DOES THE FIRST AMENDMENT PROTECT THE RIGHT TO GIVE TATTOOS?

This week, on October 7, the U.S. Supreme Court declined to review a South Carolina Supreme Court decision that held that the First Amendment does not protect the right to give tattoos. As a result, the South Carolina law prohibiting the practice still stands.

The First Amendment protects not only speech but expressive conduct that qualifies as "symbolic speech." For instance, as the Court has held, it protects burning the American flag.

However, there are limits to the types of conduct the Amendment covers. Is tattooing beyond those limits?

The South Carolina case began when, after a television station aired a clip of him providing a tattoo, Ronald White was arrested.

At trial, White admitted he had violated the anti-tattooing law, but argued that the law was unconstitutional. The trial court, however, rejected his constitutional argument and, left with little work given his admission of guilt, convicted him.

On appeal, the South Carolina Supreme Court upheld the conviction. It reasoned that tattooing is not speech, and thus is not protected by the First Amendment.

Is Tattooing Expressive Conduct That Qualifies as "Symbolic Speech"?

Was the South Carolina court right? What exactly counts as expressive conduct that amounts to "symbolic speech"?

Of course, all conduct may be expressive to some degree. However, the U.S. Supreme Court has expressly rejected "the view that an apparently limitless variety of conduct can be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea." A decision to the contrary would bring virtually all behavior within the scope of the First Amendment.

Instead, the Court has emphasized that, to count as symbolic speech protected by the First Amendment, the "expression must be sufficiently imbued with elements of communication."

The South Carolina Supreme Court, in holding that tattooing did not qualify, emphasized the nature of the tattooing process, which it described as a purely mechanical process of injecting dye - not an expressive process.

The court also stressed the medium: the human body. Because tattooing involves potentially unhealthy invasion of human tissue, the court concluded that it may be regulated in ways that other art forms are not.

Both of the court's justifications for its holding that tattooing is not speech can be questioned. Certainly, tattoo artists pride themselves on their ability to produce evocative tattoos; that is the very reason they are hired.

Indeed, outside of medical tattoos, which the statute specifically exempts, it is hard to conceive of a tattoo that is not expressive, and the tattoo artist, to the extent that he is creating the tattoo, plays a particularly important role in that expression. This process involves simply injecting dye only to the extent that painting involves simply running a brush across a canvas.

Admittedly, the individual who gets the tattoo for expressive purposes pays the tattoo artist to convey that expression on her body, which limits the artist's ability to make unfettered expressive choices. Also, many tattoos are pre-designed and simply copied by the artist. Perhaps, then, one might argue that while the person getting the tattoo is expressing herself, the artist is not.

This distinction, however, is not sound. Consider, by analogy, the case of an artist commissioned to produce a painting, the subject of which was chosen by a patron. Certainly the painter's conduct, like that of the tattoo artist, is expressive, notwithstanding the patron's interest in the artwork.

What about the court's point that tattooing employs the human body? It seems strained to distinguish between art forms based on their preferred medium. And in any event, the court seemed to assume that if tattooing were protected by the First Amendment, it could not be regulated, so that, for instance, non-sterile needles could be used.

But of course, that suggestion is flawed. Even First Amendment protected conduct can be regulated. Flag burning is protected, for instance, but states could reasonably ask that it not be done near a gas station.

Moreover, even were the First Amendment held to apply, a regulation of tattooing that did not depend on the image conveyed in the tattoo would be "content neutral," and thus likely to be upheld by the courts.

A "content-based" restriction - such as prohibiting tattoos depicting the President in an unflattering light - would create an obvious First Amendment problem. But a content-neutral regulation - banning, for instance, the use of certain tattooing inks likely to create health risks - would not.

Could a Tattooing Prohibition Be Upheld Even if the First Amendment Applies?

To decide that question, U.S. Supreme Court precedent requires that a court ask the following questions: Does the prohibition further an important governmental interest? Is that interest unrelated to the suppression of free expression? Is the incidental restriction on First Amendment freedoms no greater than is essential to the furtherance of that interest? (In legalese, the third question asks if the statute is "narrowly tailored" in the least restrictive form that still serves the state's interest.)

If the answer to all three of these questions is yes, then the prohibition is constitutional even if it regulates expressive conduct protected by the First Amendment.

Applying the Court's Three Part Test to the South Carolina Law

The first and second, questions, it seems, must be answered yes. South Carolina has a clear interest in promoting public health, and the statute furthers it. (Tattooing has been associated, for instance, with the spread of hepatitis.)

Moreover, the interest seems unrelated to the suppression of expression. Tattooing may once have been banned as "antisocial." But no evidence was presented that South Carolina's modern law reflects this sentiment.

The answer to the final question, however, is a strong no. Much narrower alternatives would suffice. For instance, South Carolina could allow tattooing but regulate it extensively, requiring licensing, single-use needles, sterile gloves, and so forth.

Why Didn't the U.S. Supreme Court Hear the Case?

Based on this analysis, the statute should be unconstitutional - contrary to the South Carolina Supreme Court's pronouncement. So why didn't the U.S. Supreme Court hear the case?

Even if the Court actually believes the statute to be unconstitutional, there could be many reasons for the decision not to hear the case. The Court does not review every decision it believes to be in error. Rather - limited to hearing only a small fraction of the cases it is asked to review - it looks to other considerations.

So for the present, at least, South Carolinians must travel elsewhere for tattoos. And tattoo artists in South Carolina are out of appeals, out of work, and out of luck.