Federal Court to Government Regulators: The First Amendment Protects Tattoo Shops

"The tattoo itself, the process of tattooing, and the business of tattooing are forms of pure expression fully protected by the First Amendment."

The tattoo trade has won another notable legal victory in its long-running battle against unreasonable government regulation.

In late March a three-judge panel of the U.S. Court of Appeals for the 9th Circuit ruled unanimously in favor of California tattoo artist James Real, who is currently mounting a constitutional challenge to the city of Long Beach's anti-tattoo shop zoning law and other prohibitory regulations. "We have held that tattooing is 'purely expressive activity fully protected by the First Amendment,'" the 9th Circuit bluntly reminded the federal district court, which had previously dismissed Real's complaint. "This includes '[t]he tattoo itself, the process of tattooing, and even the business of tattooing.'" Translation: Get your act together, district court.

This is a key win for Real, who had suffered a massive early defeat when the federal district court held that he lacked standing to challenge the city's zoning law as unconstitutional on its face and that he lacked standing to challenge the law as applied to him. The district court also held that the city's actions cannot be viewed as violations of Real's First Amendment rights.

The 9th Circuit reversed the district court on all counts. Its decision in Real v. City of Long Beach orders the district court to rehear Real's case and "to try Real's facial and as-applied First Amendment claims, on the grounds that the City's zoning ordinances operate as unlawful prior restraints on speech and are unreasonable time, place, or manner restrictions on speech." I suspect Real is going to fare a little better in district court the second time around.

As I previously reported in Reason's June 2016 issue, tattoo artists are increasingly taking the government to court and winning on the merits:

Over the past half-century, tattoo artists have been subjected to all manner of overreaching, ill-fitting, and just plain nonsensical government controls. They've been hassled by clueless health departments, shut down by moralizing zoning boards, and outlawed entirely by busybody city councils and state legislatures. But tattoo artists can be a prickly bunch, and increasingly they're opting to fight back. In recent years tattooists around the country have launched a series of civil liberties lawsuits designed to put the government's regulatory malfeasance on trial. And while the ink-masters aren't winning every case, their legal attacks are finally starting to turn the tide.

James Real's preliminary victory at the 9th Circuit is further evidence that the tide is turning.