ART EXPRESSED ON A LIVING CANVAS: PROPOSING A BALANCE BETWEEN THE PROTECTION OF FREE EXPRESSION AND THE GOVERNMENTAL INTEREST IN REGULATING THE TATTOO INDUSTRY

Abstract

“If the Lord wanted you to have a tattoo, He would have put it on you.” Jake Knotts, former state Senator of South Carolina, uttered this statement during a legislative debate in an attempt to justify a state law effecting a complete ban on the practice of tattooing. While the South Carolina legislature initially passed the law in response to a hepatitis outbreak in New York City in the early 1960s—blamed on the use of dirty needles in tattoo parlors—the justification for the law rested on religious grounds. Although other states enacted similar prohibitions on tattooing, those laws were gradually lifted or struck down in court, primarily due to a substantial decrease in hepatitis cases resulting from effective vaccinations and the development of safe tattooing methods. Prior to 2004, when South Carolina finally repealed its strict ban on tattooing, Mr. Knotts single-handedly quashed all attempts to challenge the law. Before the state legislature’s decision to repeal the law, a tattoo artist named Ronald White was convicted of violating the South Carolina statute after he tattooed an individual on television. He challenged the constitutionality of the law, claiming that a blanket prohibition on tattooing infringes on the right to free expression guaranteed by the First Amendment. In 2002, the Supreme Court of South Carolina followed the majority of courts that had addressed whether tattooing is protected and concluded the process of tattooing is merely conduct that is not sufficiently expressive to fall within the purview of the First Amendment. The dissent argued that the majority opinion was based on a line of cases “decided in an era when tattooing was regarded as something of an anti-social sentiment.” The Supreme Court of the United States denied writ of certiorari in the case, and, to date, has declined to answer the question of whether tattooing, as a form of artistic expression, is entitled to the same level of protection as other recognized art forms. Although Knotts’s stance represented an extreme version of the negative connotations Americans associated with tattoos, the basis of his aversion—disagreement with a perceived message conveyed by tattooing—exemplified a content-based intent for a restriction on expression. In other words, Knotts’s reason for regulating the tattooing industry was to suppress what he believed to be an “immoral” and “ungodly” message communicated by tattooed individuals. Such content-based regulations on expression are presumptively invalid because “[t]he First Amendment generally prevents government from proscribing speech, or even expressive conduct, because of disapproval of the ideas expressed.” This of course begs the question of whether tattooing is in fact expression. Decades after this ban was first enacted, much of modern American society has embraced tattooing as a valid and pervasive art form. Currently, one in five Americans has at least one tattoo—20% of the population. Over the past fifty years, however, the majority of lower courts have held that tattooing is unprotected conduct devoid of expressive value. But, in the groundbreaking 2010 case, Anderson v. City of Hermosa Beach, the United States Court of Appeals for the Ninth Circuit held that tattooing is an independent form of artistic expression entitled to the same level of full protection as any other form of pure expression. This Comment will propose that the Supreme Court should grant writ of certiorari in Anderson and find that tattooing is a partially-protected art form, as doing so will both protect artistic tattooing and allow for reasonable health regulations on the industry. Denying any level of protection to tattooing, and thus subjecting regulations on tattooing to mere rational basis review, would enable the states to pass laws foreclosing entire mediums of artistic expression—exemplified by the South Carolina statute. However, the Court should extend partial, rather than full, protection due to the health hazards involved in tattooing and other invasive forms of body art. Section II of this Comment will explore the broad scope of First Amendment protection developed in jurisprudence. First, Section II(A) will set forth the differing levels of protection accorded to pure expression and symbolic conduct. Section II(B) will then address the protection extended to artistic expression under the First Amendment. Section II(C) will discuss the body of case law confronting the issue of whether tattooing should receive protection as a form of art. Section III will propose a balanced solution to the policy concerns about extending full protection to tattooing and, conversely, denying protection to tattooing entirely. Specifically, Section III will propose that tattooing, and other potentially dangerous artistic practices, should fall within an exception to the general rule of according full protection to artistic expression. Artistic practices falling within this exception should receive partial protection under the First Amendment, allowing the states to regulate those practices for the well-being of the citizenry, while protecting the fundamental right of free expression. The Court should only extend partial, and not full, protection to tattooing and other potentially dangerous art forms because regulations on tattooing based on health concerns should not be subject to strict scrutiny. Subjecting legitimate regulations to this exceedingly burdensome standard of review would impede the states from exercising their historic police power to enact laws for the health and well-being of the citizenry. According partial protection to potentially hazardous artistic practices, including tattooing, would render regulations on those practices subject to intermediate scrutiny, a balanced standard of review that would protect both the freedom of artistic expression and the states’ interest in promoting the health of the citizenry.