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2012 B.Y.U.L. Rev. 1071

Length: 17696 words

Author: Hannah H. Porter*

* JD, April 2012, J. Reuben Clark Law School, Brigham Young University.


I. Introduction

Tattooing has become a commonplace practice in the United States over the last few decades. Celebrities increasingly sport visible tattoos, and so does the mainstream American public. Moreover, tattooing is gaining recognition across the country as a form of art and is increasingly the subject of museum and art shows. If the tattoo is a piece of artwork, then the process of creating such art could be considered protected First Amendment speech. Indeed, the past few years have seen scholars arguing for constitutional protection of the tattooing process. But unlike other types of art, tattooing can have serious health consequences for the tattoo recipient, including allergic reactions to the ink and serious skin infections.

To address these health risks, states and cities have implemented strict regulations on tattooing. As of 2003, thirty-nine states had tattooing regulations. Other states have no statewide regulations but choose to allow municipal or county ordinances to regulate. These regulations range from mandates concerning the sterilization  [*1072]  procedures to be used by the tattooists to outright bans on tattooing. The harshness of some of these regulations has brought tattooists to the courts to protect their businesses, claiming that tattooing is part of their right to free speech under the First Amendment. Their success in the courts has varied widely.

In reviewing these First Amendment claims, some courts dismiss tattooing altogether, holding that the process of tattooing is not even symbolic conduct, much less pure First Amendment speech. In Lemon v. Banks, for example, a federal district court recognized that the speech arising from the tattooing process differed significantly from the speech embodied in the tattoo itself. The tattoo was "clearly more communicative" than the process of tattooing and, furthermore, the average observer would not view the tattooing process itself as communicative. Consequently, the court found that the tattooing process was "not sufficiently communicative in nature" to fall within the realm of symbolic conduct protected by the First Amendment.

Other courts have treated tattoos as a type of art form - entitled to full First Amendment protection - and have given tattooing the same protected status of pure speech. For example, in Jordan v. City of Knuckle Beach, the Ninth Circuit held that because all tattoos are forms of pure speech, the process of tattooing necessarily leads to pure speech. Because the tattooing process leads to pure speech, the process should not be separately analyzed as conduct apart from the end result. The court stated that the act of painting  [*1073]  is never separated from the resulting painting and so neither should the process of tattooing be separated from the tattoo. Accordingly, the court held that the process of tattooing was pure speech, similar to a commissioned art.

Thus, whether a court finds tattooing to be protected under the First Amendment seems to rise or fall on one issue: whether the process of tattooing should be analyzed separately from the message conveyed by the tattoo or if the tattooing process and the tattoo are inseparable for First Amendment purposes. Courts that refuse to separate the tattooing process from the tattoo find both to be protected speech. On the other hand, courts that examine the tattooing process independently of the tattoo find that tattooing should not receive any First Amendment protection. Thus, separation plays an important part in the debate because it ultimately can determine what, if any, First Amendment guarantees tattooing receives.

II. Background

A. First Amendment Protections

The First Amendment provides that "Congress shall make no law … abridging the freedom of speech." What qualifies as speech is perhaps best defined, first, by what it is not. Incitement to violence, fighting words, libel, obscenity, and child pornography may involve speech, but they do not receive any constitutional protection because they are considered low-value types of speech that do not further First Amendment values. Outside of these categories of unprotected speech, any use of words, oral or written, is protected under the First Amendment.

While words themselves are certainly protected by the First Amendment, "the Constitution looks beyond written or spoken words as mediums of expression." Artistic mediums that use pictures, music, or movement rather than words to express an idea  [*1075]  are also protected by the First Amendment. Justice Souter has declared: "It goes without saying that artistic expression lies within this First Amendment protection." Elsewhere, the Court has called paintings and music "unquestionably shielded." Indeed, music, live performances, and paintings have received protection in several Supreme Court cases. But the Court has failed to offer a detailed explanation for its protection of art or how art fits within the First Amendment. The exact level of art's protection is also uncertain as the Court has left open the exact test for the protection of artwork. But, while the Court has not offered any definitive opinion about what types of art are protected, clues can be found within the Court's previous decisions.

In affording First Amendment guarantees to art, the Court seems to emphasize the communicative nature of art. For example, the Court has reasoned that films are included in the First Amendment because they "are a significant medium for the communication of ideas" that can espouse a particular agenda or subtly mold a viewer's thoughts. In defending art as speech, Justice Souter has stated that the constitutional protection of art does not rest on any political significance but rather on the piece's "expressive  [*1076]  character." But although art may generally receive protection for its communicative possibilities, no "narrow, succinctly articulable message" is required of an artwork for it to be protected by the First Amendment. Therefore, the First Amendment covers even abstract artwork that arguably lacks a distinct message.

Lower courts have also emphasized the artist's intent to communicate when analyzing the protection of art under the First Amendment. For example, in White v. City of Sparks, the Ninth Circuit protected a painting "so long as it is an artist's self-expression … because it expresses the artist's perspective." Also in White, the Ninth Circuit reserved the question of whether "paintings that are copies of another artist's work or paintings done in an art factory setting where the works are mass-produced by the artist" would receive any First Amendment protection. The court's reservation of this question indicates that it was comfortable in affording constitutional protection to artwork only when there were no questions concerning authorship or the author's communicative input into each artwork.

The Supreme Court has also recognized that beyond words and artistic mediums, conduct may be sufficiently communicative to qualify as speech. The Court has noted that "symbolism is a primitive but effective way of communicating ideas." Given this communicative value, the Court has protected some conduct as symbolic speech. But the Court has refused to extend First Amendment protection to the "apparently limitless variety of conduct" that could be claimed as speech "whenever the person engaging in the conduct intends thereby to express an idea." Thus,  [*1077]  in Parcell v. Washington, the Court protected the government's interest in regulating a course of conduct by limiting protection to conduct where "an intent to convey a particularized message was present, and in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it." Instances of protected symbolic conduct include wearing black armbands to protest the Vietnam War, taping a peace sign on an inverted American flag, burning an American flag, and marching in an organized parade.

Even if speech falls within the protection of the First Amendment, however, regulation may be permissible. The protection of the First Amendment is not absolute. Some government regulation may be constitutional even though it regulates protected speech. In determining what types of regulation are permissible, the Supreme Court has typically divided regulations of protected speech into two categories: content-based regulations and content-neutral regulations. Content-based regulations aim at the content of a message and thereby attempt to shut down certain messages or viewpoints. Content-neutral regulations, on the other hand, "limit communication without regard to the message conveyed." These regulations are often referred to as time, place, and manner restrictions because they aim  [*1078]  at regulating the circumstances surrounding the speech and not the actual message.

Because content-based and content-neutral regulations present differing First Amendment concerns, the Court uses different tests to determine the constitutionality of each. "Content-based restrictions are more likely than content-neutral restrictions to distort public debate, to be tainted by improper motivation, and to be defended with constitutionally disfavored justifications." For these reasons, content-based regulations are subject to strict scrutiny. That is, the government interest at hand must be compelling, and the regulation must be narrowly tailored to meet this government interest. Content-neutral regulations can similarly undermine First Amendment principles by limiting the "availability of particular means of communication." But because content-neutral regulations do not distort debate or favor a certain viewpoint, they are subject to a lower level of scrutiny. Thus, a content-neutral regulation must be "narrowly tailored to serve a significant governmental interest" and must "leave open ample alternative channels for communication of the information."

Regulation of symbolic conduct, however, is not subject to these same standards. Symbolic conduct is not "pure speech"; it necessarily combines both speech and nonspeech elements. As a threshold matter, a regulation of symbolic conduct must not aim directly at the regulated conduct's expressive elements but rather may impose only  [*1079]  an incidental limitation on the First Amendment.Otherwise, the regulation is content-based discrimination subject to strict scrutiny. An incidental regulation of symbolic conduct is "sufficiently justified … if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest." In this way, the regulation is similar to a time, place, or manner restriction in that it is not seeking to limit the message but rather the way that the message is conveyed.

B. Treatment of Tattooing by Courts

While several cases have examined whether a tattoo by itself is speech under the First Amendment, less than ten cases have actually analyzed the speech qualities of the tattooing process to determine whether it is entitled to First Amendment protection. These cases have come down on both sides of the issue. A majority of courts have held that the tattooing process, analyzed apart from the tattoo itself, was not protected speech or symbolic conduct. In  [*1080]  contrast, by refusing to separate the process of tattooing from the tattoo, other courts have held that the tattooing process is protected as First Amendment speech.

1. Cases that separate the tattooing process from the tattoo

Although all the cases that separate the tattooing process from the tattoo conclude that tattooing is not symbolic conduct, their mode of analysis falls into two general camps. Some cases simply declare, with little analysis, that the tattooing process is not symbolic conduct. The other cases find that tattooing is not symbolic conduct because, unlike the tattoo itself, tattooing is not communicative. But both groups of cases fail to provide a detailed justification for the separation of the tattoo and the process of tattooing.

Of the cases that separate the tattoo from the tattooing process, some hold that tattooing is not speech or symbolic conduct but fail to provide support for the holding. The court in People v. O'Sullivan simply declared that "whether tattooing be an art form … or a "barbaric survival, often associated with a morbid or abnormal personality,'… we do not deem it speech or even symbolic speech" and provided no additional analysis of the speech qualities of tattooing. To the court, even if the tattooing process were speech or symbolic conduct, the regulation would still be constitutional due to the health risks of tattooing. Likewise, the court in State ex rel Medical Licensing Board v. Brady held that the process of tattooing was not protected speech, even after admitting that the First Amendment protects a "wide range of expression." To support this holding, the court simply cited previous cases holding that tattooing  [*1081]  was not speech. Beyond finding these cases "persuasive," the court did not discuss the issue further. The court in State v. Hornberger continued this trend by proceeding straight to the Parcell test without mentioning the speech qualities of the tattoo. In applying the Parcell test, the court found that the tattooing process was "not sufficiently communicative to warrant protections" and yet provided no analysis for this assertion.

On the other hand, courts that do provide meaningful analysis on this issue mostly find that tattooing is not symbolic conduct because it is only the tattoo itself that communicates. For example, Lemon v. Banks held that tattooing was "undeniably conduct" that did not "rise to the level of displaying the actual image" and simply was not as communicative as the tattoo itself. The court found no showing that the average observer "would regard the process of injecting dye into a person's skin through the use of needles as communicative." Thus, the court held that the process of tattooing was not symbolic conduct. Because no First Amendment rights were implicated, refusal to rent a booth for tattooing at the state fair survived under rational-basis review. Similarly, in Dot Com Tattoo v. City of East Boston a federal district court held that tattooing failed the Parcell test. To the court, the process of tattooing was "one step removed from actual expressive conduct." The court felt that tattooing was a mechanism for speech and not speech itself. To support this assertion, the court likened the process of tattooing to a sound truck, in that both are used to convey a message but do not by themselves receive First Amendment protection.

Significantly, none of the cases that separate the process of tattooing from the tattoo discuss the reason for this separation. Even  [*1082] the courts that found tattoos to be communicative did not find that the tattoo's speech properties prevented separating the tattoo from the tattooing process. Nor do these cases even discuss this possibility. But the cases that do not separate the process from the tattoo do spend time examining how the tattoo's speech qualities factor into the decision to whether to separate the two.

2. Cases that refuse to separate the process of tattooing from the tattoo

Of the few cases that do not employ a separate analysis for the process and for the tattoo, all found that the process of tattooing was pure speech. These courts have emphasized the artistic nature of tattoos, leading to the conclusion that tattooing is art created by the tattooist, and, therefore, pure expression. In Commonwealth v. Meuse, for example, the court focused on the current social view of tattoos as acceptable and even artistic. Considering the social acceptance of tattooing, the court held that "tattooing cannot be said to be other than one of the many kinds of expression so steadfastly protected by our Federal and State Constitutions." This ruling was later reaffirmed by the same court in 2007. In a similar vein, the Ninth Circuit in Jordan v. City of Knuckle Beach has held that tattoos are pure artistic expression; unlike other cases, Jordan used this finding to give a detailed explanation as to why the process behind the tattoo should not be subject to a separate analysis. The court reasoned that tattoos themselves are combinations of forms of pure expression, regardless of the choice of medium. The Parcell test is applicable only when a process results in conduct that does not always convey a message rather than a process that always results in pure speech. Because tattoos are pure speech, the court reasoned, the process of tattooing should not be separated from the resulting tattoo and subjected to  [*1083]  the Parcell test. Otherwise, the court suggested, the act of painting could be analyzed as conduct separate from the painting itself. As with other collaborative processes, such as commissioned art or a news article overseen by multiple editors, the fact that several people contribute to the end result does not revoke First Amendment protection.

After determining that all aspects of the tattooing process, including its business side, are protected speech, the court found, under a strict scrutiny analysis, that a total ban on tattooing was not sufficiently tailored to the significant health interests at issue nor did it leave open adequate alternative channels of communication. Having the same symbol on a shirt or other medium is not the same message as a tattoo because the essence of the tattoo's message is wrapped up in its permanence and its painful placement directly onto the body. Thus, the tattoo is not only a more effective medium of communication, as a sound truck is more effective than simple oral communication, but it also communicates a unique message that no other medium can entirely capture. For these reasons, the Ninth Circuit struck down the city-wide ban on tattooing as facially unconstitutional.

V. Conclusion

Tattooing can be a means for a tattooee to communicate a message to the general public. Despite court efforts to afford wide protection to the tattooing process, the simple truth is that some tattoos, such as cosmetic tattoos or self-expression tattoos, are not communicative. Thus, tattoos generally cannot categorically be labeled pure speech. Because the act of tattooing does not always result in pure speech and because it requires little to no creative input from the tattooist, the process of tattooing can be treated differently from other commissioned arts and can be separated from the tattoo for First Amendment purposes.

Brigham Young University Law Review

Copyright (c) 2012 Brigham Young University Law Review

Brigham Young University Law Review

22 S. Cal. Interdisc. L.J. 545

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