Or, as the City of Hermosa Beach argues, is it just a "service" like scooping ice cream, or silk-screening T-shirts, devoid of constitutional guarantees?"
According to a report by the Los Angeles Times, in 2006, Johnny Anderson, owner of the Yer Cheat'n Heart Tattoo studio, wished to move his shop from its current location in Gardena, California, mostly because that neighborhood was a bit too "seedy" for Anderson's taste. The tattoo artist says he even had to walk his female clientele to their cars after dark, just to ensure they were safe. The city fathers of his planed location, Hermosa Beach, however, declined to allow him a storefront because the zoning laws do not allow any tattoo establishments within that city. Anderson then sued in federal court, alleging infringement on his First Amendment rights. He lost that round. The presiding judge found that tattooing was "not sufficiently imbued with elements of communication" to render it a protected form of speech.
How do Anderson's chances look on appeal before the 9th Circuit? According to one well-known constitutional scholar, not too darn bad. According to the Times, U.C. Berkeley, Boalt Hall Law Professor Jesse Choper, summed it up like this: "If it's art, it's art, and art gets protection." Many court challenges over the intersection of city zoning laws and individual free speech rights turn on the question of whether the law was narrowly constructed to advance the city's right to safeguard its citizens, without needlessly intruding on the rights of free speech.
In this case, the city argues that at tattoo studio would present health risks, create "aesthetic concerns," and would impose a financial burden on the city to provide adequate inspection and regulation. Hermosa Beach contends Anderson is not creating expression, merely providing a service.
Anderson disagrees. The idea that the city should be wary of "undesirables" coming to his place of business is outmoded. The Times cites his court papers stating that one in five Americans have at least one tattoo. His clientele, far from the stereotypical bikers and sailors, says Anderson, are professionals, churchgoers and soccer moms. His attorney, Robert C. Moest, likens the Hermosa Beach ban on tattooing to the banning of printing presses.
The question of whether or not the act of tattooing is free speech was heard by the Court of Appeals on May 7th. But one last question that may not have been put before the judges, would the court perhaps consider a tattoo protected speech if it was comprised of the lines of the First Amendment?