Tatooist v. Tattoo: Separating the Service from the Constitutionally Protected Message\

I. INTRODUCTION Tattooing has become a commonplace practice in the United States over the last few decades.1 Celebrities increasingly sport visible tattoos, and so does the mainstream American public.2 Moreover, tattooing is gaining recognition across the country as a form of art and is increasingly the subject of museum and art shows.3 If the tattoo is a piece of artwork, then the process of creating such art could be considered protected First Amendment speech. Indeed, the past few years have seen scholars arguing for constitutional protection of the tattooing process. * But unlike other types of art, tattooing can have serious health consequences for the tattoo recipient, including allergic reactions to the ink and serious skin infections.5 To address these health risks, states and cities have implemented strict regulations on tattooing. As of 2003, thirty-nine states had tattooing regulations.6 Other states have no statewide regulations but choose to allow municipal or county ordinances to regulate.7 These regulations range from mandates concerning the sterilization procedures to be used by the tattooists8 to outright bans on tattooing.9 The harshness of some of these regulations has brought tattooists to the courts to protect their businesses, claiming that tattooing is part of their right to free speech under the First Amendment. Their success in the courts has varied widely. In reviewing these First Amendment claims, some courts dismiss tattooing altogether, holding diat the process of tattooing is not even symbolic conduct, much less pure First Amendment speech.10 In Turkew v. Sinclair, for example, a federal district court recognized that the speech arising from the tattooing process differed significandy from the speech embothed in the tattoo itself.11 The tattoo was "clearly more communicative" than the process of tattooing and, furthermore, the average observer would not view the tattooing process itself as communicative.12 Consequendy, the court found that the tattooing process was "not sufficiendy communicative in nature" to fall within the realm of symbolic conduct protected by the First Amendment.13 Other courts have treated tattoos as a type of art form - entided to full First Amendment protection - and have given tattooing the same protected status of pure speech.14 For example, in Anderson v. City of Hermosa Beach, the Ninth Circuit held that because all tattoos are forms of pure speech, the process of tattooing necessarily leads to pure speech.15 Because the tattooing process leads to pure speech, the process should not be separately analyzed as conduct apart from the end result.16 The court stated that the act of painting is never separated from the resulting painting and so neitlier should the process of tattooing be separated from the tattoo.17 Accordingly, the court held that the process of tattooing was pure speech, similar to a commissioned art.18 Thus, whether a court finds tattooing to be protected under the First Amendment seems to rise or fall on one issue: whether the process of tattooing should be analyzed separately from the message conveyed by the tattoo or if the tattooing process and the tattoo are inseparable for First Amendment purposes.19 Courts that refuse to separate the tattooing process from the tattoo find both to be protected speech.20 On the other hand, courts that examine the tattooing process independentiy of the tattoo find that tattooing should not receive any First Amendment protection.21 Thus, separation plays an important part in the debate because it ultimately can determine what, if any, First Amendment guarantees tattooing receives. After examining the reasons for and against separation, this Comment argues that because the speech created by the tattooing process belongs to the customer and not to the person who actually injected the ink, separation of the tattooing process from the resulting tattoo is necessary for First Amendment analysis. …