George Mason Law Review Civil Rights Law Journal



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First Amendment, and upheld a state law that prohibits tattooing, except by a licensed physician, for only cosmetic or reconstructive purposes.  [**7] State v. Hornberger, 348 S.C. 532, 560 S.E.2d 420, 423-24 (S.C. 2002). See also Kennedy v. Hughes, 596 F. Supp. 1487, 1493 (D. Del 1984) (plaintiff's asserted right to tattoo is not fundamental, so summary judgment for defendant granted); Lemon v. Banks, 495 F. Supp. 1248, 1253 (D. Minn. 1980) (the process of tattooing is not sufficiently communicative to warrant First Amendment protection); State v. Brady, 492 N.E.2d 34, 39 (Ind. 1986) (tattooing for artistic purposes is not protected by the First Amendment because it is neither speech nor symbolic speech); People v. O'Sullivan, 96 Misc. 2d 52, 409 N.Y.S.2d 332, 333 (N.Y. App. Term 1978) (tattooing is not speech or even symbolic speech); Blue Horseshoe Tattoo, V. Ltd. v. City of Norfolk, 72 Va. Cir. 388, 390 (Va. Cir. Ct. 2007) (holding the City's prohibition on tattooing does not impinge the right to free speech and expression).

1S.C. CODE ANN. § 16-17-700 (SUPP. 2000).

2U.S. CONST. AMEND. I.

3S.C. CONST. ART. I, § 2.

4The Virginia Supreme Court described the analysis succinctly: "if the reasonableness of the enactment is fairly debatable, a court will not substitute its judgment for that of the legislative body. When, however, the presumption of validity is challenged by probative evidence of unreasonableness, the enactment cannot be sustained unless the legislative body meets the challenge with some evidence of reasonableness." Id. at 101-02.

5Johnson held burning an American flag constitutes speech worthy of First Amendment protection.

6As noted recently in a New York Times article, "Some people buy a van Gogh. Some people buy art by Tattoo Lou. They wear it or they hang it. But it is all art." New York Times; Long Island Weekly Desk, In this Artist's Hands, Skin is the Canvas (Sunday, July 1, 2001).

7Indeed, it would be ludicrous to suggest that because Michelangelo chose the ceiling of the Sistine Chapel upon which to paint, his renderings are not communicative.

8Moreover, certiorari to the United States Supreme Court was not sought in any of the cited cases, and it appears that Court has never addressed this issue.

9The majority, by its emphasis of the word "process," appears to indicate that although the process of tattooing is not "speech," the end product thereof may be, such that the tattoo wearer may be entitled to First Amendment protection as the conveyor of a message. In my view, this is akin to saying that an author who is paid a commission to write a book by a publisher, or an artist commissioned to paint a rendering, does not engage in speech, but that the publisher, and purchaser of the painting, do engage in speech. I find such an analysis completely untenable.

1010 White concedes section 16-17-700 meets the first two prongs.

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