The Indelible Right of Free Expression
The 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 craft.
White 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.
In 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.
Undaunted, 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).
The 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.
Tattooing as Art
No 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.
These 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.
Western 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.
By 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.
The 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.
Constitutional Protection for the Art of Tattooing
The 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."
But 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 one-and-the-same.
Given 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.
It 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.
As 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.
Prohibiting 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.
For 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 that.
[August 30, 2002]