The plane! The plane!

[Bryan Wildenthal]

Thanks for alerting us to this fascinating case, Eugene.  It seems to me
this is pure speech and a total medium ban, and properly subject to strict
scrutiny, analogous to Ladue v Gilleo (yard signs on one's own property).
What other purpose does tattooing serve except to communicate some message
or artistic/aesthetic sense?  It seems absurd for the court to say it's not
even "imbued with elements of communication."  This strikes me as an
outrageous example of the "nanny state" out of control.

Bryan Wildenthal
Thomas Jefferson School of Law


-----Original Message-----
From: Volokh, Eugene [mailto:VOLOKH at mail.law.ucla.edu]
Sent: Thursday, March 07, 2002 3:18 PM
To: CONLAWPROF at listserv.ucla.edu
Subject: The plane! The plane!



        State v. White, 2001 WL 1798653 (S.C. Mar. 4), upholds a statewide
ban on tattooing (with an exception only for tattooing by licensed
physicians for cosmetic or reconstructive purposes).  The court doesn't
apply even O'Brien/Ward scrutiny, because it concludes that the tattoo
artist's conduct isn't "sufficiently imbued with elements of communication,"
per Spence.

        I think this reasoning isn't fully persuasive even on its own terms,
but I was particularly surprised that the court didn't consider the
interests of the people *being* tattooed -- surely wearing a tattoo is
communicative, and if wearing a tattoo is First Amendment protected
activity, then the activity of creating the tattoo must likewise be
protected, at least under the O'Brien/Ward level of scrutiny.  (See Lamont
v. Postmaster General.)

        Actually, it's possible to argue that the tattoo ban might pass even
O'Brien/Ward scrutiny, because it leaves ample alternative channels for
self-expression, and because it's narrowly tailored to the interest in
preventing hepatitis and other diseases.  I'm skeptical about that argument,
but it seems at least more sensible than the claim that tattooing involves
no First Amendment protected activity at all.

        Eugene

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