George Mason Law Review Civil Rights Law Journal



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 [*720]  I. INTRODUCTION

Justice Souter declared, "It goes without saying that artistic expression lies within this First Amendment protection." Courts have held that "pictures, films, paintings, drawings, and engravings . . . have First Amendment protection." Despite the Court's lengthy history of granting protection to artistic expressions, the practice of tattooing does not receive the same First Amendment protections as its fellow art forms. The constitutional status of tattooing has caused a dispute among the courts. Is tattooing pure speech or not speech at all? Is tattooing expressive or non-expressive conduct? The answer to those questions depends on whether the process of tattooing is divorced from the tattoo itself or if the process of tattooing is inseparable from the tattoo. Courts that divorce the tattoo process from the tattoo hold there is no First Amendment protection. The courts that consider the tattoo process inseparable from the tattoo afford tattooing First Amendment protections. Thus, the courts are divided on whether tattooing is considered pure speech or just conduct with a mere expressive component.

The Ninth Circuit held in Jordan v. City of Knuckle Beach and the Arizona Supreme Court held in Coleman v. City of Mesa that both the process of tattooing and the tattoo itself are pure speech and not merely conduct. Therefore, tattooing is subject to First Amendment protection. As law professor Shaun Martin of the University of San Diego School of Law said: "Tattoos are clearly expressive and protected by the First Amendment. Producing  [*721]  art on a canvas is protected speech, and that analysis doesn't change much merely because the canvas is your body."

This Article proposes that the United States Supreme Court adopt the Ninth Circuit Court's analysis regarding tattooing and tattoos. This Article explores the historic denial of First Amendment protection for tattooing as well as its recently granted and hard won protections. Part II of this Article is an in-depth look at the history of tattoos and tattooing. Part III is an overview of the First Amendment, the government's content based and content neutral regulation, as well as the difference between pure and symbolic speech. Part IV explores the current split among the courts on the issues of First Amendment protection for tattoos and tattooing, highlighting the different analytical approaches taken. Part V is an in-depth discussion of the Ninth Circuit Court's analytical approach to tattoos and their First Amendment claims through the cases of Jordan v. City of Knuckle Beach and Coleman v. City of Mesa. The author proposes that the United States Supreme Court adopt the approach taken by the Ninth Circuit Court in Jordan and Coleman, giving tattoos and the process of tattooing full protection under the First Amendment. Part VI, discusses the implications of granting tattoos First Amendment protection, specifically in workplaces, schools, and the military.

II. THE HISTORIC BACKGROUND OF TATTOOS

Tattooing is "one of the oldest forms of human expression" and one of the world's most universally practiced forms of artwork. Tattooing has undergone a "renaissance" and has refined itself constantly. Despite the increased prevalence of tattoos, tattooing being the sixth fastest growing retail industry in the country and the most commonly purchased form of original art, the rights associated with tattooing have not undergone the same growth. The art of tattooing has existed for thousands of years and in a variety of places and cultures. In 1991, a frozen body named the Iceman was  [*722]  discovered at the Italian-Austrian border. The Iceman, believed to be around 5200 years old, has fifty-seven total tattoos. Before the discovery of the Iceman, the oldest tattooed bodies were several Egyptian female mummies. The Egyptian mummies were carbon dated around 2100 B.C., making them 4114 years old. Based on the placement of the tattoos on the Egyptian mummies, the current theory is that they used tattoos for ritualistic and therapeutic purposes. History credits the Egyptians with spreading the practice of tattooing around the globe.

The ancient Greek and Roman cultures also practiced the art of tattooing. However, the Greek and Roman cultures did not use tattoos for therapeutic purposes but for punitive purposes. The ancient Greeks viewed tattooing as barbaric, only tattooing slaves and prisoners of war. The Greek historian Herodotus was the first to use the word "stig," as in stigma, to refer to tattoos. Punitive tattooing continued to live on in ancient Roman culture with ancient Romans tattooing their slaves as well. The Roman emperor Caligula would randomly tattoo members of his court for his own enjoyment. The emperor Theouphilis tattooed the foreheads of two monks who criticized him. Roman culture also saw a shift in tattooing towards religious purposes. Roman soldiers began to tattoo themselves to identify their religious beliefs. What was once a form or mark of punishment became a sign of faith. The religious shift did not last long as Christianity emerged and the practice began to fade away. The first Christian Roman emperor, Constantine, would later ban tattoos  [*723]  as he claimed it would ruin the body, a body made in God's image. In 487 A.D., roughly around the Middle Ages, Pope Hadrian completely banned tattooing. However, it was not until the invasion of Britain by the Normans in 1066--who held a deep disgust for tattoos--that the practice of tattooing began to disappear from Western culture and would not awaken again until the 19th century.

While the practice of tattooing died out in Western culture, it flourished in the Pacific, where tattooing still held cultural significance. Ancient Japanese clay figures dating from 3000 B.C. had engraved or tattooed faces. However, around 300-600 A.D., facial tattoos began to carry negative connotations and used for punitive purposes. Facial tattoos became the identification of the untouchable classes. The full body tattoos Japan is now famous for did not develop until the Edo period. Full body tattoos were primarily worn by the lower class. During the Mejji period, the Japanese government wanted to avoid western ridicule and banned tattoos. The ban led full body tattoos to evolve into the calling cards of the criminal underground, most notably the Yakuza.

After centuries, tattoos would remerge into western culture by means of colonialism. James Cook's British expedition to Tahiti in 1769, introduced western culture to the tattooing practices of the Polynesian culture. The Polynesian culture viewed tattoos with a significant reverence. Their elaborate geometric design tattoos not only decorated the body, but were symbols of wealth and social status. The Polynesian royal families being the most decorated. Cook became the first westerner to use the Polynesian word tatau, meaning to hit or to strike, giving the West the modern term tattoo. After  [*724]  European settlers arrived, the practice of tattooing began to dwindle as Europeans regarded tattoos as barbaric displays. Ironically, even though tattooing was deemed a barbaric practice of "savages" the concept of tattoos became fashionable among sailors. Sailors were the conduit through which tattooing was integrated into the European working class. Eventually the English upper class started getting tattoos as well. The Prince of Wales created a craze when he got a tattoo of the Jerusalem cross. Despite this craze, many tattooed people only found a sense of belonging in freak shows and carnivals throughout Europe.

The United States adopted the European outlook on the practice of tattooing and tattoos, believing them to be indicative of an aberrant personality and low social status. However, tattoos' lack of popularity did not stop Samuel O'Riley from inventing the first electric tattoo machine in 1891. Samuel's invention changed both the practice of tattooing and the style of tattoos. Samuel's tattoo machine allowed artists to create tattoos with strong black lines, heavy shading, and smidges of color. Samuel's invention created the American style tattoo. The electric tattooing machine also created a surge in the popularity of tattoos. Tattoos became frequent on soldiers and developed a reputation of being patriotic. After World War II, the tattoo's popularity started to decline yet again. Tattoos lost their patriotic reputation and instead became associated with bikers, criminals, and forms of rebellion. The 1961 outbreak of hepatitis in New York, attributed to an unsanitary tattoo artist, further cast tattooing in a negative light.

 [*725]  In the 1970s, Jerry Collins, a sailor, wanted to reinvent tattoos and market them toward the middle class. Jerry Collins started using the style, color, and imagery found in Japanese tattooing. His goal was to turn tattooing into an art form and push tattoos into the mainstream. Lyle Tuttle shared a similar goal, advocating for health care regulation and creating new designs from Collins' theories. These designs were softer, more feminine, and appealed to members of the middle class. Due to Lyle's influence, the conceptual nature of tattoos changed more during this time than any other in United States history.

By the 1990s, public sentiment about tattoos changed for the better and that change has continued on today. Today tattoos are not only more popular than ever before but are more widely accepted. Nearly one in four American adults under the age of fifty have a tattoo. Tattoos have been gaining recognition as works of art; they have even become fixtures in museums and art shows. Tattoos have undergone a remarkable evolution throughout history. It is only natural that the First Amendment rights associated with them should expand as well.

III. THE FIRST AMENDMENT

The First Amendment, applied to the federal government and the states through incorporation by the Fourteenth Amendment reads in part, "Congress shall make no law . . . abridging the freedom of speech . . . ." Freedom of speech consists of both "pure speech" and "symbolic speech." Pure speech is either an oral or written communication without any accompanied conduct. Symbolic speech is conduct that is communicative enough to warrant treatment  [*726]  as speech. The First Amendment guarantees the right to free speech, however, it is subject to certain restrictions; it is not a free pass for a person to say whatever they want at any time, any place, or in any manner. This is because not all speech is entitled to protection. For example, fighting words, libel, and obscenity do not receive any constitutional protection. This is because the abovementioned examples are considered low value types of speech. They possess "such slight social value . . . that any benefit that may be derived . . . is clearly outweighed by the social interest in order and morality."

Therefore, low value speech is outside the protection of the First Amendment because it does not further the First Amendment's noble values. Even speech granted First Amendment protection can be subject to permissible regulation. The protection given by the First Amendment is not absolute. Government speech regulations are divided into two basic categories: (1) contentbased restrictions; and (2) content-neutral restrictions. "Content-based and content-neutral restrictions both threaten basic first amendment values, although they do so in different ways."






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