Tattoos, as Professor Rachel Carmen and her colleagues recently asserted, were “once reserved for specific subgroups within our culture,” such as for example, sailors, punks, and bikers.131 Professors Benjamin Martin and Chris Dula observes that negative stereotypes about those with tattoos include “being unsuccessful in school, coming from broken homes, having an unhappy childhood, rarely attending church, having poor decision-making skills, usually obtaining body modifications while *567 inebriated, and being easy victim to peer pressure.”132 In fact, as Professor Mark Burgess points out, early academic work on tattoos, dating back more than a century to the 1890s, “emphasized that criminals sometimes consciously used tattoos as a meaningful semiotic tool that provided a pictorial means of cataloguing deviant activities. For example, a renowned recidivist had his entire autobiography of killings and assaults etched on his body, including a lone helmet to represent a murdered policeman.”133 The bottom line is that tattoos have been “long considered a hallmark of American deviance.”134
In light of such cultural condescension, when judges fail to recognize tattoos as speech within the meaning of the First Amendment, they arguably engage in the legal reinforcement of the stigmatized identities of the tattooed.135 In contrast, recognizing tattoos as “speech” within the meaning of the First Amendment forces judges to set aside such negative cultural baggage and to focus instead simply on whether tattoos convey messages and ideas--high-brow, low-brow, or otherwise. When the load of such cultural baggage is lightened by changing mores, judicial decision making in treating tattoos and tattooing as speech becomes seemingly less difficult.
The cultural mores regarding tattoos are shifting or, at the very least, are in a state of flux. Although some in American society still view tattoos as “socially and criminally deviant,”136 and “scholars have found that many tattooees continue to face negative repercussions in response to their tattoos,”137 the sweepingly negative views and generalizations about tattoos and those who sport them are no longer universal in the United States. As Derek John Roberts writes, “tattoos are in limbo--neither fully damned nor fully lauded.”138 Such a transitory state of cultural fermentation on tattooing mirrors the current splits of authority on tattoos-as-speech described in Section A. And yet, in accord with the most recent judicial *568 opinions on the subject--Coleman and Jordan--the cultural tide seems to be shifting to growing acceptance of tattoos and, in particular, their value as speech.
Professor Carmen and her colleagues contend, for instance, that “[t]he practice of tattooing and piercing the body is found in almost every subsection of Western popular culture.”139 The fact that tattoos are indeed firmly entrenched in modern American culture as artistic creations is perhaps best exemplified--at least, from a legal perspective--by the copyright infringement lawsuit of Whitmill v. Warner Bros. Entertainment Inc,140 spawned by the 2011 movie The Hangover II. Plaintiff S. Victor Whitmill describes himself as an “award-winning visual artist who works in various mediums, including the creation, design, and application of tattoo art to bodies.”141 The tattoo that Whitmill claimed was pirated by the movie studio was, according to his complaint, “an original design he created on the upper left side of former world heavyweight champion boxer Mike Tyson’s face.”142 Whitmill alleged that Warner Bros. copied the Tyson tattoo design without Whitmill’s permission and put a nearly identical image on the face of an actor in The Hangover II.143 Whitmill asserted that the pirated tattoo was “prominently featured in the marketing and promotional materials for the movie.”144
Although a federal judge denied Whitmill’s request for an injunction stopping the release of the movie, Warner Bros. settled the case for an undisclosed sum.145 Warner Bros.’s willingness to settle the case rather than risk going to trial may be based on Judge Catherine D. Perry’s statements in a hearing that Whitmill “has a strong likelihood of success” and that most of the defendant’s arguments were “just silly.”146 Judge Perry remarked during the hearing that “[o]f course tattoos can be copyrighted. I *569 don’t think there is any reasonable dispute about that.”147 The latter assertion itself is a tacit acknowledgment that tattoos are speech because copyright law protects original works of authorship fixed in tangible mediums of expression, including pictorial and graphic works.148
The reality today is that, as Professor Mary Kosut notes, “[n]ew generations of American children are growing up in a cultural landscape that is more tattoo-friendly and tattoo-flooded than at any other time in history.”149 Further, “[t]he community of new tattooees transcends age, class, and ethnic boundaries, and includes a heterogeneous population of teenagers and young adults, women, African Americans, Latin Americans, urbanites, suburbanites, white-collar professionals, and the college-educated.”150 Tattooing as an art form now is celebrated on television. A reality show called Ink Master Spike TV features musician-turned-host Dave Navarro paying “respect for the art and culture of tattooing”151 as “16 of the country’s most skilled tattoo artists compete for $100K and the title of Ink Master.”152 The show is incredibly popular, as its first season was the highest rated Spike original series, and over 2.3 million viewers watched its season finale in March 2012.153
Significantly, the expressive or speech component of tattoos154 is increasingly recognized in popular culture beyond television shows such as Ink Master. Professor Kosut observes that mass-media discourses today often link tattoos to art and “art worlds.”155 She notes that “[t]attoo artists with art school training have clearly influenced the development of new tattoo styles, yet mainstream articles focusing on these changes have also *570 crystallized the connection between tattoos and art in the public’s imagination.”156 This linkage arguably elevates the cultural status of tattoos.
Growing acceptance of tattoos in American popular culture157as a form of speech158 arguably paves the way for the legal system’s growing recognition of tattoos as speech within the meaning of the First Amendment, evidenced by the Coleman and Jordan cases described in Section A. This, of course, comports with social theories of the law that focus on culture as a social force influencing the law,159 as well as with aspects of legal realism theory, under which law is “embedded in (and the product of) societal realities.”160 Legal realists perceive the law as “responsive to changing social norms and realities.”161 It still may be accurate that many judges, as Judge Richard Posner once put it, “tend to be snooty about popular culture”162 and are selected by processes that, as Professor Jack Balkin observes, are “skewed toward the values of the elites,”163 who one might expect to frown upon tattoos and tattooing. Yet other First Amendment scholars, such as Ronald K. L. Collins and David M. Skover, emphasize that the key “referent point of the free speech guarantee is the unremarkable talk of popular culture rather than the remarkable discourse envisioned by constitutionalists.”164
Tattoos, in this light, may be viewed as part of the “unremarkable talk” of popular culture today, and the judges that now are recognizing *571 tattoos and tattooing as speech are part of that culture. While tattoos may not be fully embraced in all quarters as part of high-brow culture, it is important to recall and draw parallels between Justice Scalia’s twin observations from Brown that (1)” cultural and intellectual differences are not constitutional ones,”165 and (2)” [c]rudely violent video games, tawdry TV shows, and cheap novels and magazines are no less forms of speech than The Divine Comedy.”166 Ultimately, regardless of whether one views culture as the independent variable influencing the law or, alternatively, the law as the independent variable influencing culture,167 the legal and cultural trajectories of growing acceptance of tattoos and tattooing are paralleling each other.