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.
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 Knuckle 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 Knuckle 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 Jordan’s motion for summary judgment and enjoin the City to include tattoo parlors in its zoning regulations.
NOONAN, Circuit Judge, concurring:
I concur in the holding of the court, and I agree with Judge Bybee’s robust defense of the values protected by the First Amendment.
I write to state that tattooing may be purely expressive, not that it always is. Any text may be expressive but is not invariably so. A laundry list is normally not protected by the First Amendment, but William Carlos Williams made a grocery list into poetry. Context is all. A tattoo punitively affixed is unprotected.
*1069 Accepting the fact that a tattoo may qualify as protected speech, I note that creation of a tattoo may involve danger to the health of its recipient, so that tattooing requires regulation for health different from regulation, say, of a press. Tattooing as a business may also require regulation to assure that it does not attract minors. Finally, while we are bound to protect the First Amendment value at issue, we are not bound to recognize any special aesthetic, literary, or political value in the tattooist’s toil and trade.