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Marked for Life

Constitutionally protected tattoos

Damon W. Root
December 17, 2010

“The tattoo designs that are applied by me are individual and unique creative works of visual art,” the tattoo artist Johnny Anderson claimed in a 2006 lawsuit. They are therefore constitutionally protected speech, he argued, so the courts should strike down a ban on tattoo parlors within the city limits of Hermosa Beach, California.

In September a unanimous three-judge panel of the U.S. Court of Appeals for the 9th Circuit agreed, holding that “the tattoo itself, the process of tattooing, and the business of tattooing are forms of pure expression fully protected by the First Amendment.” It’s the highest-profile victory yet in the tattoo trade’s long battle against the regulatory state.

New York City, where the electric tattoo machine was invented and patented in 1891, legalized the practice in 1997, lifting a 36-year-old ban imposed after tattooing was falsely linked to a hepatitis B scare. Massachusetts legalized the practice in 2000 after state Superior Court Justice Barbara Rouse struck down a similar ban. Unlike previous precedents on the topic of tattooed speech, the 9th Circuit’s ruling limits state action from Alaska to Arizona and is likely to influence other jurisdictions around the country. 

Damon W. Root is an associate editor at reason. This column first appeared at Reason.com.


Damon W. Root is Senior Editor


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