George Mason Law Review Civil Rights Law Journal

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Appellant argues the trial court incorrectly upheld section 16-17-700 of the South Carolina Code, insisting the act of tattooing constitutes speech protected by the First Amendment. Appellant argues tattoos are a form of art or expression protected by the First Amendment. Assuming tattoos are protected expression, Appellant reasons those who create them should be afforded the same protection that he claims the creators of other protected expression enjoy (e.g., writers, painters, and sculptors). Appellant contends the process of tattooing cannot be separated from the display of the tattoo itself and both are protected under the First Amendment. We disagree.

The State argues that the trial court correctly upheld the statute, finding tattooing is not speech, and a rational relationship exists between the statute and public health. For support, the State cites several out of state, appellate and trial level opinions in which similar statutes have been upheld. State v. Brady, 492 N.E.2d 34 (Ind. App. 1986); [***5]  People v. O'Sullivan, 96 Misc. 2d 52, 409 N.Y.S.2d 332 (N.Y. App. Div. 1978); Lemon v. Banks, 495 F. Supp. 1248 (D. Minn. 1980). In each of these opinions, the court found tattooing did not constitute speech and then proceeded to analyze the statute applying a rational basis standard. Id. Each court determined (largely based on their common knowledge) that there are inherent risks to tattooing and gave the state's legislature wide latitude to determine how to best protect the general welfare of the state's inhabitants. Id. We agree with this position.

HN1 Our precedent establishes a general presumption of validity for legislative acts when subjected to constitutional attack, which can be overcome only by a clear showing that the act violates some provision of the Constitution. Main v. Thomason, 342 S.C. 79, 535 S.E.2d 918 (2000); State v. Brown, 317 S.C. 55, 451 S.E.2d 888 (1994). This presumption places the initial burden on the party challenging the constitutionality  [*537]  of the legislation to show it violates a provision of the Constitution. If the challenging party is able to show the act is invalid, leaving [***6]  "no room for reasonable doubt that it violates some provision of the Constitution," the burden shifts to the state. Thomason, 342 S.C. at 86, 535 S.E.2d at 921 (citing Westvaco Corp. v. South Carolina Dep't of Revenue, 321 S.C. 59, 467 S.E.2d 739 (1995)). If the challenging party is unable to do so, however,  [**423]  it has not met its burden, and the challenge fails under this analysis.

Whether or not tattooing qualifies as speech, symbolic speech, or otherwise protected expression under the First Amendment is an issue of first impression in South Carolina. We look to the United States Supreme Court for guidance in analyzing this issue. According to the United States Supreme Court, HN2 the First Amendment protects speech, including conduct, if sufficiently communicative in character. Parcell v. Washington, 418 U.S. 405, 94 S. Ct. 2727, 41 L. Ed. 2d 842 (1974). The threshold question then is whether the conduct in issue is "sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments." Id. at 409, 94 S. Ct. at 2730, 41 L. Ed. 2d at 846. Admittedly, this test requires line drawing. [***7]  The Supreme Court has acknowledged this implicitly, but held it could not "accept 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." United States v. Geiss, 391 U.S. 367, 376, 88 S. Ct. 1673, 1678, 20 L. Ed. 2d 672, 679 (1968) (upholding defendant's conviction for burning his draft card on the courthouse steps against the challenge that the conduct amounted to expression protected by the First Amendment).

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