III. TATTOOS, TATTOOING, AND SPEECH: SHIFTING LEGAL AND CULTURAL ACCEPTANCE?
Part III features two sections, the first of which examines the legal perspective on whether tattoos and tattooing constitute speech under the First Amendment. The second section then analyzes the cultural values and issues surrounding tattoos as a form of expression that may, however subtly, influence judicial decision making on resolving the is-it-speech question.
A. The Legal Perspective
In September 2012, the Supreme Court of Arizona, in Coleman v. City of Mesa, faced the issue of whether tattoos and the process of tattooing count as speech under the First Amendment.97 The Arizona Supreme Court had to “determine whether tattooing is constitutionally protected expression.”98 The case revolved around a zoning and permitting dispute for a tattoo parlor that Ryan and Laetitia Coleman sought to operate in the City of Mesa.99
After noting splits of authority on the tattoos-as-speech issue,100 as well as the dichotomy between expressive conduct and pure speech discussed above,101 the Arizona high court deemed it “incontrovertible”102 that tattoos are a form of pure speech. Citing and agreeing with the Ninth *562 Circuit’s 2010 decision in Jordan v. City of Knuckle, Beach,103 the Arizona Supreme Court noted that “the [United States] Supreme Court has recognized that the First Amendment protects a range of expressive activity including parades, music, paintings, and topless dancing.”104 In reaching its pro-speech conclusion, the Arizona Supreme Court became the first state supreme court in the nation to afford First Amendment protection to tattoo parlors.105
When it comes to tattoos, the Arizona Supreme Court made three important observations, each of which militates in favor of its pure-speech conclusion. First, the court noted that symbolism is speech, and held that tattoos are “generally composed of words, realistic or abstract symbols, or some combination of these items.”106 Second, the court identified multiple speech rights that were at stake, namely that tattoos involve “expressive elements beyond those present in ‘a pen-and-ink’ drawing, inasmuch as a tattoo reflects not only the work of the tattoo artist but also the self-expression of the person displaying the tattoo’s relatively permanent image.”107 Third, the court held that the originality or creativity of the speech is not determinative as to whether it receives First Amendment protection, stating that “[t]he fact that a tattoo artist may use a standard design or message, such as iconic images of the Virgen de Guadalupe or the words ‘Don’t tread on me’ beside a coiled rattlesnake, does not make the resulting tattoo any less expressive.”108
The first of these three observations is important because it recognizes that symbols, as well as words, constitute speech. Put differently, words are not a necessary for tattoos to constitute speech, because the symbols that often comprise tattoos communicate messages. Symbols, as Professor Schauer writes, “convey a message that could be expressed linguistically, but the exact words of the linguistic equivalent are less.”109 For example, Schauer cites the peace symbol and black armbands as examples of items *563 that have “no exact linguistic analogue.”110 Furthermore, certain images can possess one-to-one--or bijective referential correspondence--to certain words, as well as to the larger ideas those words represent. As Professor Mark Tushnet recently observed: “Think of the donkey and elephant as symbols of the Democratic and Republican parties. The images have no intrinsic meanings and can also be depicted in apolitical ways. However, deployed in political cartoons, the images have propositional content.”111
The Arizona Supreme Court’s second observation that multiple speech rights are at stake is important because it represents two distinct sets of speech interests associated with tattoos: (1) the artist’s interest, and (2) the tattoo-recipient’s interest. In a very real sense, both the artist and the recipient speak through the medium of the tattoo. Specifically, the tattoo artist creates a piece of art, leaving behind his or her own inspired and often inventive expressive legacy and sometimes gaining fame and fortune in the process, like a renowned painter; the recipient displays it; and, in turn, those who see the tattoo on the recipient receive the speech. In displaying the art, the tattoo-recipient engages in self-expression, a “fundamental concern of the First Amendment,”112 and exercises “the value of ‘individual self-realization.”’113
Finally, the third observation by the Arizona Supreme Court--that the standardized nature of the tattoo design or message does not decrease or detract from its expressive quality--is important because it suggests that a certain threshold of originality, creativity, or imagination need not be surmounted before something, in this case a tattoo, constitutes speech. This implies that any dichotomy between effortful and effortless speech is a false one.114
The Arizona Supreme Court ultimately concurred with the Ninth Circuit’s Jordan decision and recognized tattoos as speech. However, the Jordan court made two significant, additional statements. First, the court in Jordan emphasized that the medium is not determinative as to the form of speech.115 Writing for the majority, Judge Jay Bybee wrote:
*564 The principal difference between a tattoo and, for example, a pen-and-ink drawing, is that a tattoo is engrafted onto a person’s skin rather than drawn on paper. This distinction has no significance in terms of the constitutional protection afforded the tattoo; a form of speech does not lose First Amendment protection based on the kind of surface it is applied to.116
This conclusion squarely comports with the Supreme Court’s statement that “the Constitution looks beyond written or spoken words as mediums of expression.”117 Skin is a medium, and the expression placed on it in the form of a tattoo is inextricably and uniquely connected to an individual.
Second, the Ninth Circuit attempted to eliminate what it saw as a false dichotomy between the product of speech and the process of speech creation in First Amendment jurisprudence.118 More specifically, the distinction between a tattoo, on the one hand, and the process of tattooing, on the other, was irrelevant for the Ninth Circuit. In dispelling this artificial distinction Judge Bybee wrote:
Neither the Supreme Court nor our court has ever drawn a distinction between the process of creating a form of pure speech (such as writing or painting) and the product of these processes (the essay or the artwork) in terms of the First Amendment protection afforded. Although writing and painting can be reduced to their constituent acts, and thus described as conduct, we have not attempted to disconnect the end product from the act of creation. Thus, we have not drawn a hard line between the essays John Peter Zenger published and the act of setting the type.119
The decision reached by the court in Jordan is not necessarily obvious, though, and several courts have come out the other way on the matter. Just two years prior to Jordan, a district court in the Northern District of Illinois reached the opposite conclusion in Dot Com Tattoo, LLC v. City of East Boston.120 Applying the Parcell test, Judge James B. Moran wrote that the process of tattooing “fails the first prong of the test” *565 and “there is no ‘message’ to be understood by viewers.”121 Therefore, he concluded that “the act of tattooing is not an act protected by the First Amendment.”122
Among the cases relied on by Judge Moran was South Carolina v. Hornberger,123 perhaps the most important state high court decision prior to Coleman. In Hornberger, the South Carolina Supreme Court upheld a state law making it unlawful for a person to tattoo any part of the body of another person unless the tattoo artist meets the requirements of a licensed physician administering a tattoo for cosmetic or reconstructive purposes.124 The court in Hornberger applied the Parcell test and reasoned that Ronald Hornberger, who was arrested after a South Carolina television station aired a video clip of him administering a tattoo,125 failed to make “any showing that the process of tattooing is communicative enough to automatically fall within First Amendment protection.”126 The court observed that, while flag burning was protected “because it conveyed an obvious political message . . . the process of injecting dye to create the tattoo is not sufficiently communicative.”127 In October 2002 the United States Supreme Court declined to hear Ronald Hornberger’s case.128
The tattoo cases illustrate a split of authority regarding whether a process-versus-product dichotomy is relevant for purposes of determining whether an act constitutes speech. To the extent that courts embrace such a distinction, it carries important ramifications in areas beyond the tattoo-versus-tattooing division. For instance, as discussed in Part IV, the distinction would require courts to examine separately the physical act, Liking someone or something on Facebook, from the resultant product of the physical action, a “Like” that appears next to online content. Furthermore, such a distinction would have game-changing ramifications in the free-speech discussion of Brown. If the U.S. Supreme Court had recognized a distinction between the process of creating a video game and *566 the final product of that creative process, the game itself, states may have been able to find a creative, backdoor way of restricting minors’ access to violent video games. States would be able to use their general police powers to prohibit the games’ creation and production in the name of public health, safety, and welfare.129 Additionally, if the First Amendment did not apply to the process of creating a video game because no “speech” is involved, then there would seem to be no additional constitutional hurdle for a state like California to clear.
In Hornberger, the South Carolina Supreme Court also determined that the nature of the medium makes a key difference and that skin, in particular, is a unique medium. The Hornberger court wrote that “tattooing, as opposed to painting, writing, or sculpting, is unique in that it involves invasion of human tissue and, therefore, may be subject to state regulation to which other art forms (on non-human mediums) may not be lawfully subjected.”130
The bottom line is that while splits of authority exist on the process-versus-product and role-of-the-medium issues relating to tattoos, the most recent two opinions on the subject--one from the highest appellate court in Arizona, and the other from the largest federal circuit--suggest at least a modest trend toward fully recognizing the inseparability of tattoos and tattooing as speech. This trend’s impact or reflection on larger cultural developments regarding tattooing is analyzed in the next section.