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August 16, 2019

The 1st Amendment Protects Your Tattoos, and Tattoo Parlors, Too

A series of recent court decisions establishes that tattoos, and the actual act of tattooing as “forms of pure expression fully protected by the First Amendment." That means local governments, which frequently try to restrict tattoo parlors to certain areas that often may be undesirable business locations, have to do a better job proving that they are not simply trying to suppress constitutionally protected free speech, according to a legal analysis published Friday by the Connecticut Law Tribune.  In the most recent case involving tattoos and the First Amendment, the city of Montebello, California, told tattoo shop owner Katherine Weaver that the municipal zoning code restricted tattoo shops to two small shopping centers—locations that charged unsustainable rents for her business. But that wasn’t all. Montebello also required tattoo shop owners to obtain a “conditional use permit,” a type of license that is subject to what the CLT called “subjective criteria,” in order to be granted. And as the capper, tattoo shops that violate the city’s codes must pay a $1,000 fine. The United States District Court for the Central District of California wasn’t buying it. Citing precedents that have held tattooing to be protected expression, Judge Dolly M. Gee—a 2010 Barack Obama appointee—ruled that the city’s “conditional use permit” requirement gave city officials “unbridled discretion” to unconstitutionally regulate Weaver’s First Amendment-protected free expression. In fact, the city failed to “sufficiently justify” placing restrictions on Weaver’s protected tattooing activities by telling her where she must locate her business.  “The city of Montebello did not adequately show how this regulation advanced its police power interest in protecting the public’s health, safety and general welfare,” the CLT wrote. In a 2010 case covered in the CLT article, another California city, Hermosa Beach, imposed a total ban on tattoo shops in its city limits. But when tattoo artist Johnny Anderson argued that he should be allowed to move his shop from Gardena, California, to Hermosa Beach, the Ninth Circuit Court of Appeals agreed. "A form of speech does not lose First Amendment protection based on the kind of surface it is applied to,” the court said its opinion. In other words, just because a work of art is created on human skin, it is no less protected than if it had been painted on canvas. Photo By Alexander Kuzovlev / Wikimedia Commons 

 
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