Thursday, September 09, 2010

Anderson v. City of Hermosa Beach (9th Cir. - Sept. 9, 2010)

You've got a First Amendment right to go to a tattoo parlor in the Ninth Circuit.

On the merits, this isn't that surprising. Tattoos are clearly expressive and protected by the First Amendment. Producing art on a canvas is protected speech, and that analysis doesn't change much merely because the canvas is your body. Sure, tattoos have hygienic concerns that oil paintings don't. But that only permits time, place and manner regulation (e.g., certification, inspection, etc.), not an outright ban. The Ninth Circuit accordingly unanimously strikes down Hermosa Beach's ban on commercial tattoo studios.

I think this case also reflects a broader jurisprudential theme as well. IMHO, this case would have come out differently twenty years ago. Did the First Amendment, or relevant doctrine, change in the meantime? No. Of course not. The only thing that's different is the prevalence -- and social acceptance -- of tattoos.

It's a common refrain among a certain group that "elite" opinion drives judicial decisionmaking. Guess what? They're right. At least in a certain (and I think small) category of cases. This one being one of them. We're just far more used to seeing tattoos nowadays than we were before, and we're far more accepting of them. Elite opinion has changed, in part because elites -- and their kids, and their clerks -- now sport the things. It's hard to think that tattoos are disgusting and/or bereft of social or expressive significance when you, your friends, your wife, or your clerks sport 'em.

Indeed, this is one of those rare examples of elite opinion "catching up" to mass opinion. Usually the critique is that elite judicial decisionmakers ignore the views of the public and instead use the Constitution to enshrine their own (minority) position notwithstanding public opinion. Think gay marriage or desegregation, which was disproportionately supported by elites. But here's a case where a practice was accepted by non-elites (think: bikers, etc.) long before it was accepted and adopted by upper class judges and their cohorts. So it's a little bit different, but it still reflects an observational truth -- subject to a normative dispute -- that social conditions, including but not limited to elite opinion, may in some cases dispositively affect the outcome of a case.

I think you might agree with me on that one. So let me go even more out on a limb. There are plenty of cases -- even recent ones -- in which courts have rejected claims identical to the ones accepted by the Ninth Circuit today and held that tattoo parlor ban do not violate the First Amendment. Illinois in 2008; Virginia in 2007; South Carolina in 2002; Indiana in 1986; New York in 1978; etc. What explains those cases? Well, for one thing, the Ninth Circuit obviously diverges politically from some of those other jurisdictions. For another, time; New York in 1978 is different than New York in 2010.

But here's another difference. Dollars to doughnuts says that the number of law clerks with tattoos is far, far greater in the chambers of Judges Bybee, Noonan and Clifton -- located in Las Vegas, San Francisco, and Honolulu, respectively -- than in, say, the Virginia Court of Appeals. In part because we're on the West Coast. And in part because, among the judicial clerkship set, there may be a sense that having an incredibly stunning resume -- which Ninth Circuit clerks clearly have -- grants you a little expressly "leeway" and allows you to, say, get a tattoo without limiting your career options in a way that might not exist if your resume is one for which your best shot at clerking is in the Virginia Court of Appeals. All of this even assuming that the latter tribunal even has recent-graduate law clerks, which often do not exist in the state tribunals in which many of the previous tattoo cases have been heard.

All of this is a way of saying that, in addition to friends with tattoos, I think that clerks with tattoos -- which, for many judges, may be their principal professional exposure to the practice -- might well have a fairly big impact on how a judge might view cases like this one. Wholly apart from the fact that having a tattoo (or innumerable friends with tattoos) would almost certainly affect the attitude of the relevant clerk working on the case, writing a draft opinion, talking to his or her judge, etc.

Not that I have any knowledge of the particular bodywork, if any, in the relevant chambers at issue here. But I'd be shocked if these places were entirely tat-free.

Wholly apart from the things that might influence the outcome, again, doctrinally, I think this is the right result. Even apart from doctrine, the result also makes sense. I mean, it's Hermosa Beach, for goodness sake. You mean to tell me it's permissible to down a dozen beers, smoke three packs of cigarettes, visit a local head shop, and partake of some "medicinal" chronic -- all of which, I assure you, you can easily do in Hermosa -- and yet it's not okay to get a tiny little rose tattoo on your ankle? Come on.

I doubt the Supreme Court will take this one up or that they'll be an en banc call, so I think it's a green light for tattoo parlors in Hermosa Beach and elsewhere. So I think the very first tattoo out of these places should be one applied to the butt on of a patron that says: "Brought to you by the Ninth Circuit."

I might even volunteer.