FREE SPEECH -- "In the wide panorama of human rights violations, the question just
presented before the 9th Circuit Court of Appeals may not be that
urgent, but it sure is interesting," says FindLaw blogger Tanya Roth. "The essence of the case of Anderson
v. Hermosa Beach is this question: Is tattooing a form of free
expression granted protection under the First Amendment?"
Or, as the City of Hermosa Beach argues,
is it just a "service" like scooping ice cream, or silk-screening
T-shirts, devoid of constitutional guarantees?"
to a report by the Los Angeles Times, in 2006, Johnny
Anderson, owner of the Yer
Cheat'n Heart Tattoo studio, wished to move his shop from its
current location in Gardena, California, mostly because that
neighborhood was a bit too "seedy" for Anderson's taste. The tattoo
artist says he even had to walk his female clientele to their cars after
dark, just to ensure they were safe. The city fathers of his
planed location, Hermosa Beach, however, declined to allow him a
storefront because the zoning laws do not allow any tattoo
establishments within that city. Anderson then sued in federal court,
alleging infringement on his First Amendment rights. He lost that round.
The presiding judge found that tattooing was "not sufficiently imbued
with elements of communication" to render it a protected form of speech.
How do Anderson's chances look on appeal before the 9th Circuit?
According to one well-known constitutional scholar, not too darn bad.
According to the Times, U.C. Berkeley, Boalt Hall Law Professor
Jesse Choper, summed it up like this: "If it's art, it's art, and art
gets protection." Many court challenges over the intersection of city
zoning laws and individual free speech rights turn on the question of
whether the law was narrowly constructed to advance the city's right to
safeguard its citizens, without needlessly intruding on the rights of
In this case, the city argues that at tattoo studio
would present health risks, create "aesthetic concerns," and would
impose a financial burden on the city to provide adequate inspection and
regulation. Hermosa Beach contends Anderson is not creating
expression, merely providing a service.
Anderson disagrees. The idea that the city should be wary of
"undesirables" coming to his place of business is outmoded. The Times
cites his court papers stating that one in five Americans have at
least one tattoo. His clientele, far from the stereotypical bikers and
sailors, says Anderson, are professionals, churchgoers and soccer moms.
His attorney, Robert C. Moest, likens the Hermosa Beach ban on tattooing
to the banning of printing presses.
The question of whether or not the act of tattooing is free speech
was heard by the Court of Appeals on May 7th. But one last question that
may not have been put before the judges, would the court perhaps
consider a tattoo protected speech if it was comprised of the lines of
the First Amendment?