ANDERSON v. CITY OF HERMOSA BEACH

ew, 495 F.Supp. at 1253-54 (holding that "the actual process of tattooing is not sufficiently communicative" to come within the First Amendment, because "there has been no showing that the normal observer . . . would regard the process of injecting dye into a person's skin through the use of needles as communicative"); White, 560 S.E.2d at 423 ("Unlike burning [a] flag, the process of injecting dye to create [a] tattoo is not sufficiently communicative to warrant [ First Amendment] protection[]."). Similarly, the City argues that "[t]he process of injecting dye into a person's skin through the use of needles," in contrast with "any message conveyed by the tattoo image, is non-expressive conduct that must, in order to acquire First Amendment protection [under Spence], carry with it an intent to convey a message that will be understood by those who viewed it."

For the reasons set forth below, we disagree with the basic premise underlying the conclusions of both the City and the lower courts that have considered this issue. The tattoo itself, the process of tattooing, and even the business of tattooing are not expressive conduct but purely expressive activity fully protected by the First Amendment.

1. The Tattoo

There appears to be little dispute that the tattoo itself is pure First Amendment "speech." The Supreme Court has consistently held that "the Constitution looks beyond written or spoken words as mediums of expression." Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557, 569, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995). Accordingly, the Supreme Court and our court have recognized various forms of entertainment and visual expression as purely expressive activities, including music without words, Ward, 491 U.S. at 790, 109 S.Ct. 2746; dance, Schad, 452 U.S. at 65-66, 101 S.Ct. 2176; topless dancing, Doran v. Salem Inn, Inc., 422 U.S. 922, 932-934, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975); movies, Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501-02, 72 S.Ct. 777, 96 L.Ed. 1098 (1952); parades with or without banners or written messages, Hurley, 515 U.S. at 568, 115 S.Ct. 2338; and both paintings and their sale, White v. City of Sparks, 500 F.3d 953, 956 (9th Cir. 2007). We have afforded these expressive activities full constitutional protection without relying on the Spence test. See Hurley, 515 U.S. at 569, 115 S.Ct. 2338 ("[A] narrow, succinctly articulable message is not a condition of constitutional protection, which if confined to expressions conveying a `particularized message,' would never reach the unquestionably shielded painting of Jackson Pollack, music of Arnold Schoenberg, or Jabberwocky verse of Lewis Carroll." (citation omitted) (quoting Spence, 418 U.S. at 411, 94 S.Ct. 2727)).

Tattoos are generally composed of words, realistic or abstract images, symbols, or a combination of these, all of which are forms of pure expression that are entitled to full First Amendment protection. Tattoos can express a countless variety of messages and serve a wide variety of functions, "including: decorative; religious; magical; punitive; and as an indication of identity, status, occupation, or ownership." Mark Gustafson, The Tattoo in the Later Roman Empire and Beyond, in WRITTEN ON THE BODY: THE TATTOO IN EUROPEAN AND AMERICAN HISTORY 17 (Jane Caplan ed., Reaktion Books 2000); see also Alan Govenar, The Variable Context of Chicano Tattooing, in MARKS OF CIVILIZATION 209 (Arnold Rubin ed., Regents of the University of California 1988) (discussing the religious, social, and political purposes of tattooing); Clinton R. Sanders, Drill and Frill: Client Choice, Client Typologies, and Interactional Control in Commercial Tattooing Settings, in MARKS OF CIVILIZATION, supra, at 222-23 (discussing the "wide variety of reasons" people choose to get a tattoo, including symbolization of an interpersonal relationship, participation in a group, representation of key interests and activities, self-identification, and making a decorative or aesthetic statement). We do not profess to understand the work of tattoo artists to the same degree as we know the finely wrought sketches of Leonardo da Vinci or Albrecht Durer, but we can take judicial notice of the skill, artistry, and care that modern tattooists have demonstrated.

The 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. This distinction has no significance in terms of the constitutional protection afforded the tattoo; a form of speech does not lose First Amendment protection based on the kind of surface it is applied to. It is true that the nature of the surface to which a tattoo is applied and the procedure by which the tattoo is created implicate important health and safety concerns that may not be present in other visual arts, but this consideration is relevant to the governmental interest potentially justifying a restriction on protected speech, not to whether the speech is constitutionally protected. We have little difficulty recognizing that a tattoo is a form of pure expression entitled to full constitutional protection.

2. The Tattooing Process

Our next task is to determine whether the process of tattooing is purely expressive activity. We hold that it is. Spence's "sufficiently imbued" test has been reserved for processes that do not produce pure expression but rather produce symbolic conduct that, "on its face, does not necessarily convey a message." Cohen, 403 U.S. at 18, 91 S.Ct. 1780. Burning a flag, see Johnson, 491 U.S. at 411, 109 S.Ct. 2533, burning a draft card, see O'Brien, 391 U.S. at 370, 88 S.Ct. 1673, and wearing a black armband, see Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 505-06, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), can be done for reasons having nothing to do with any expression, and so require an interpretive step to determine the expressive elements of these processes.

However, neither the Supreme Court nor our court has ever drawn a distinction between the process of creating a form of pure speech (such as writing or painting) and the product of these processes (the essay or the artwork) in terms of the First Amendment protection afforded. Although writing and painting can be reduced to their constituent acts, and thus described as conduct, we have not attempted to disconnect the end product from the act of creation. Thus, we have not drawn a hard line between the essays John Peter Zenger published and the act of setting the type. Cf. Minneapolis Star Tribune Co. v. Minn. Comm'r of Revenue, 460 U.S. 575, 582, 103 S.Ct. 1365, 75 L.Ed.2d 295 (1983) (holding that a tax on ink and paper "burdens rights protected by the First Amendment"). The process of expression through a medium has never been thought so distinct from the expression itself that we could disaggregate Picasso from his brushes and canvas, or that we could value Beethoven without the benefit of strings and woodwinds. In other words, we have never seriously questioned that the processes of writing words down on paper, painting a picture, and playing an instrument are purely expressive activities entitled to full First Amendment protection.

Tattooing is a process like writing words down or drawing a picture except that it is performed on a person's skin. As with putting a pen to paper, the process of tattooing is not intended to "symbolize" anything. Rather, the entire purpose of tattooing is to produce the tattoo, and the tattoo cannot be created without the tattooing process any more than the Declaration of Independence could have been created without a goose quill, foolscap, and ink. 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.

We are further persuaded by the fact that the process of tattooing is more akin to traditional modes of expression (like writing) than the process involved in producing a parade, which the Supreme Court has held cannot be meaningfully separated from the parade's expressive product in terms of the constitutional protection afforded. See Hurley, 515 U.S. at 568, 115 S.Ct. 2338 (holding that "[p]arades are . . . a form of expression, not just motion," and noting "the inherent expressiveness of marching"). Thus, we have no difficulty holding that the tattooing process is entitled to the same First Amendment protection as the process of parading.

Moreover, it makes no difference whether or not, as the district court determined, "the customer has [the] ultimate control over which design she wants tattooed on her skin." The fact that both the tattooist and the person receiving the tattoo contribute to the creative process or that the tattooist, as Anderson put it, "provide[s] a service," does not make the tattooing process any less expressive activity, because there is no dispute that the tattooist applies his creative talents as well. Under the district court's logic, the First Amendment would not protect the process of writing most newspaper articles — after all, writers of such articles are usually assigned particular stories by their editors, and the editors generally have the last word on what content will appear in the newspaper. Nor would the First Amendment protect painting by commission, such as Michelangelo's painting of the Sistine Chapel. As with all collaborative creative processes, both the tattooist and the person receiving the tattoo are engaged in expressive activity.

3. The Business of Tattooing

Finally, the fact that the City's ban relates to tattooing businesses rather than the tattooing process itself does not affect whether the activity regulated is protected by the First Amendment. In City of Sparks, we held that even "an artist's sale of his original artwork constitutes speech protected under the First Amendment." 500 F.3d at 954 (emphasis added). We first emphasized the inherent expressiveness of the painting itself — in particular, that a painting "conveys[the artist's] sense of form, topic, and perspective[,] . . . may express a clear social position . . . [or] the artist's vision of movement and color, . . . [and] holds potential to `affect public attitudes' by spurring thoughtful reflection in and discussion among its viewers." Id. at 956 (citation omitted) (quoting Joseph Burstyn, 343 U.S. at 501, 72 S.Ct. 777). We then rejected "the city's argument that [plaintiffs] sale of his paintings removes them from the ambit of protected expression." Id.; see also City of Lakewood v. Plain Dealer Publ'g. Co., 486 U.S. 750, 756 n. 5,108 S.Ct. 2138, 100 L.Ed.2d 771 (1988) ("[T]he degree of First Amendment protection is not diminished merely because the [protected expression] is sold rather than given away."); Riley v. Nat'l Fed'n of the Blind of N.C., Inc., 487 U.S. 781, 801, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988) ("It is well settled that a speaker's rights are not lost merely because compensation is received; a speaker is no less a speaker because he or she is paid to speak.").

The City does not actually ban tattooing as such but simply does not permit tattoo parlors in its zoning regulations. In other words, so far as we can tell, the Code contains no provision that would prevent a person from performing a tattoo on a family member in his house for free. And the City's restrictions may not apply to cosmetic tattooing that may be performed in a doctor's office, clinic, or beauty parlor.

The Second Circuit reached a similar conclusion in Bevy v. City of New York, 97 F.3d 689 (2d Cir. 1996), where the court held that the sale of visual artwork is expression fully protected by the First Amendment. Id. at 695. The court rejected the city's argument that, unlike the production of art, "the sale of art is conduct" and should therefore be subject to Spence's test. Id. The court held that "[t]he sale of protected materials is also protected," id. (citing Lakewood, 486 U.S. at 756 n. 5, 108 S.Ct. 2138), reasoning that "without the money, the plaintiffs would not have engaged in the protected expressive activity," id. at 696.

City of Sparks and Bery stand for the proposition that because the sale of a painting is intertwined with the process of producing the painting, the sale is entitled to full constitutional protection without any need to resort to the Spence test. The same logic applies to the business of tattooing. Thus, we conclude that the business of tattooing qualifies as purely expressive activity rather than conduct with an expressive component, and is therefore entitled to full constitutional protection without any need to subject it to Spence's "sufficiently imbued" test. The business is subject to reasonable time, place, or manner restrictions (as explained in the next section), but the fact that the tattoo is for sale does not deprive it of its First Amendment protection.

B. The City's Ban as a Time, Place, or Manner Restriction

Having determined that tattooing is protected by the First Amendment, our next inquiry is whether the City's total ban on tattooing is a constitutional restriction on free expression.

A regulation that restricts protected expression based on the content of the speech is constitutional only if it with-stands strict scrutiny, see United States v. Playboy Entm't Group, Inc., 529 U.S. 803, 813, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000), meaning that it "is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end," Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983). However, Anderson does not contend that Hermosa Beach Municipal Code § 17.06.070 is a content-based restriction on speech. See supra n. 4. Rather, he argues that the City's regulation is an unconstitutional restriction on a means of expression.

Accordingly, we must determine not whether the City's regulation survives strict scrutiny but whether the City's regulation is a reasonable "time, place, or manner" restriction on protected speech. Ward, 491 U.S. at 791, 109 S.Ct. 2746 ("Our cases make clear . . . that . . . the government may impose reasonable restrictions on the time, place, or manner of protected speech. . . . "). This determination requires an inquiry into whether the restriction: (1) is "justified without reference to the content of the regulated speech"; (2) is "narrowly tailored to serve a significant governmental interest"; and (3) "leave[s] open ample alternative channels for communication of the information." Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984).

Before turning to this inquiry, we first emphasize that the Supreme Court "ha[s] voiced particular concern with laws that foreclose an entire medium of expression," because "the danger they pose to the freedom of speech is readily apparent — by eliminating a common means of speaking, such measures can suppress too much speech." City of Ladue v. Gilleo, 512 U.S. 43, 55, 114 S.Ct. 2038, 129 L.Ed.2d 36 (1994). A long line of Supreme Court cases indicates that such laws are almost never reasonable "time, place, or manner" restrictions. See, e.g., id. at 54-55, 114 S.Ct. 2038 (invalidating an ordinance forbidding the display of signs on private property); Schad, 452 U.S. at 75-76, 101 S.Ct. 2176 (ban on all live entertainment); Martin v. City of Struthers, Ohio, 319 U.S. 141, 145-49, 63 S.Ct. 862, 87 L.Ed. 1313 (1943) (ban on door-to-door distribution of literature); Jamison v. Texas, 318 U.S. 413, 416, 63 S.Ct. 669, 87 L.Ed. 869 (1943) (ban on distributing handbills on the public streets); Lovell v. City of Griffin, 303 U.S. 444, 451-52, 58 S.Ct. 666, 82 L.Ed. 949 (1938) (ban on distribution of pamphlets within the municipality); but see Kovacs v. Cooper, 336 U.S. 77, 89, 69 S.Ct. 448, 93 L.Ed. 513 (1949) (upholding a ban on sound trucks).

The interplay between the Court's often rigid statements about total bans on modes of expression and its traditional "time, place, or manner" test is not entirely clear. However, we need not determine whether the City's regulation is per se unconstitutional as a total ban of a means of expression or whether it is subject to a particularly stringent test, because we hold that it fails under even the traditional "time, place, or manner" test. We proceed now to that test.

1. Justified without Reference to Content

Anderson does not dispute that the City's regulation may be "justified without reference to the content of the regulated speech," Clark, 468 U.S. at 293, 104 S.Ct. 3065. The City's regulation bans all tattoo parlors, not just those conveying a particular kind of message or subject matter, and is purportedly justified based on health and safety concerns.

2. Narrowly Tailored

A reasonable "time, place, or manner" restriction must also be "narrowly tailored to serve a significant governmental interest." Id. In Ward, the Supreme Court clarified the meaning of this requirement:

[A] regulation of the time, place, or manner of protected speech must be narrowly tailored to serve the government's legitimate, content-neutral interests

but . . . it need not be the least restrictive or least intrusive means of doing so. . . . So long as the means chosen are not substantially broader than necessary to achieve the government's interest, . . . the regulation will not be invalid simply because a court concludes that the government's interest could be adequately served by some less-speech-restrictive alternative.

491 U.S. at 798, 800, 109 S.Ct. 2746 (emphasis added).

Anderson does not dispute that the City has a significant interest in regulating tattooing because of the health and safety concerns implicated by this process. Rather, Anderson argues that the regulation is substantially broader than necessary to achieve this interest because the interest could be achieved by regulations ensuring that tattooing is performed in a sanitary manner rather than outright prohibition of tattooing. The City disagrees, pointing out that Los Angeles County has only one health inspector for nearly 300 tattoo establishments and over 850 tattooists, and that there are no statewide regulations relating to sterilization, sanitation, and standards for tattooists. "Put simply," the City argues, "there are insufficient resources to monitor the 8[5]0 tattooists operating in Los Angeles County, including the many who, like Plaintiff, are self-taught and operating in backrooms and basements."

As other courts have found, "tattooing is a safe procedure if performed under appropriate sterilized conditions." Yurkew, 495 F.Supp. at 1252; see also Centers for Disease Control and Prevention, supra. Tattooing is now permitted (subject to regulation) in all fifty states, with Oklahoma becoming the last to lift its ban as of November 1, 2006. Janice Francis-Smith, OK Governor Henry Signs Tattoo Legalization into Law, OKLA. CITY J. REC. (May 11, 2006), available at http://findarticles.com/p/ar ticles/mi_qn4182/is_20060511/ai_nl6412421 (last visited May 30, 2010). The City has presented no evidence that tattooing in the City could not be regulated in such a way that addresses the City's legitimate public health concerns. Rather, it simply argues that currently, there are insufficient resources in place to address these concerns. But the provision vel non of such resources is a matter within the City's control. Without more, we cannot approve a total ban on protected First Amendment activity simply because of the government's failure to provide the resources it thinks are necessary to regulate it.

In sum, although a total ban on tattooing might be the most convenient way of addressing the City's health concerns, the City has given us no reason to conclude that these concerns cannot be adequately addressed through regulation of tattooing rather than a total ban on tattoo parlors. Thus, particularly in light of the Supreme Court's historical "concern with laws that foreclose an entire medium of expression," City of Ladue, 512 U.S. at 55, 114 S.Ct. 2038, we have little difficulty concluding that the City's ban is "substantially broader than necessary to achieve the [City's] interest," Ward, 491 U.S. at 800, 109 S.Ct. 2746.

3. Alternative Channels

Even if the City's regulation were narrowly tailored to serve its health and safety interests, a reasonable "time, place, or manner" restriction on protected speech must also "leave open ample alternative channels for communication of the information." Clark, 468 U.S. at 293, 104 S.Ct. 3065. The City argues that, although its regulation restricts tattooists' ability to apply images to human skin via the injection of ink, there are alternative means available for applying the exact same words, images, and symbols to skin, such as air-brushing or the use of natural henna paste to create temporary tattoos. The City also points out that the tattooist could render his designs "on a traditional canvas or other media," such as a T-shirt. In other words, the City believes that "[t]here is nothing inherently or distinctly expressive about rendering . . . designs on the skin" using the ink-injection method.

We disagree. In City of Ladue, the defendant city made an argument similar to the one the City makes here. The City argued that its ban on signs on private property was "a mere regulation of the time, place, or manner of speech because residents remain free to convey their desired messages by other means, such as hand-held signs, letters, handbills, flyers, telephone calls, newspaper advertisements, bumper stickers, speeches, and neighborhood or community meetings." 512 U.S. at 56, 114 S.Ct. 2038 (quotation marks and emphasis omitted). The Supreme Court was

not persuaded that adequate substitutes exist for the important medium of speech that Ladue has closed off. . . . Displaying a sign from one's own residence often carries a message quite distinct from placing the same sign someplace else, or conveying the same text or picture by other means. Precisely because of their location, such signs provide information about the identity of the `speaker[,]' . . . [which] is an important component of many attempts to persuade.

Id. (emphasis added). The Court held the ordinance unconstitutional because the city had "completely foreclosed a venerable means of communication that is both unique and important." Id. at 54, 114 S.Ct. 2038.

As in City of Ladue, the City of Hermosa Beach has "completely foreclosed a venerable means of communication that is both unique and important." Id. at 54,114 S.Ct. 2038. Like music, tattooing is "one of the oldest forms of human expression," Ward, 491 U.S. at 790, 109 S.Ct. 2746, as well as one of the world's most universally practiced forms of artwork. See Jane Caplan, Introduction, in WRITTEN ON THE BODY, supra, at xi ("Physical evidence for the practice [of tattooing] survives from the late fourth millennium BC in Europe and from about 2000 BC in Egypt, and tattooing can be found in virtually all parts of the world at some time."). And it has increased in prevalence and sophistication in recent years. See Juliet Fleming, The Renaissance Tattoo, in WRITTEN ON THE BODY, supra, at 61 ("[F]or the last quarter-century the West has been enjoying a `tattoo renaissance'; a movement characterized by refinements of conception . . .; by technical developments . . .; and by the refinement of procedure and equipment. . . ."); Susan Benson, Inscriptions of the Self: Reflections on Tattooing and Piercing in Contemporary Euro-America, in WRITTEN ON THE BODY, supra, at 240 (discussing how the "tattoo community" has "bec[o]me more visible and more organized," and noting that "over the past 30 years the number of tattoo establishments has grown rapidly in absolute terms, both in Europe and America"). According to a 2006 survey by the Pew Research Center, 36 percent of people from ages 18-25, 40 percent of people from ages 26-40, and 10 percent of people from ages 41-64, had or once had at least one tattoo. The Pew Research Center for the People the Press, How Young People View Their Lives, Futures and Politics: A Portrait of "Generation Next" 21 (Jan. 9, 2007), available at http://people-press.org/reports/pdf/300.pdf (last visited May 30, 2010).

Most importantly, a permanent tattoo "often carries a message quite distinct" from displaying the same words or picture through some other medium, and "provide[s] information about the identity of the `speaker.'" City of Ladue, 512 U.S. at 56, 114 S.Ct. 2038. A tattoo suggests that the bearer of the tattoo is highly committed to the message he is displaying: by permanently engrafting a phrase or image onto his skin, the bearer of the tattoo suggests that the phrase or image is so important to him that he has chosen to display the phrase or image every day for the remainder of his life. The relative permanence of the tattoo can also make a statement of "autonomy and self-fashioning" — "of ownership over the flesh" and a "defen[se of] the embodied self against external impositions." Benson, supra, at 251-52 (quotation marks omitted); see also id. at 251 ("[T]he permanence of the tattoo establishes . . . an instantiation of the will in defiance of process and time: `you can never get it off.'"); id. at 250-251 (discussing how "the idea of the permanence of the tattoo is critical" in that it is linked "to ideas of the body as property and possession . . . indeed as the only possession of the self in a world characterized by accelerating commodification and unpredictability"). Finally, the pain involved in producing a permanent tattoo is significant to its bearer as well: "Pain, like the tattoo itself, is something that cannot be appropriated; it is yours alone; it stands outside the system of signification and exchange that threatens the autonomy of the self." Id. at 251. These elements are not present — or, at least, not nearly to the same degree — in the case of a temporary tattoo, a traditional canvas, or a T-shirt. Thus, we disagree with the City that "[t]here is nothing inherently or distinctly expressive about rendering . . . designs on the skin" using the ink-injection method.

The City analogizes this case to Kovacs, the only case in which the Supreme Court has upheld a total ban on a medium of communication. In Kovacs, the Court up-held a Trenton, New Jersey, ordinance banning sound trucks — vehicles with attached sound amplifiers — on public streets. 336 U.S. at 89, 69 S.Ct. 448. The Court emphasized Trenton's interest in preventing "distractions . . . dangerous to traffic" and preserving "the quiet and tranquility" of the residential areas. Id. at 87, 69 S.Ct. 448. The Court also reasoned that the fact "[t]hat more people may be more easily and cheaply reached by sound trucks . . . is not enough to call forth constitutional protection." Id. at 88-89, 69 S.Ct. 448. The City argues that tattooing is just like a sound truck — it might be a more effective means to disseminate a message to the public, but the same message may be transmitted by other means. Cf. Hold Fast Tattoo, 580 F.Supp.2d at 660 ("The act of tattooing is one step removed from actual expressive conduct, which is similar to a sound truck, which enables each customer to express a particularized message, but the sound truck vehicle itself is not expressive.").

The analogy to sound trucks is flawed. As discussed above, a tattoo is not merely a "more effective" means of communicating a message; rather, the tattoo "often carries a message quite distinct" from other media. City of Ladue, 512 U.S. at 56, 114 S.Ct. 2038 (emphasis added). In light of the long line of cases in which the Supreme Court has invalidated total bans on a medium of communication, it cannot be true that any medium of communication may be banned based on the reasoning that it is merely a "more effective" means of communicating a message; by this logic, after all, a canvas could be considered merely a "more effective" means of displaying a painting than lined paper. Seeming to recognize that its reasoning was in some tension with its earlier cases, the Kovacs Court explained that its judgment also rested on the fact that no one within range of the sound truck could avoid the broadcast:

While this Court . . . has invalidated an ordinance forbidding a distributor of pamphlets or handbills from summoning householders to their doors to receive the distributor's writings, this was on the ground that the home owner could protect himself from such intrusion by an appropriate sign that he is unwilling to be disturbed. . . . The unwilling listener is not like the passer-by who may be offered a pamphlet in the street but cannot be made to take it. In his home or on the street he is practically helpless to escape this interference with his privacy by loud speakers except through the protection of the municipality.

Kovacs, 336 U.S. at 86-87, 69 S.Ct. 448 (quotation marks and footnote omitted) (citing Martin, 319 U.S. at 143, 148, 63 S.Ct. 862).

In this sense, the case at hand is easily distinguishable from Kovacs and indistinguishable from the Court's other cases involving total bans on modes of expression. A tattoo does not force "unwilling listener[s]" to heed its message any more than the expletive-laden jacket at issue in Cohen. A tattoo is displayed passively on the person's body, such that a member of the general public can simply avert his eyes if he does not wish to view the tattoo (assuming the tattoo is visible to the public at all). In other words, a tattoo effects no additional intrusion of privacy on members of the public beyond other types of expression clearly protected by the First Amendment. Thus, the City's tattoo regulation is subject to the principle in Martin, Schad, and City of Ladue, which, read alongside Kovacs, indicate that if a unique and important mode of expression does not force unwilling listeners to heed its message in an intrusive manner, the government may not ban it regardless of the availability of alternative (and less distinctive) means of communicating a similar message.

IV. CONCLUSION

In sum, we hold that the tattoo itself, the process of tattooing, and the business of tattooing are forms of pure expression fully protected by the First Amendment. We further hold that the City's total ban on tattoo parlors in Hermosa Beach is not a reasonable "time, place, or manner" restriction because it is substantially broader than necessary to achieve the City's significant health and safety interests and because it entirely forecloses a unique and important method of expression. Moreover, no genuine issue of material fact exists with respect to the constitutionality of the regulation* Thus, we hold that Hermosa Beach Municipal Code § 17.06.070 is facially unconstitutional to the extent that it excludes tattoo parlors, and we reverse the district court's order granting summary judgment in favor of the City and remand with instructions to grant Anderson's motion for summary judgment and enjoin the City to include tattoo parlors in its zoning regulations.

REVERSED.