Tattoos as Protected Speech

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Mention the 1st Amendment and an array of images come to mind: a printing press, a protest sign, a street-corner preacher, the fingers of a citizen journalist pecking out a bulletin for the blogosphere. Now there is another icon of free expression: the illustrated man (or woman).

Last week the U.S. 9th Circuit Court of Appeals ruled — correctly — that tattoos are a form of protected expression and that the city of Hermosa Beach may not impose a blanket ban on tattoo parlors. The decision arose from a challenge by a tattooist to the city's municipal code, which allows a diverse group of commercial operations — including “adult businesses,” gun shops and fortunetelling establishments — to set up shop, but excludes tattoo parlors.

In a majority opinion that sometimes reads like a paean to the art of the tattoo, Judge Jay S. Bybee concluded that tattoos — and by extension the tattoo business — are a “purely expressive activity” covered by the 1st Amendment. Tattoos, the judge wrote, “can express a countless variety of messages and serve a wide variety of functions.” Indeed, the medium of skin can also be the message. Bybee said that by “permanently engrafting a phrase or image onto his skin, the bearer of that tattoo suggests that the phrase or image is so important to him that he has chosen to display the phrase or image every day for the remainder of his life.”

Whatever one thinks of tattoos, it's impossible to disagree with Bybee's conclusion that “a form of speech does not lose 1st Amendment protection based on the kind of surface it is applied to.

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