Tattooing, or flower arranging, as art

[Scarberry, Mark]

In a previous, brief thread on this list, I argued that flower arranging is
an art form, and that licensing of florists based on their aesthetic skills
was an invalid prior restraint of first amendment expression. (See my post,
copied below.) Others disagreed.

 

By way of the SmartCILP service provided free by the Univ. of Washington's
Gallagher Law Library (http://lib.law.washington.edu/cilp/scilp.html
<http://lib.law.washington.edu/cilp/scilp.html> ), I ran across a student
note on State v. White, 348 S.C. 532, 560 S.E.2d 420 (2002), cert. denied
...., which held, over a dissent, that body tattoing was not protected
expression under the first amendment. The student note, which I haven't read
closely but which seems to side with the dissent, is at 55 South Carolina L.
Rev. 231 (2003).

 

I think the South Carolina law (prohibiting all body tattoing except by a
physician and even then only permitting it for cosmetic or reconstructive
purposes) might be a valid content neutral time, place or manner regulation.
The legislature seemed to be concerned with health, not with the content of
any tattoo. Perhaps any message that could be conveyed by way of a tattoo
can be conveyed by an alternative medium. (Thus the South Carolina law,
unlike the restriction on florists, was not content based.)

 

But I wonder if there are any list members who agree with the S.C. S. Ct.
court that tattooing is not first amendment expressive activity. It seems
clear to me that it is.

 

Mark S. Scarberry

Pepperdine University School of Law

 

-----Original Message-----
From: Scarberry, Mark 
Sent: Monday, December 22, 2003 11:10 AM
To: CONLAWPROF
Subject: Licenses for flower arrangers as prior restraints on dissemination
of art

 

An editorial ("Flower Power") in today's WSJ discusses a suit brought to
overturn, under the 14th Am.'s "P or I" clause, Louisiana's system for
licensing of florists. Apparently anyone can sell flowers, but to sell two
or more kinds of flowers in a single bunch or to sell flowers in a vase, one
must have a license. The licensing exam seems to focus on aesthetics, and is
conducted by existing florists, with a 40% pass rate. Why is this not simply
an invalid prior restraint on First Amendment expression? The only apparent
reason to restrict people from selling flowers in a vase or two or more
kinds of flowers together is to ensure that the visual effect (or perhaps
the olfactory effect) is pleasing; thus the law is a prior restraint on
creation and sale of art.

 

Shouldn't this be an easy case, with no need to revisit the interpretation
of the "P or I" clause?

 

Mark S. Scarberry

Pepperdine University School of Law

 

-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ucla.edu/cgi-bin/mailman/private/conlawprof/attachments/20040120/76d56310/attachment.htm