The US Court of Appeals for the Ninth Circuit [official website] on Thursday invalidated [opinion, PDF] a municipal ban on tattoo parlors by Hermosa Beach, California, calling it a violation of the First Amendment. The controversy initially arose when Johnny Anderson was denied a permit to open a tattoo parlor by the city, located in southern California. The city does not list tattoo parlors in its zoning code [materials], and, as tattoo parlors must be registered under California law [California Health and Safety Code, text], the city's code in effect outlawed those establishments. The US District Court for the Central District of California [official website] granted summary judgment to the city when Anderson filed his original suit. In arriving at its decision, the Ninth Circuit first held that tattooing is an expressive activity, not merely conduct with an expressive component. Based on that holding, the court further held that tattooing was subject to only reasonable time, place or manner restrictions, and the city's ban was not narrowly tailored to the city's interest in protecting public health and did not leave open alternative channels of communication. The court concluded:
[T]he City's total ban on tattoo parlors in Hermosa Beach is not a reasonable "time, place, or manner" restriction because it is substantially broader than necessary to achieve the City's significant health and safety interests and because it entirely forecloses a unique and important method of expression. Moreover, no genuine issue of material fact exists with respect to the constitutionality of the regulation. Thus, we hold that Hermosa Beach Municipal Code § 17.06.070 is facially unconstitutional to the extent that it excludes tattoo parlors.The city is currently deliberating as to whether it will appeal the decision [LAT report] to an en banc panel of the Ninth Circuit, or perhaps even to the Supreme Court.
First Amendment rights have been the focus of numerous court challenges in recent history, often by unpopular groups seeking to have their rights enforced. Also Thursday, the US District Court for the Central District of California, which granted summary judgment against Anderson, ruled that the US military's "Don't Ask, Don't Tell" policy violates the First Amendment [JURIST report]. In August, the US District Court for the Western District of Missouri found that Missouri laws banning protests at funerals [JURIST report] are unconstitutional. That case involved the controversial Westboro Baptist Church, and another case involving the same organization will be heard by the Supreme Court [JURIST report] this term.