admitted to violating the state ban on tattooing, but argued the
law violated his constitutional right of free expression. Below
are some examples of his work:
The Indelible Right of Free Expression
list of artists whose work has been banned is a long one. Ronald
P. White has joined that list. It was 1999 when this South Carolina
artist last created a work of art in his home state, and that creation
was videotaped and broadcast to a local television audience. While
most artists would bask in the glow of such exposure, Whites
led to his arrest and conviction for merely having performed his
is a tattoo artist and, according to an archaic law in South Carolina,
his type of art is unlawful to perform unless medically necessary,
and even then it is permissible only if practiced by a licensed
physician or surgeon.
a series of court proceedings, White admitted to violating the state
ban on tattooing, but argued the law violated his constitutional
right of free expression. Both the trial court and South Carolina
Supreme Court disagreed, finding the states legitimate concern
about any health risks associated with tattooing outweighed whatever
expressive concerns White and other tattoo artists may have.
White has appealed his conviction to the U.S. Supreme Court. "The
state of South Carolina cannot silence our voices, nor can it stop
an art form so rooted in our nation . . . and the rest of the world,"
argues White on his Website (www.freedomtattoo.com).
Center for Individual Freedom has filed a brief in support of Whites
petition to the U.S. Supreme Court. For the Center, an individuals
right of artistic expression is protected without regard to the
medium employed or message conveyed by the artist. It matters little
to the First Amendment that some people choose art created and sold
in tattoo parlors rather than at Sothebys or Christies.
Furthermore, while a state has the right to protect the health and
safety of its citizens, banning an entire art form, when less restrictive
means can adequately safeguard the public, indiscriminately tramples
the freedom of artistic expression embodied in the First Amendment.
one knows exactly when or where the first tattoo artist created
his work, but we do know that some of the earliest mummies found
in Asia and Europe have tattoos. Tattoos dating back thousands of
years reflect a tendency for humans to mark their bodies to convey
their own social, cultural and individual identities.
tattoos also reflect one of the earliest known forms of communication.
There is no record of speech among primitive humans, but ample evidence
supports the fact that they exchanged and recorded information through
art. Archeologists attribute pictures as earliest methods of communication
and recordkeeping, and tattoos stand together with cave paintings,
pictographs and hieroglyphics as good examples. Ancient tattoos
convey much the same messages as tattoos do today. A tattoo could
identify the wearer with a certain group while distinguishing him
from others. Moreover, the tattoo could symbolize or reflect status
and place within the society. Quite simply, tattooing in the past,
just as in the present, marked inclusion and exclusion in a way
that was easy to see and comprehend.
culture and Christianity disdained tattooing and prohibited it in
many parts of the world, including the New World. As a result, tattooing
was suppressed in early America, and the art did not become popular
in the United States until the early nineteenth century. By the
1960s, unsanitary conditions and social stigma threatened tattooing
in the United States once again. An outbreak of hepatitis in New
York was thought to be caused by an unsanitary tattoo artist on
Coney Island, and newspapers began to spread stories about diseases
that allegedly ran rampant in tattoo parlors. Many states banned
tattooing altogether as public concerns about health and conformity
grew. Amid this public concern, South Carolina enacted its law prohibiting
and criminalizing the art of tattooing in 1966.
the late twentieth century, however, tattooing made another comeback.
Medical advances reformed the practice, and a more cosmopolitan
society allowed the art to experience a rebirth. Proper sterilization
techniques ensured the safety of tattooing, and social change turned
wearing a tattoo into a hip fashion statement. Today, tattooing
is the sixth-fastest growing retail business in the United States,
and the single fastest growing demographic group seeking a tattoo
is middle-class suburban women. In short, the art of tattooing no
longer only appeals to rebellious "social deviants." Rather,
you are just as likely to find a Fortune 500 executive wearing a
tattoo as a punk rocker.
increased safety and popularity of tattooing also led to a sea change
in state regulation of the art. Most states rescinded their bans
because not only does the art of tattooing no longer pose a significant
health risk given proper precautions, but tattoos have become an
acceptable social statement. Today, only two states, South Carolina
and Oklahoma, retain prohibitions on engaging in the art form. Moreover,
these bans are now constitutionally suspect. At least one other
court has ruled that completely banning an criminalizing the art
of tattooing violates and individuals constitutional right
of free expression under the First Amendment.
Protection for the Art of Tattooing
First Amendment states that "Congress shall make no law . .
. abridging the freedom of speech, or of the press." The U.S.
Supreme Court has been unequivocal that the First Amendment "looks
beyond written and spoken words as mediums of expression" that
deserve constitutional protection. Art is constitutionally protected
without regard to the medium employed by the artist or whether the
art conveys "a narrow, succinctly articulable message."
Thus, it is no surprise that the Court has protected a variety of
media under the umbrella of the First Amendment, including "pictures,
films, paintings, drawings, and engravings," as well as live
and recorded entertainment, such as motion pictures, radio and television
programs, and musical and dramatic works. In the words of the Court,
the freedom of expression found in the First Amendment "unquestionably
shield[s] [the] painting of Jackson Pollock, [the] music of Arnold
Schoenberg, [and the] Jabberwocky verse of Lewis Carroll."
the Court has gone even further. The Court also protects expression
that many, if not most of us, find undeniably offensive. For instance,
on two different occasions the Court found that burning an American
flag in protest constituted symbolic speech worthy of constitutional
protection even when thrust in the faces of those who would cringe
simply when a flag was accidentally soiled. In another case, the
Court gave a man constitutional permission to wear a jacket emblazoned
with the words "Fuck the Draft" in a public courthouse.
In short, the First Amendment takes the position that "one
mans vulgarity is anothers lyric" and each is protected
these established principles, there can be no doubt that the First
Amendment extends to protect the art of tattooing. After all, if
painting and verse, and even an offensive slogan emblazoned on a
jacket, are "unquestionably shielded" by the First Amendment,
then, so too, must tattoo art. The sole difference between tattoo
art and the "unquestionably shielded" painting, verse
and slogan is the medium employed by the artist. Tattoo artists
simply choose to execute their art on the skin of individuals who
commission the work, rather than on canvas, paper or even a jacket.
And while such a distinction may raise different concerns in ensuring
safety, it does not make the entire art form invisible to the constitutional
protections of the First Amendment.
goes without saying that the constitutional right of free expression
embodied in the First Amendment is not absolute. Nevertheless, a
state may not ban an entire art form simply by asserting an interest
in public health and safety. Instead, when a state chooses to act
to protect the public by restricting expression without regard to
its content, the incidental encroachment on expression must be no
greater than necessary to serve the states interest and must
leave open ample alternative channels. Prohibiting an entire art
form meets neither of these standards.
a result of modern sterilization techniques, a ban on the art of
tattooing far exceeds the means necessary to ensure the public health
and safety because such a ban burdens far more expression than necessary
to serve the states legitimate interest. For this reason alone,
banning the entire art form is unconstitutional.
the art of tattooing is also unconstitutional because it closes
all suitable alternative channels of expression. There is no substitute
for a permanent tattoo. Such an indelible mark cannot be replicated
with henna or magic marker. Tattoo art is so personal and powerful
because it is permanent and inextricably linked with its wearer.
these reasons, not only does the art of tattooing merit constitutional
protection, but that protection makes South Carolinas ban
impermissible. The Constitution may be reconciled with reasonable
regulations designed to serve the public, but South Carolinas
prohibition is more aptly suited to eradicate an entire art form.
The restriction is not surprising considering the history of tattooing
in the United States, but it is a restriction of yesterday, not
today. Tattooing is art, it can be safe, and it should be constitutionally
protected. White is hoping the U.S. Supreme Court will say just
August 30, 2002]
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