There is an interesting free-speech case filed in South Carolina brought by a tattoo parlor challenging a state law that not only bars tattoo facilities from 1000 feet of churches, schools, or playgrounds, but also bans tattoos on the face, neck, or head. The case presents a common challenge for free speech advocates like myself. I have a visceral dislike for tattoos (particularly on the face), but I believe that they are a form of free expression. I, therefore, view the South Carolina law, S.C. Code Ann. § 44-34- 100, as unconstitutional under the First Amendment. (The litigants include claims under 42 U.S.C. § 1983 and the 14th Amendment).
The lawsuit was brought by Pacific Legal Foundation on behalf of a New York tattoo shop, Tiny Zaps, that is interested in opening a location in South Carolina. Tiny Zaps argues that “Tattoos are a form of artistic expression protected by the First Amendment. They communicate ideas, commemorate milestones, express beliefs, and allow people to present themselves to the world through permanent artwork created in collaboration with tattoo artists.”
It notes that the limits on store location make it difficult to open a store given the many churches, schools, and playgrounds in the state. However, it is the limits on the placement of the tattoo itself that is most interesting from my perspective. It argues that “Tattoo artists do not merely apply ink to skin. They collaborate with customers to create artistic works that often carry deeply personal expressive significance. The resulting artwork derives meaning not only from its design, but also from its placement on the body.”
It also argues that South Carolina has long been distinctly anti-tattoo expression: “South Carolina has long treated tattooing as disfavored expression. Until 2004, South Carolina was one of only two states that outlawed tattooing.”
In 2002, I wrote about a South Carolina challenge in the Los Angeles Times about the unconstitutionality of a state law barring tattooing. However, the South Carolina Supreme Court ruled that “the danger associated with the activity of tattooing, whether artwork or not, is a legitimate reason to regulate it.” In my criticism of the Court, I disagreed with the premise that “a tattoo might be a form of protected expression, the ‘process’ of tattooing was not protected.” I noted that “this is akin to treating the Declaration of Independence as protected speech but not Benjamin Franklin’s printing of the document.”
As has noted, that case was declined by the Supreme Court in a disappointment for many of us, but later courts have reached contrary decisions from the South Carolina Supreme Court’s opinion in White v. State.
This will now give us a second bite at the apple to get this right. Despite my aversion to tattoos, they are clearly expressive. Indeed, some would say that they are downright educational:
“Lydia, oh Lydia, that encyclopydia
Oh Lydia the Queen of Tattoo
On her back is the Battle of Waterloo
Beside it the wreck of the Hesperus, too
And proudly above waves the red, white, and blue
You can learn a lot from Lydia”
In support of the free speech case, I call on the ultimate counsel for the challengers to explain the cultural and educational value of tattoos. I give you Groucho Marx:
It’s commerce. Commerce can be regulated.
A strip mall block of: porn shop, tattoo parlor, bar, abortion clinic, weed dispensary, vegan restaurant.
One stop shopping
“this is akin to treating the Declaration of Independence as protected speech but not Benjamin Franklin’s printing of the document.”
He needs a better metaphor. The first amendment not only protects speech, it also protects the press. Which at the time of the adoption of the amendment was a printing press. The protection extended to all printed material and not just newspapers.
In my criticism of the Court, I disagreed with the premise that “a tattoo might be a form of protected expression, the ‘process’ of tattooing was not protected.” I noted that “this is akin to treating the Declaration of Independence as protected speech but not Benjamin Franklin’s printing of the document.”
In my opinion, the above is not a great argument by the otherwise sharp Professor Turley. Tattooing is a procedure that modifies the human body in a way that can have adverse health consequences (bacterial and viral infections, allergic reactions, chronic skin inflammation, and scarring). The government has a much greater interest in regulating that practice than a process that merely puts ink onto paper.
I think it would be better to argue that, while there is a rational basis for ensuring tattooists hold valid licenses showing they adhere to health standards, there is no similar government interest in regulating (a) the tattoo’s placement on the body, (b) the location of the tattooing business, or (c) the content of the message expressed by the tattoo.
>”or (c) the content of the message expressed by the tattoo.
Clearly, some tattoos are better than others, ,,
https://www.youtube.com/shorts/7oa9n4eCGns
Wonderful post, Professor! And even though Karl has captured the hearts of the American Left, I still say that Groucho is, hands down, the favorite Marx brother!
Tattoos are like dope, they’re addictive. Many people are drunk or high when they get them. They’re “cool” while they’re young but as people age, which everyone does. many wish they didn’t have them. I knew a lot of people in the military who got them then wished they didn’t.
Sam – very interesting about tattoos being an addiction. That never occurred to me, but seeing highly-tattooed individuals, I believe you are correct.
AI Overview:
While getting tattoos is not a clinical or chemical addiction, many people feel a strong urge to get more because the process triggers a natural rush of endorphins, adrenaline, and dopamine in the body. Body chemistry: Pain from the needle causes your body to release endorphins and adrenaline to help you cope, which creates a happy, euphoric feeling. The art collector mindset: Most people simply enjoy collecting body art, planning new pieces, or transforming their look much like collecting stamps or paintings. Excitement and control: Choosing a design gives people a fun way to express their identity or celebrate personal life milestones.
I hope that in the trial, Groucho is called as an expert witness.
In other cultures, the exposure of tattoos is, or can be, forbidden. With a tattoo, one is not going to be able to enjoy the pleasures of a Japanese on-sen (hot spring spa).
I completely agree with Professor Turley.
While tattoos may not be my thing, I know the Founders would never have approved of violating 1A by restricting someone’s right to express themselves with a tattoo.
The fact that some are offended, or think it’s a sign of mental illness, or any other ridiculous objection is irrelevant.
If it doesn’t affect you directly, you don’t get to tell someone else what they can do.
Anyone who thinks they have the right to tell another person they can’t get a tattoo anywhere on their body they want was raised wrong, and they are inconsequential while also being un-American.
My opinion is if the morons want a tattoo that limits their opportunities in life like a decent job let them do it to themselves.
A person might go outside the law’s jurisdiction to get a tattoo. Hence, free speech isn’t affected.
Wrong. Limiting the PLACE of free speech very much affects free speech.
There are VERY STRICT limits on the government restricting the “place” of protected speech. And these limits are at their most stringent when the speech is on private property.
You’re not wrong, but the comment you responded to was bait, and you bit.
LMAO “I was stupid on purpose.”
Riiiiiiiight
I’ve noticed these very short, obviously ridiculous, comments. I ignore them because they are just baiting a response.
No, you made the comment. And are now trying to backpedal.
No, I’m a different anonymous. I would never say the stupid stuff the baiting anonymous said.
And no one ever argued that because some states allow abortion, abortion bans are ok. Straw man.
So they go from affected to infected… I see beautiful young women, 20 years old and already sleeved out, dirt legs, tramp stamps the works…pierced everything, future porn stars.
(1) As to the 1000-foot restriction, it is noted that there are no codified zoning/location restrictions for either body-piercing (e.g., tongue studs, nipple rings, navel jewelry, etc.) or massage parlor businesses. In other words, these businesses are often located near schools, churches, playgrounds, etc., particularly in downtown areas. South Carolina prohibits the tattooing of minors under the age of 18; even “attractive nuisance” arguments could not hold water.
(2) As to the head, neck location restrictions, it is noted that, as the Complaint alleges, “South Carolina
already comprehensively regulates tattooing through licensing, sanitation, sterilization, training, inspections, and customer-protection requirements.” These would be similar to those regulating body piercings (tongue studs, nipple rings, navel jewelry, etc.)
(3) Adding to (2) above, in the dissenting opinion expressed in the White case cited by Professor Turley, Justice Waller defended tattoos as expressive art under the First Amendment. “Indeed, it would be ludicrous to suggest that because Michelangelo chose the ceiling of the Sistine Chapel upon which to paint, his renderings are not communicative.”
Conclusion: This is a case of distasteful vs. illegal.
My bet (and hope): this case is a loser for SC.
Well said.
Well said.
“This is a case of distasteful vs. illegal.”
Completely agree.
“South Carolina has long treated tattooing as disfavored expression. Until 2004, South Carolina was one of only two states that outlawed tattooing.”
Any idea what’s behind SC’s animus toward tattoos?
Sam, my guess is health reasons, hepatitis, etc., because I know it was banned in NYC, not NY, around 1960.
I should have added that in the East Village, piercings became very common, and walking on the street one could see people having multiple piercings all over the body and using one’s own weight to stretch them. As everyone knows, rings and jewelry are everywhere.
Face tatoos and identity? Any restrictions? The tatoo is as permanent as a nose.
Wait, what? I live in South Carolina. I’ve seen people with tattoos on their faces… Maybe they are some of the people, including me, who have moved here from somewhere else. I think they are stupid, but c’est la vie.
Yes, the location might be hard in some aeeas, but not impossible. Off the top of my head, I can think of three tattoo parlors in the growing town about 20 miles from Charleston where I live and I have zero interest in getting one.
Responding to your request for the cultural and educational value of tattoos, in the spirit of Lydia, I offer:
On her chest, a barmaid from Sale,
Had tattooed all the prices of ale.
And on her behind,
For the good of the blind,
Was the same information, in Braille.
Sorry, I couldn’t resist.
that is……………………..unfortunately……………………………..repulsively clever/funny.
Mark – good one!
Gosh, let me think about this, trying to prioritize.
America is in a war with Iran, $40 Trillion Dollars in debt, freaking idiot Democrats embracing Communism, food and gas prices off the charts, still have millions of illegals in America, divided government, and an article about should we give two $hits about State government regulating tattoos.
As Americas greatest Buffoon once said, “C’mon Man”.
There are many blogs and news outlets discussing the political issues you mention. Along the top of this page is a list of the various issues to which Professor Turley devotes these articles. They are not all politics, thank God.