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My tattoos are ‘expressive activity’

David Ziemer

David Ziemer

This may seem hard for you younger attorneys to believe, but when I was young, tattoo parlors were outlawed in Milwaukee.

That’s right: students could smoke cigarettes right on high school property; the 18-year-old drinking age was observed only in the breach; and parents watched on with disinterest as their small children enjoyed throwing heavy metal missiles called “Jarts” as high over their heads as they could (you older personal injury attorneys must have had a field day with the manufacturers of Jarts).

But Heaven forbid a grown man should get a tattoo.

These days, it seems everyone has tattoos. Fortunately, there is now persuasive case law from the Ninth Circuit, holding that “tattooing is purely expressive activity fully protected by the First Amendment,” and a government ban on tattoo parlors is not a reasonable time, place, or manner restriction. Anderson v. City of Hermosa Beach, No. 08-56914 (9th Cir., Sept. 9, 2010).

The conclusion seems self-evident. Obviously, the court cited to Cohen v. California, 403 U.S. 15 (1971), several times in reaching its decision. I imagine it would be an unenviable task for any city attorney to have to argue to a court that, even though the First Amendment guarantees the right to wear a jacket proclaiming “F- the Draft,” it does not protect the same sentiment permanently grafted on someone’s skin.

I, of course, have several tattoos. When you are a middle-aged man living in a studio apartment downtown, while still paying a mortgage and confiscatory property taxes on a big house in the suburbs that someone else lives in, getting tattoos is something you do. They just seem to come along naturally, kind of like the varied inappropriate relationships inherent to the lifestyle.

Needless to say, they are all above my elbows, and below my neckline. After all, a man in my position has to be able to go golfing in a polo shirt without having any ink showing.

But like I said earlier, I’d sure hate to be the city attorney who has to argue that my tattoos are not “expressive activity.”

On my right bicep, I have the citation to Lochner v. New York, 198 U.S. 45 (1905). It’s a rather nasty-looking thing, a string of letters and numbers that call to mind what you’d expect to see in a concentration camp. But, that’s the whole point; it’s intended as a protest. I had it done on the 100th anniversary of Lochner to express my righteous indignation that it is no longer binding precedent.

I also have an oak leaf tattooed on my left tricep. In contrast to the Lochner tattoo, this one is actually very attractive-looking. But it too is imbued with a political message.

If you are a fan of the band Rush, and know the song “Trees,” then you know about the trouble in the forest between the maples and the oaks. And if you’re reading this column, then you know which side I’m on.

I’m even thinking of getting another tattoo. The other day, I saw a hippie wearing a Che Guevara T-shirt that said, “Viva la revolucion.”

A tattoo proclaiming “Viva la corporacion” would be succinctly expressive of my views on the question.

Then again, maybe I’ll just get the album cover from King Crimson’s “Larks’ Tongues in Aspic” tattooed on my arm instead.

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