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Patti Millett

Patti Millett

Posted: May 28, 2010 04:31 PM

Constitutionally Protected Ink?

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The Ninth Circuit Court of Appeals recently heard arguments in a case brought by a tattoo artist against the City of Hermosa Beach (a Los Angeles beach community) claiming that the City's ban on tattoo parlors violated his free speech rights under the First Amendment. The artist, Johnny Anderson, asserts that his tattoos are visual and verbal expressions which are no different than other art forms such as paintings and drawings which have found protection under the First Amendment. The City's brief flatly rejects Anderson's claim and takes the position that tattoos "historically, or even today" have never been a "significant medium of communication of ideas." The City's position on the communicative nature of tattoos seems untenable in today's society. The tattoo at the base of Angelina Jolie's neck which reads "know your rights" seems obviously intended to communicate a message, and has been seen by millions of people around the world in publicity and paparazzi photographs. Kobe Bryant's tattoo of his wife's name with a crown and Victoria Beckham's tattoo of a Hebrew verse from the Song of Solomon ("I am my love's and my love is mine") likewise seem obviously intended to communicate messages about their relationships with their respective spouses. Kobe Bryant and Victoria Beckham's tattoos, like Angelina Jolie's, have been seen by numerous people around the world in print and on television.

The communicative nature of tattoos in today's society is not limited to celebrities. Tattoos today are not covered up as they may have been in years passed. People of all walks of life can be seen displaying tattoos of all types at shopping malls, in restaurants and numerous other public places, including the ocean front bike path and plaza in Hermosa Beach. It seems hard to argue that a person publicly displaying a large tattoo saying "I love Mom" is not trying to communicate a message. It is equally hard to say that a person seeing such a tattoo would not understand that the wearer is conveying that he has great love for his mother and that she is an extremely important person in his life.

Ultimately, however, the Ninth Circuit does not need to decide whether tattoos are communicative in nature or are themselves art in order to resolve Anderson's case. The First Amendment protects what we traditionally think of a speech, as well as certain "expressive conduct." To qualify as protected speech under the First Amendment, conduct must, in legal parlance, be "sufficiently imbued with elements of communication." Spence v. Washington, 418 U.S. 405, 409, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974). In deciding whether particular conduct is sufficiently communicative to qualify for First Amendment protection, courts look to whether there was an intent to convey a particularized message and whether there is a great likelihood that the message would be understood by those who viewed it. Applying these factors, courts have found such diverse conduct as displaying an American flag upside down with a peace symbol affixed, picketing, and wearing a sign on the back of a jacket to be protected speech.

In Anderson's case, the problem is that he is not the one wearing the tattoos created in his shop (or at least not for the most part). Anderson's conduct, for purposes of a First Amendment analysis, is the physical act of creating and inking tattoos on his customers. Thus, any intent to convey a particular message would be the intent of the person on whom the tattoo is inked, not Anderson. The trial court found this to be a critical factor in dismissing Anderson's claim. As the trial court stated, "[t]he very nature of the tattoo artist is to custom-tailor a different or unique message for each customer to wear on the skin." The trial court also noted that it was the customer who "has ultimate control over which design she wants tattooed on her skin." It seems likely that the Ninth Circuit will similarly separate Anderson's conduct (the physical creation and placement of tattoos on his customers) from any message the customers may intend or convey by their tattoos and may resolve the case without deciding the issue of whether tattoos in and of themselves are entitled to protection under the First Amendment. In fact, that is exactly what a federal district court in Minnesota did in rejecting a tattoo artist's claim that the Minnesota State Fair's refusal to rent him space at the fair violated his First Amendment rights. The Minnesota court found the question of whether tattoos are an art form to be "intriguing," but ultimately irrelevant to its decision that the artist's conduct (which the court described as "the actual process of tattooing, as opposed to whether the image conveyed by the tattoo itself") was not sufficiently communicative to qualify as protected speech.

As a general matter, courts prefer to avoid advisory opinions and reach only those issues which are necessary to a decision. In Anderson's case, the issue is whether the challenged ordinance, which prohibits opening any tattoo parlors in the City of Hermosa Beach, violates the First Amendment. The Ninth Circuit can resolve this issue by narrowly focusing on the nature of Anderson's conduct as a tattoo artist without ever reaching the more interesting question of whether tattoos in and of themselves are protected under the First Amendment. If what Hermosa Beach had done was pass an ordinance limiting the type of tattoos an artist could create, or what tattoos inked on an individual could say, the district court and the Ninth Circuit may very well find tattoos to be sufficiently communicative in nature. When you think about it, as a practical matter, the only difference between a tattoo and a sign worn on the back of a jacket is that the tattoo is permanent (at least until lasered off). For purposes of a First Amendment analysis, that is a difference which shouldn't matter.