The Ninth Circuit recently struck down a local ordinance that banned tattoo parlors within the city of Hermosa Beach, California.

In Anderson v. Hermosa Beach, decided September 9, the panel struck down a local ordinance that basically imposed a total ban on tattoo parlors within the city of Hermosa Beach, California.  Municipal Code section 17.06.070 provides zoning for a wide variety of businesses, but not these.  So in Hermosa Beach, you could operate an “adult” business, gun shop, or fortune teller (or, ideally, some combination of all three), but you couldn’t run a tattoo parlor.

The plaintiff owns a tattoo parlor in Los Angeles and wanted to open one in Hermosa Beach, but his request for a permit was denied.  He sued, arguing that the ban violated the First Amendment.  The district court ruled that tattooing was not protected expression, at least on the part of the tattooer, largely because the tattooee decides what he or she wants on his or her body.  That court therefore applied the “rational basis” test, and that meant Anderson lost.

On appeal, the Ninth Circuit said its first task was “to determine whether tattooing is (1) purely expressive activity or (2) conduct that merely contains an expressive component.”  In other words, is it like writing, which always expresses something, or more like burning a draft card, which might express something (e.g. I don’t want to get shot) or might not (if you are just trying to start a fire?).  The court found there was no dispute that a tattoo itself is protected “speech” even if it doesn’t consist of words.  Disagreeing with other courts, it then held that the process of tattooing someone must also be protected, because you can’t separate the process from the tattoo itself.

What about all those businesses that aren’t expressive? Are they not worth protection? The fact that the First Amendment has to be used here just goes to show how far we’ve fallen in the protection of basic economic rights. Everyone has a right to pursue an honest living, and to engage in trade of mutual consent. That is why this ban should have been struck down. Unfortunately, the courts long ago decided that economic liberties do not deserve the same level of protection as other rights thanks to the infamous footnote four. Hence why they had to bend over backwards and use the First Amendment in such a manner.

The outcome of this case was right, but the reasoning would not need to be so complicated if the courts would simply recognize economic liberties once again.