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 Meagan O’Rourke 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: