Preserving Access to Tattoos: First Amendment Trumps Municipal Ban in Anderson V. City of Hermosa Beach

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I. INTRODUCTION

In the Ninth Circuit's recent decision Anderson v. City of Hermosa Beach,1 the court held that a municipal ban on tattoo parlors violates the First Amendment. Particularly, the Ninth Circuit diverged from the rulings of other jurisdictions to conclude that the business, process, and nature of tattooing are purely expressive activities entitled to robust First Amendment protection. After more than thirty years of courts getting it wrong, the Ninth Circuit's opinion correctly reevaluates the purely expressive nature of tattooing to conclude that tattoos are protected speech. Nevertheless, while the Ninth Circuit's decision aptly interpreted First Amendment protection and precedent, it went too far when it invalidated the Hermosa Beach ban as an unreasonable time, place, or manner restriction.

Parts II and III of this Note examine relevant First Amendment jurisprudence as well as the history and nature of tattoos generally. Part IV of this Note addresses the Ninth Circuit's analysis in Anderson. Part V analyzes the Anderson decision in light of existing case law and Supreme Court precedent, concluding that while the court's analysis of the tattooing process and business as "purely expressive" speech is correct, it erred in concluding that the Hermosa Beach ban is an unreasonable time, place, or manner restriction. Part VI offers a brief conclusion.

II. FACTS AND PROCEDURAL HISTORY

Plaintiff" Johnny Anderson ran Yer Cheat'n Heart tattoo parlor in Redondo Beach, within the City of Los Angeles. He wanted to open another parlor in the City of Hermosa Beach.2 Hermosa Beach lies within the County of Los Angeles, and while the City of Los Angeles generally permits tattoo establishments, Hermosa Beach does not.3 Hermosa Beach Municipal Code § 17.06.070 states: "Except as provided in this title, no building shall be erected, reconstructed or structurally altered, nor shall any building or land be used for any purpose except as hereinafter specifically provided . . . ."4 The Code subsequently permits several kinds of businesses, such as restaurants, bars, and gun shops, but no provision in the zoning code allows tattoo parlors.5

In August 2006, Anderson filed an action under 42 U.S.C. § 1983, alleging that § 17.06.070 was unconstitutional under the First and Fourteenth Amendments.6 The Central District of California dismissed Anderson's suit, alleging that it was not ripe for review because he had not yet asked for permission to open a tattoo parlor.7 Thereafter, Anderson requested to open a tattoo establishment witliin Hermosa Beach under the city code's provision allowing establishments not specifically listed in the statute to operate if the business could be classified as a "similar use."8 Anderson's request was denied by die city's Community Development Director, and in 2007 he reinitiated his action in federal court to strike down the city's ordinance.9

A. The District Court's Ruling

Upon filing the case in district court, both parties moved for summary judgment.10 The district court granted Hermosa Beach's motion and denied Anderson's, holding that "the act of tattooing" is not protected expression under the First Amendment because, although it is non-verbal conduct expressive of an idea, it is not 'sufficiendy imbued with the elements of communication'"11 that are required to receive First Amendment protection under Spence v. Washington}2 Because the court did not consider tattooing protected speech, mere rational basis review was required in order to uphold Hermosa Beach's ordinance.13 As such, in light of the "health risks inherent in operating tattoo parlors,"14 Hermosa Beach possessed a rational basis for excluding tattoo parlors, and thus the ordinance stood. Anderson appealed the ruling to the Ninth Circuit.15

III. SIGNIFICANT LEGAL BACKGROUND

A. First Amendment Protected Speech

The First Amendment, as incorporated and applied against the states through the Fourteenth Amendment, prohibits government restrictions on free speech. …