Wearing his heart on his skin, tattoo parlor owner seeks 1st Amendment protection
A tiny spade, like a black teardrop, is etched on the skin under Johnny Anderson’s right eye. It’s a tattooed salute to the World War II soldiers of Easy Company who he says wore the symbol on playing cards tucked into their helmets as amulets while fighting to liberate Nazi-occupied France.
The spade joins a human canvas of skin-deep statements about Anderson’s politics, faith and values. His body is covered with images of snakes, eagles, Christian iconography and assorted Americana, in what he regards as an individual’s most ardent and enduring form of expression.
But one man’s flesh-bound free speech is another’s idea of unhealthful mutilation and underclass war paint. In the city of Hermosa Beach and other upscale oceanfront communities, tattooing is effectively banned for what city officials say is a risk to the public’s health, safety and welfare.
Anderson, owner of the Yer Cheat’n Heart tattoo parlor in Gardena, said he thinks his store is in a seedy neighborhood and sought to move to a vacant storefront in Hermosa Beach in 2006. His request to open a parlor there was denied on grounds that zoning laws don’t allow tattooing anywhere in the city. He sued in federal court in Los Angeles, alleging suppression of his 1st Amendment right to impart artistic expression on customers’ bodies.
The tattoo artist lost the first round of his legal challenge in 2008, when a federal judge deemed tattooing “not sufficiently imbued with elements of communication” to qualify as constitutionally protected speech.
Anderson took his case to the U.S. 9th Circuit Court of Appeals this month, and some constitutional law scholars predict the outcome could be different in what would be the first — and potentially precedent-setting — federal appellate decision on whether the tattoo artist is engaged in 1st Amendment-protected activity when designing and applying custom tattoos.
Anderson blames his failure in the lower court on the persistent impression, especially among older Americans, that tattoo parlors attract an unsavory clientele.
“This isn’t the greatest neighborhood,” he said of his current location, kitty-corner from the Hustler Casino and flanking South Vermont Avenue’s railroad tracks. “A lot of my customers are women, and I have to walk them to their cars after dark.”
Anderson, 33, conducts a brisk business at his six-chair salon, where customers pay $150 an hour for his services. But he would prefer to be closer to his home in Redondo Beach and better positioned to serve walk-in traffic from the beachfront.
“They believe that it’s going to bring the wrong element into their town — the undesirables, so to speak,” Anderson said of what he perceives is the beach communities’ fear of an invasion of ex-cons and bikers. “But that’s just such an outdated way of thinking. Everybody gets tattoos these days.”
Although Hermosa Beach and other cities don’t specifically ban tattooing, their zoning laws don’t recognize it as a permissible use.
A decorative art that dates back at least 5,000 years, tattooing made its mark on Oetzi the Ice Man, the preserved corpse discovered on a mountain between Austria and Italy in 1991, as well as on mummies from ancient Egypt. The representations of spiritual and earthly symbols are believed to have been status symbols in Japan, Polynesia, India and among the Maori tribe of New Zealand.
One in five American adults has at least one tattoo, Anderson reports in the legal papers filed to back his appeal.
The artists and their clients insist that the inked images speak to their most profound beliefs, loyalties and emotions.
Shane Cherry is a 49-year-old engineer with a wife and two teenage daughters in Torrance, another municipality that has shut its doors to tattooing. On a recent weekday afternoon, after careful Internet research on consumer satisfaction with local artists, Cherry turned up at Anderson’s salon with a vague idea of a symbol he wanted on his right shoulder as a tribute to his late father.
Stanley Cherry, a sculptor, had used a motif featuring two cherries hanging from a branch to sign his artworks. Anderson helped the son re-create the design on paper, then applied it in a two-hour procedure with the tattoo gun.
Custom-designed tattoos account for about 95% of his business, said Anderson, who counts students, soccer moms, professionals and churchgoers among his clients. Only about one in 20 wants a tattoo from the prepared “flash” displayed on his parlor walls, he said.
His attorney, Robert C. Moest, likens the Hermosa Beach ban on tattooing to the banning of printing presses. The messages resulting from both are clearly forms of communication, he said.
At least one constitutional law professor agreed.
“If it’s art, it’s art, and art gets protection,” UC Berkeley law professor and 1st Amendment expert Jesse Choper said of the debate over whether tattoos are protected speech. Hermosa Beach might have a chance of prevailing with the 9th Circuit judges, he said, if it imposed regulations limiting the practice to certain parts of the city or required the involvement of medical professionals. But he said he doubts its total ban on tattoo parlors will pass constitutional review.
Hermosa Beach officials argue in court papers that Anderson isn’t engaged in expression but “merely providing a service.” The city also contends that tattooing poses health risks, creates “aesthetic concerns,” generates little tax revenue and would impose a financial burden on the city to provide adequate inspection and regulation.
Hermosa Beach officials have responded to Anderson’s claims of 1st Amendment violation by pointing out that other means of expression are available for his images, like silk-screening on T-shirts or posters.
“T-shirts can be taken off. This is a different kind of expression,” Anderson said of tattoos. “And one that is saying something pretty important if someone is wearing it for the rest of their life.”