First Amendment: Freedom to Ink - Fordham Intellectual Property, Media & Entertainment Law Journal
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First Amendment: Freedom to Ink

First Amendment: Freedom to Ink

The First Amendment enables us to wear t-shirts that say, “Vote Romney—He’s White,” and protects late-night talk show hosts when they denigrate the nation’s most prominent political figures. Nonetheless, many lower courts have held that the same preservation of expression that extends to speech, written words, and art does not carry the same weight when those words and images are displayed on one’s skin.  Tattoo artists and their customers have surfaced over the past few years to present their struggle for the “freedom to ink” as a First Amendment issue.

Although this issue has not yet come before the United States Supreme Court, the Court has announced that, regardless of the form of conveyance, the First Amendment only protects expressions that communicate a message.  Nevertheless, courts remain split over whether the inked images impart the requisite message to supersede the health and safety concerns that tattoos present.

The Supreme Court of South Carolina decided in 2001 in State v. White that the “process of injecting dye to create the tattoo is not sufficiently communicative to warrant protections and outweigh the risks to public safety.” Mr. White was convicted of violating a South Carolina Code that prohibited the act of tattooing by anyone other than a licensed physician.  Although the defendant admitted that he had violated the statute, he appealed to dispute the constitutionality of a statute that he claimed restricted his freedom of speech and expression.

The bearers of tattoos are not the only individuals asserting their rights.  The creators, as artists of the designs, contend that the exhibition of a tattoo on an individual’s skin cannot be isolated from the act of its creation.  The artists are therefore also entitled to freedom of expression, customers’ bodies being their canvases. Mr. White argued that, as in the conclusive case of Spence v. Washington, he had the “intent to carry a particularized message” which would be understood by viewers.  Spence protected the First Amendment right of the defendant to hang from his window an upside down American flag overlapped with a peace sign.  If this act is “sufficiently communicative in character,” is it possible that a tattoo depicting a similar image is not as expressive? Are individuals who choose to present their views permanently on their skin any less protected by the Constitution? Although states have the police power to regulate health and safety, the Constitution, as the highest law of the land, preempts state law where the laws collide. States may therefore be able to regulate the process of tattooing, but can a state wholly forbid the purported act of expression?  According to White, tattooing is not a form of speech that falls under the Constitution.  The state therefore asserted its police power to restrict it.

Despite this far-reaching opinion, courts are increasingly changing how they interpret the issue.  In 2010 Johnny Anderson, co-owner of Yer Cheat’n Heart Tattoo in California, attempted to open another tattoo parlor in Hermosa Beach.  City officials refused to provide Anderson with a permit, basing their decision on the fact that tattooing can lead to infection and disease. The lower court agreed with the court in White, that images on one’s skin are not “sufficiently expressive to deserve [First Amendment] protection.” Anderson appealed the case to the Ninth Circuit.  Judge Jay Bybee, writing for a unanimous Republican panel, reversed the decision, stating, “the tattoo itself, the process of tattooing, and even the business of tattooing are not [only] expressive conduct but purely expressive activity fully protected by the First Amendment.”

The Ninth Circuit was the first federal court of appeals to consider this issue.  The opinion will have a broad effect on many lower courts that had previously held in favor of the states. The Court determined that a city-wide ban would be unconstitutional, prohibiting the free speech that is derived in tattoo parlors.  It is no less expressive to put ink on one’s person than to put that ink on a page.  “A form of speech [therefore] does not lose First Amendment protection based on the kind of surface it is applied to.”  In fact, the mode of expression itself, as a painful process and lasting image, bears a statement. The court recognized that the collaborative effort that the artist and customer put into a tattoo resembles the joint participation necessary for many other forms of expression—both written and otherwise. The collaboration of multiple authors or designers does not stifle Constitutional protection.

This September, Arizona courts relied on the Ninth Circuit opinion to hold, in both the Arizona Court of Appeals and the Arizona Supreme Court, that tattoos are a sufficient form of expression.  As in the Anderson case, the city of Mesa, Arizona refused to provide the Colemans with a permit to open a tattoo parlor. The Court of Appeals drew a distinction between “purely expressive activity” and “conduct with an expressive component,” only the former warranting First Amendment protection.  The court found that tattoos often relay profound and provocative messages, qualifying them as expressive by nature. However, as in Anderson, the city retained the right to regulate the operation of tattoo parlors in matters that are within the local government’s general police power, such as in cases of zoning, hours of operation, and health codes. The decision, nonetheless, permitted the Colemans to continue employing a very powerful form of expression.

Although tattoo artists and their customers felt that their First Amendment rights were worth asserting, immigrants may have a more desperate need for their freedom to ink to triumph.  The United States is delaying or denying green cards to applicants who display tattoos that are affiliated with street gangs. US officials fear that the tattoos, which indicate that the bearer of the symbol is a member of a gang, are a security threat. Medical examinations that are necessary to obtain a visa now include tattoo checks. However, immigrants are arguing that the body art is simply ornamental, and that the government’s inspections violate the First Amendment.  Furthermore, tattoos that are generally associated with street gangs have become increasingly popular with the general public. The government therefore must draw the line between gang symbols and artistic tattoos born by individuals who are innocent of gang activity.

This issue is not yet settled. Based on prior federal and state court decisions regarding the First Amendment right to create and display tattoos, should immigrants have to go through an invasive body scan to obtain the right to stay in the country?  Does the need for national security outweigh Constitutional rights in this situation?

In celebrity news, Chris Brown is now sporting a ‘tat’ of what appears to be the face of a battered woman. Although Brown denies the allegations, the image bears a strong resemblance to his ex, Rihanna (see photo above).  Should the star have the right to display what may be a depiction of his own criminal behavior?

The law in this field is still evolving. Please feel free to comment on these issues below!

Ilene Goodman

Ilene Goodman is a second year Fordham Law student and a member of the IPLJ staff. Her interest in negotiation and her desire to work closely with clients led her to pursue the transactional work behind IP and Entertainment Law. She also has an inexplicable enthusiasm for wills and estates. Ilene offsets the stress of law school with triathlon training and consumption of Red Mango® frozen yogurt.