July 14, 2014

Lydia, oh Lydia, say, have you met Lydia?
Lydia the tattooed lady.
She has eyes that men adore so,
And a torso even more so.
Lydia, oh Lydia, that encyclopedia,
Lydia, the queen of tattoo . . .

E.Y. “Yip” Harburg, Lydia the Tattooed Lady (from At the Circus, 1939)

Arm tattoo When Groucho Marx sang his risqué paean to a circus performer, tattoos were something out of the mainstream.  A sailor might have one or two, but it was unusual (at least) for anyone else to have one.

To say that public attitudes towards body art have changed over the past 75 years is to make a grand understatement.  A 2010 survey by the Pew Research Center found that nearly 40% of Millenials—defined in the survey as those born between 1981 and 1991—had at least one tattoo.  This is more than double the percentage of people over 45 who have a tattoo.  Corporate America is slowly coming to grips with the trend.  While many employers still say that visible tattoos will make them less likely to hire a prospective employee, other employers are becoming more tolerant of employees’ tattoos, objecting only if the tattoos are offensive.  It is safe to assume that tattoo acceptance will grow as the Millenials move up in the business world.

While the social attitudes towards people with tattoos are evolving, there still is some resistance to the business of tattooing.  A number of communities have tried to use local zoning ordinances to keep tattoo parlors out.  Health concerns are often cited as a justification for the exclusion, but some communities try to exclude tattoo businesses because of fears that they are not in keeping with the image the community wishes to project.

Tattoo-parlorAre tattoos (or, more precisely, the business of operating a tattoo parlor) communication that is protected by the First Amendment?  The two most recent appellate court cases to consider this issue (at least, in the context of a zoning ordinance) have held that they are.  In the case of Anderson v. City of Hermosa Beach, 621 F.3d 1051 (9th Cir. 2010), the Ninth U.S. Circuit Court of Appeals held that a city zoning ordinance that effectively banned tattoo parlors was unconstitutional.  The city had made the argument that the act of tattooing was not “purely expressive conduct” entitled to First Amendment protection, but was merely conduct that contained an expressive element, and so could be prohibited if the prohibition was “rationally related” to a legitimate governmental interest.  The city claimed that its prohibition on tattoo businesses was “rationally related” to the health concerns posed by tattooing.  The court did not accept this argument, and held that the act of tattooing was pure expressive conduct on the part of the tattoo artist.  The only legitimate restrictions on tattooing that would be allowed would be reasonable “time, place, and manner” restrictions.  A total ban is not such a “reasonable” restriction.  The court “respectfully disagree[d]” with the several courts that had held otherwise.

In Coleman v. City of Mesa, 230 Ariz. 352, 284 P.3d 863 (2012), the Arizona Supreme Court also held that tattooing was purely expressive conduct entitled to full First Amendment protection.  The court’s opinion included an extensive review of the approaches courts and commentators have taken to the question of the level of constitutional protection to be given to tattooing.  The court followed the reasoning of the Ninth Circuit and rejected the idea that tattooing is not purely expressive conduct.  The Arizona court also rejected the approach put forward in academic commentary that suggested taking a case-by-case approach to determine if a particular tattoo artist’s work had a “predominantly expressive purpose.”

These two opinions are probably not the last word on the subject.  Given the shift in social and cultural attitudes towards tattoos and those who sport them, the reasoning of the Ninth Circuit and Arizona Supreme Courts is very likely the way cases such as this will be decided in the future.  After all, judges may not have tattoos, but it’s a fair bet that some of their law clerks do.