Calif. city can’t ban tattoo parlors, 9th Circuit rules

Friday, September 10, 2010

SAN FRANCISCO — A federal appeals court struck down a city ban on tattoo parlors yesterday, ruling the artistic expression is entitled to free-speech protection under the U.S. Constitution.

The 9th U.S. Circuit Court of Appeals ordered the Southern California city of Hermosa Beach to allow tattoo parlors to operate.

The city had argued that the operations threaten public health and attract an unsavory clientele prone to crime.

Several state courts and federal trial courts have upheld similar bans in other cities across the country.

However, the ruling yesterday was the first by a federal appeals court, meaning such bans are now unconstitutional in the nine western states that must comply with 9th Circuit rulings.

Judge Jay Bybee, writing for the unanimous three-judge panel, said the city’s ordinance targeted protected speech.

“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,” Bybee wrote in Anderson v. Hermosa Beach.

Bybee also said the city’s ban wasn’t “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.”

The court said the ban was an unconstitutional overreaction to health concerns that can be addressed through regulations to ensure sanitation.

Hermosa Beach City Attorney Michael Jenkins said the city was disappointed with the ruling and hadn’t decided whether to appeal.

“The Hermosa Beach City Council places a priority on protecting the public’s health and safety, and it adopted this ordinance because of the potential health hazards caused by unsanitary tattoo practices,” Jenkins said.

Johnny Anderson sued the city in 2007 after it refused to let him move Yer Cheat’n Heart Tattoo studio from Gardena to Hermosa Beach, which is closer to his Redondo Beach home and three young children.

“They have an outdated notion that only sailors and fallen women get tattoos, which isn’t the case,” Anderson said of his legal battle with Hermosa Beach officials. “Everybody gets a tattoo these days.”

Free-speech expert Jesse Choper said it’s unlikely the U.S. Supreme Court would take up the case, noting that Bybee is a politically conservative judge.

“It’s a pretty straightforward case,” said Choper, a law professor at the University of California, Berkeley. “It would seem a clear, uncontroversial application of the First Amendment.”

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