, let me tell you.

          2. Don’t let him fool you, Warty. This is a Gainsvillan if ever I heard one. Or at least he should be.

            1. WHAAAAAAA? Never, and I mean never, will I be anything but a Buckeye.

    3. So that’s you, then, Warty? It’s funny, I expected you to be more bestial, but just as nerdy.

    4. Is that Chicago-style?

  6. I know I’m old when young people’s tattoos look like shit to me. I never thought I’d pine for a flaming skull.

  7. Here’s what I can’t figure out.

    City manager’s meeting in Hermosa Beach.

    Someone raises this idea up the flagpole: We should ban all tattoo parlors!!!11!!!1

    Who saluted and why?

    I’m beginning to wonder if my unanswered question of crazy married couples also might apply to municipal governments.

    IN summary, I’ve always wondered how two people with the exact same kind of crazy can end up married together. Example:

    My wife comes up to me tomorrow and says, “You know, I think our daughter may be possessed, I feel that the only way to cure her is to behead her ritually in the living room”.

    My response would be, “The fuck, woman?!!”

    But yet there are married people where one spouse suggests this, and the other says, “Hey! You know, I was just thinking the SAME thing!”

    Does the crazy rub off? Are those types of crazy attracted to eachother?

    I see the same thing in government. Someone flies some patently retarded idea up the flagpole, and a whole city council will salute without debate.

    1. They’re together for a reason, dude.

    2. Absolutely. Crazy loves crazy. Opposites attract – that’s crazy. Bullshit. Retarded likes crazy too. Men will marry crazy, crazy women if they are hot enough. Known as thinks-with-dong retardation.

  8. The idiotic state I live in banned all tattooing for decades. They only legalised it a few years ago.

  9. I think I’ll get a tattoo of a burning Koran.

    1. I want to get a tattoo of Mohammed burning the Koran.

      1. I’m late to the party AGAIN. You beat me to it.

      2. Mohammed setting a Quran on fire using a burning American flag.

        1. Inked on my cooter!

        2. Mohammed setting fire to an American flag using a page from the Koran rolled into a giant doob.

      3. Wow, two separate fatwas from one lousy arm!

  10. Once again, to be the devil’s advocate, that’s a substantially overbroad reading of free speech. A municipality is allowed to regulate tattoo parlors in any way it pleases, just like it can regulate any other business providing any other service any way it pleases. Is hairstyling “free speech?” Bikini waxing? Hell – is a Big Mac “free speech?”

    Now, if the law were something like “you aren’t allowed to live here if you have a tattoo,” then that would be in violation of the First Amendment.

    1. To be more clear, my point is that a tattoo is free speech, but tattooING (at least when provided as a service) is not.

      1. I dunno, dude. If they were to ban all publishers, printers, etc. would you say the same thing?

  11. Tattoos are one of the few forms of speech that can leave you with a really nasty staph infection. Be careful, Hermosa Beach

    1. Did Hermoas Beach have unusally high levels of staph infection from the local tattoo parlors?

    2. So?

      Flag burning can leave you with nasty second and third degree burns.

  12. What if you flash a tattoo that says “FIRE!” in a crowded theater?

    1. What if you had a tattoo of a crowded theater, with the word “Fire” drawn inside it?

      Or, what if you just had the word “Fire” as a tattoo, and you walked into a crowded theater?

      Also, how crowded does a theater have to be when yelling “Fire” is illegal? And what if it’s a largely empty theater? How about say, 51% occupancy? What if you’re not inside the theater, but yelling it near the opening?

      1. IIRC, the actual judgment in question said something to the effect “unnecessarily shouting ‘fire’ in a crowded theatre.”

        1. I see. You should always start a fire before yelling that.

  13. It’s nice to see that war criminal got a legal argument right.

    1. Whisky Tango Foxtrot?

      1. Bybee was one of the torture memo guys. According to Wikipedia “Bybee is currently the subject of a war crimes investigation in Spain”. Still, Nanomous should have said “alleged war criminal”.

        1. of course, everyone “is currently the subject of a war crimes investigation in Spain” – including the prosecutor doing the investigations.

  14. It is a sad waste of taxpayer’s money that we have to pay for a judge and court system to defend the rights of tatoo parlors.

  15. Damn folks, I went to the link in the article and saw all the well-done liberty-themed tats: a couple of Gadsden flags, “Liberty or Death” and an amagi symbol to mention a few. Was starting of getting some ink myself!

    And then I read the comments and it sounds like I’ve walked into the Republican Nannies Art Critics Association.

    It is art! Or at least expression.

    And if someone wants a nice infection from not checking out the references ahead of time, that’s their business too. At least, that’s what I expected to read here.

    Lighten up!

  16. Dang, what happened to Hermosa Beach. It used to be a non-stop party there. Not exactly the kind of place that was alarmed by tattoos.

    Guess it gentrified as the population got older and started breeding.

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