Tattoo Rights Inked Into The Constitution: Why Tattoos Are Protected Speech Under the First Amendment

Author: Jordie Bacon, Associate Member, University of Cincinnati Law Review

Tattoos often portray significant moments in a person’s life, mark rites of passage, show religious devotion, or express feelings towards others. Getting a tattoo allows someone to make “permanent that which is fleeting.”[1] Tattoos, which at one point were seen as a seedy tradition of bikers and rebels, have now firmly become a part of mainstream, modern society.[2] But despite the widespread popularity and acceptance of tattoos in modern society many courts reject the artistic merits of the art of tattooing and deny it protection under the First Amendment.[3] While the Supreme Court interprets the language of the First Amendment to protect artistic expression, lower courts do not include tattooing as a form of artistic expression.[4] Modern day tattoo artists “emphasize creativity and expression” in their work, and as a result, tattooing is now a leading art form.[5] In consideration of this modern understanding of tattooing, some courts have determined that the act of tattooing is protected under the First Amendment.[6] This is a much-needed change in First Amendment jurisprudence; tattooing should be considered artistic expression and protected under the First Amendment.

Zoning to Prohibit Tattoo Parlors

The case of Euclid v. Ambler Realty Co. is the foremost case surrounding zoning in the United States.[7] In Euclid, the United States Supreme Court found that there was a substantial governmental interest in regulating land uses; however, a municipality must show that there is a rational basis behind its zoning laws—i.e., the zoning ordinance must be related to either public health, safety, morals, or general welfare.[8]

In regard to tattoo parlors, courts have traditionally upheld zoning laws either banning or severely restricting tattoo parlors, stating that it is within the government’s purview to protect the “health, safety and general welfare” of its citizens.[9] These courts found that municipalities can regulate tattooing because it involves “puncturing the skin with a needle creating openings in the human skin through which diseases can pass.”[10] Therefore, any regulation around tattooing directly deals with the health and welfare of municipalities’ citizens and meets the Euclid test for reasonable zoning ordinances.[11]

The courts upholding these restrictive zoning ordinances distinguish the act of tattooing from the tattoo itself; while the tattoo itself is protected speech, the process of tattooing is not.[12] In Yurkew v. Sinclair, for example, the court found a tattoo artist’s “interest in engaging in conduct involving tattooing does not rise to the level of displaying the actual image conveyed by the tattoo, as the tattoo itself is clearly more communicative, and would be regarded as such by the average observer, than the process of engrafting the tattoo on the recipient.”[13] Therefore, these courts have found that “the act of tattooing is one step removed from actual expressive conduct” because it is the client’s message that is being communicated, not the tattoo artist’s message.[14] Thus, the tattoo is considered pure speech and protected under the First Amendment, while the art of tattooing is not and subject to a city’s zoning bylaws.

Tattooing as Artistic Expression

In contrast to the majority, the United States Courts of Appeals for the Ninth and Eleventh Circuits do not distinguish the act of tattooing from the tattoo itself, holding instead that the process of tattooing is artistic expression protected under the First Amendment.[15] In Anderson v. City of Hermosa Beach, the Ninth Circuit held that tattooing was protected speech and that Hermosa Beach could not ban tattoo parlors from operating within the city.[16] Similarly, in Buehrle v. City of Key West, the Eleventh Circuit held that “the act of tattooing is sheltered by the First Amendment, in large part because we find tattooing to be virtually indistinguishable from other protected forms of artistic expression.”[17] The primary difference between a tattoo and a painting is that a tattoo is drawn on the skin, whereas a painting is drawn on a canvas. A form of speech should not lose its First Amendment protection simply because of the surface on which it appears.[18] Deeming tattooing as an artistic expression, these courts do not treat an artist whose chosen medium is the skin differently than an artist whose chosen medium is canvas or clay.

In her decision in Buehrle, Justice Pryor further emphasized the defect of separating tattooing from the tattoo itself by recognizing that the Supreme Court has frequently held that protected artistic expression encompasses different actions by a number of parties on the same piece of work. For example, in Simon & Schuster, Inc. v. Members of the N.Y. State Crime Victims Bd., the Court found that the First Amendment protected both the act of writing and the act of publishing.[19] Thus, as with writing, the act of tattooing is inextricably linked to the tattoo, and deserves First Amendment protection. Simon demonstrates that the Supreme Court does not distinguish between the process of creating art and the product of those artistic processes.[20]

Moreover, tattooing is now a leading art form in the United States; indeed, many tattoo artists are graduates of college art programs who are known for their custom designs.[21] Some tattoo artists even seek copyrights on their finished pieces.[22] Although tattoos may fall outside the traditional understanding of art due to their unique medium, to hold that the First Amendment protections do not apply to tattoo artists diminishes the value of their artwork and severely obstructs their ability to use artistic expression as a form of speech. While these protections should have always been in effect, courts cannot ignore the art form’s recent growth in acceptance.

Conclusion

Tattooing is now considered an art form (with the tattoo a product of this art form). As such, tattooing is a form of artistic expression that deserves protections under the First Amendment. Therefore, zoning ordinances that prohibit tattoo parlors are unconstitutional and should not be upheld.

[1] Susan Benson, Inscriptions of the Self: Reflections on Tattooing and Piercing in Contemporary Euro-American, in Written on the Body: The Tattoo in European and American History 234, 240 (Jane Caplan ed., Princeton Univ. Press 2000).

[2] See Michael Kimmelman, Tattoo Moves from Fringes to Fashion. But Is It Art?, N.Y. Times (Sept. 15, 1995), http://www.nytimes.com/1995/09/15/arts/art-review-tattoo-moves-from-fringes-to-fashion-but-is-it-art.html?pagewanted=all.

[3] See generally Hold Fast Tattoo, LLC v. City of N. Chi., 580 F. Supp. 2d 656 (N.D. Ill. 2008).; see generally State v. White, 348 S.C. 532 (S.C. 2002).; see generally Kennedy v. Hughes, 596 F. Supp. 1487 (D. Del. 1984).

[4] Ryan J. Walsh, Comment, Painting on a Canvas of Skin: Tattooing and the First Amendment, 78 U. Chi. L. Rev. 1063 (2011).

[5] Id at 1090-91.

[6] Supra note 7.

[7] See generally Euclid v. Ambler Realty Co., 272 U.S. 365 (1926).

[8] Id at 20.

[9] People v. O’Sullivan, 409 N.Y.S.2d 332, 333 (N.Y. App. Term 1978).; see generally Hold Fast Tattoo, 580 F. Supp. 2d 656.; see generally Blue Horseshoe Tattoo, V. Ltd. v. City of Norfolk, 72 Va. Cir. 388 (Va. Cir. Ct. 2007).

[10] Carly Strocker, Comment, These Tats Are Made for Talking: Why Tattoos and Tattooing Are Protected Speech Under the First Amendment, 31 Loy. L.A. Ent. L. Rev. 175, 179 (2011).

[11] See State ex rel. Crabtree v. Franklin Cnty. Bd. Of Health, 673 N.E.2d 1281 (Ohio 1997) (holding that by prohibiting legal tattooing in a community, it encourages black market or underground tattoo parlors, which pose larger risks than allowing lawfully regulated tattoo parlor).

[12] Yurkew v. Sinclair, 495 F. Supp. 1248 (D. Minn. 1980).

[13] Id at 1254.

[14] Hold Fast Tattoo, 580 F. Supp. 2d at 660.

[15] Supra note 5.

[16] Anderson, 621 F.3d 1051, 1055 (9th Cir. 2010).

[17] Buehrle, 2015 U.S. App. LEXIS 22782 at *4 (11th Cir. 2015).

[18] Supra note 17 at 1062.

[19] 502 U.S. 105, 116-118 (1991).

[20] Supra note 15 at 1061.

[21] Supra note 9 at 187.

[22] Id.

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