The Ninth Circuit Court of Appeals has again attempted to clarify the boundaries of “free speech” in Anderson v. Hermosa Beach, 08-56914, the most recent ruling in long string of federal free speech jurisprudence. The law at issue was a Hermosa Beach City Ordinance banning the operation of tattoo parlors within city limits. The constitutionality of the law was challenged by Johnny Anderson, a local resident that wished to open a tattoo parlor in Hermosa Beach.
The Ninth Circuit found that tattooing is an expressive activity and thus afforded the full protection of the first amendment, meaning that a blanket ban on tattoo parlors is a blanket ban on speech. Judge Jay Bybee wrote the opinion for the three judge panel. “We hold that tattooing is purely expressive activity fully protected by the First Amendment, and that a total ban on such activity is not a reasonable `time, place, or manner’ restriction.” Put simply, the crux of the court’s decision was whether the city’s health concerns were great enough to justify a total ban on speech.
For there to be a reasonable “time, place, or manner” restriction on speech, the restriction must serve an important objective (not involving the suppression of speech), that the law is narrowly tailored, and that there remain ample alternative means of communication. In the case at hand it seems pretty clear that the law is not narrowly tailored since it bans all speech and there are no alternative means of communication. However, this case is interesting because the ruling by the Ninth Circuit contradicts numerous other circuit courts that have been faced with an almost identical set of facts. The City of Hermosa Beach indicated that it will analyze the ruling before deciding to appeal, but considering the US Supreme Courts history of accepting free speech appeals and having a considerable split amongst the circuit courts, it seems likely the court would grant certiorari.