“The First Amendment embodies the belief that in a free and democratic society, individual adults must be free to decide for themselves what to read, write, paint, draw, compose, see, and hear.”[i]

However, one of the oldest forms of artistic expression, tattooing, has had trouble getting First Amendment protections. Tattoos have existed for centuries, even being found on mummies who lived over 5,300 years ago.[ii] Tattooing has been an artistic form performed by many early civilizations and cultures around the world, including the Egyptians, Polynesians, Native Americans, and many more.[iii] As a result of the invention of the modern electric tattoo machine in the 1890’s tattooing became prevalent in the United States, mainly by soldiers expressing their patriotism during World War II.[iv]  But after the war ended American society began associating tattoos with people on the edge of society including sailors, criminals, and people who were considered “lower-class.”[v] However, as society has evolved, tattooing has become mainstream. Many Americans today have tattoos; some studies have shown that around 32% of adults have a tattoo themselves, including 22% who have more than one.[vi] With the growing acceptance of tattoos as a form of artistic expression in America, First Amendment protections should extend to not only the protection of the tattoo, itself but also the act of tattooing.

One major question that lower courts have wrestled with is whether the act of tattooing itself, rather than the tattoo (the finished product), is protected under the First Amendment. Many courts have upheld zoning laws that outright ban or heavily restrict tattoo parlors (the act of tattooing) under a Euclid v. Amber Reality standard.[vii] In the keystone case of Euclid, the United States Supreme Court held that the government has a substantial interest in regulating land uses, such as where to place tattoo shops.[viii] A municipality can regulate land use so long as it meets the rational basis standard. Therefore, if the zoning ordinance is rationally related to a legitimate government interest, such as public health, safety, morals, and general welfare, then it passes constitutional muster.[ix] Under this relaxed standard, many courts have upheld zoning ordinances regulating tattoo parlors because tattoos involve the “‘puncturing the skin’ with a needle creating openings in the human skin through which diseases can pass.”[x] As a result, because the ordinances deal with the health and welfare of the municipality’s citizens, anti-tattooing ordinances meet the rational basis review and will be upheld.

Some courts have divorced the idea that the act of tattooing is not protected under the First Amendment, even though the finished product, the tattoo, is protected as pure speech.[xi] The Court in Hold Fast Tattoo held that the act of tattooing itself is “one step removed” from the “actual” expressive conduct, the tattoo itself and therefore is not protected by the First Amendment.[xii] Consequently, when there is no fundamental right at issue the “legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest.”[xiii]

Recently, some courts, including the Ninth and Eleventh Circuit Court of Appeals, have held that the tattoo itself and even the act of tattooing are protected under the First Amendment.[xiv] The Court in Buehrle v. City of Key W., agreeing with the Ninth Circuit in Anderson v. City of Hermosa Beach, held that the act of tattooing is protected because it is  “virtually indistinguishable from other protected forms of artistic expression.”[xv] The Court further held that “[t]he principal difference between a tattoo and, for example, a pen-and-ink drawing, is that a tattoo is engrafted onto a person’s skin rather than drawn on paper. . . . [A] form of speech does not lose First Amendment protection based on the kind of surface it is applied to.”[xvi] The Court correctly understood that “the tattoo cannot be created without the tattooing process . . . . Thus, as with writing or painting, the tattooing process is inextricably intertwined with the purely expressive product (the tattoo), and is itself entitled to full First Amendment protection.”[xvii] Additionally, the Anderson Court noted that this holding is consistent with other analogous Supreme Court decisions that have not drawn a distinction between the process of creating a form of pure speech and the product of these processes in terms of First Amendment protections.[xviii]

As tattooing has become more of a societal norm and has emerged as a prominent art form in the United States, it should be afforded full protection under the First Amendment. The recent cases should be memorialized by the Supreme Court in holding that the tattoo itself, the process of tattooing, and the business of tattooing are forms of pure expression fully protected under the First Amendment, and zoning ordinances prohibiting tattooing should not be evaluated solely under a rational basis analysis. Instead, they should be analyzed under a proper First Amendment analysis and should stricken down or upheld when proper.

[i] Artistic Expression, ACLU, https://www.aclu.org/issues/free-speech/artistic-expression# (last visited Sep. 21, 2023).

[ii] Cate Lineberry, Tattoos: The Ancient and Mysterious History, Smithsonian Magazine (Jan. 1, 2007), http://www.smithsonianmag.com/history-archaeology/tattoo.html.

[iii] See id.

[iv] See Kelly-Ann Weimar, Outstanding Student Author: A Picture Is Worth A Thousand Words: Tattoos And Tattooing Under The First Amendment, 7 Phoenix L. Rev. 719, 724 (2014).

[v] Id.

[vi] See Shradha Dinesh, Katherine Schaeffer, 32% of Americans have a tattoo, including 22% who have more than one, Pew Research Center (Aug. 15, 2023) https://www.pewresearch.org/short-reads/2023/08/15/32-of-americans-have-a-tattoo-including-22-who-have-more-than-one/#.

[vii] See Euclid v. Ambler Realty Co., 272 U.S. 365 (1926).

[viii] See id.

[ix] See id. at 20.

[x] Carly Strocker, These Tats Are Made for Talking: Why Tattoos and Tattooing Are Protected Speech Under the First Amendment, 31 Loy. L.A. Ent. L. Rev. 175 (2011); see also Jordie Bacon, Tattoo Rights Inked Into The Constitution: Why Tattoos Are Protected Speech Under the First Amendment, uclawrev.org https://uclawreview.org/2016/05/18/tattoo-rights-inked-into-the-constitution-why-tattoos-are-protected-speech-under-the-first-amendment/ (last visited Sep. 21, 2023).

[xi] See Yurkew v. Sinclair, 495 F. Supp. 1248 (D. Minn. 1980); see also Hold Fast Tattoo, LLC v. City of N. Chi., 580 F. Supp. 2d 656 (N.D. Ill. 2008).

[xii] Hold Fast Tattoo, F. Supp. 2d at 660.

[xiii] St. John’s United Church of Christ v. City of Chi., 502 F.3d 616 (7th Cir. 2007) (citation omitted).

[xiv] See Buehrle v. City of Key W., 813 F.3d 973 (11th Cir. 2015); see also Coleman v. City of Mesa, 230 Ariz. 352, 284 P.3d 863 (2012); see also Anderson v. City of Hermosa Beach, 621 F.3d 1051 (9th Cir. 2010).

[xv] Buehrle, 813 F.3d at 976.

[xvi] Id. at 976 quoting Anderson v. City of Hermosa Beach, 621 F.3d 1051 (9th Cir. 2010).

[xvii] Id. at 977.

[xviii] Anderson, 621 F.3d  at 1062; see also Simon & Schuster, Inc. v. Members of the N.Y. State Crime Victims Bd., 502 U.S. 105, 112 S. Ct. 501 (1991) (holding that the First Amendment protects both the act of writing and the act of publishing the writing).