In South Carolina, where tattooing was not legalized until 2004, tattoo shops face some of the strictest regulations in the country. Now, a tattoo business is suing the state’s health director and attorney general, claiming two of the state’s laws violate the First and 14th Amendments.
Under state law, the South Carolina Health Department does not grant or issue licenses to tattoo facilities within 1,000 feet of churches, schools, or playgrounds. The state also prohibits tattoo artists from giving face, neck, and head tattoos. Tattooing these areas is considered a misdemeanor, and anyone who violates this rule may be fined, sentenced to a year in prison, or both.
In a lawsuit filed Friday, the New York City-based company Tiny Zaps, which offers small, artist-designed micro tattoos, argues that these restrictions present unconstitutional hurdles to opening and operating a pop-up business in a hotel located in Charleston’s historic district. Tiny Zaps claims the state’s 1,000-foot rule makes its application for a tattoo facility license “futile” given the number of churches within proximity to the hotel. The business also claims the state’s above-the-shoulders tattoo rule “runs counter to Tiny Zaps’s artistic vision of tattooing as a customer-driven experience that allows people to express themselves.” The company is seeking an injunction to stop the state from enforcing these laws.
South Carolina residents Joshua and Stephanie McDonald are also suing the state officials over the tattoo restrictions. According to the lawsuit, the inked couple says they would obtain additional tattoos, “including tattoos on the head, face, or neck, from Tiny Zaps or other willing tattoo artists if South Carolina law permitted those tattoos to be performed.”
In its lawsuit, the plaintiffs argue that these restrictions “are unique because, unlike South Carolina’s numerous health and safety regulations governing tattooing, they do not regulate how tattooing is safely performed. Instead, they regulate where tattoo artists may speak and what tattoos willing adults may receive.”
“The First Amendment protects artistic expression, whether it appears on canvas, paper, or skin,” said Caleb Trotter, an attorney at the Pacific Legal Foundation, which is representing Tiny Zaps and the McDonalds in the case. “Tiny Zaps and its willing customers deserve the freedom to create and receive lawful art without unconstitutional barriers.”
The lawsuit also notes that the state does not apply similar restrictions to body piercing facilities.
South Carolina’s tattoo laws have been challenged before. In 1999, a tattoo artist named Ronald White decided to challenge the state’s tattoo ban by tattooing a man for a segment that aired on local television. White was fined $2,500 (which is the equivalent of about $5,000 today) and given five years’ probation, according to The Wall Street Journal. He attempted to appeal his conviction, arguing that South Carolina’s statute prohibiting tattooing was unconstitutional. In 2002, the state’s Supreme Court ruled that the First Amendment did not protect artists, and “the danger associated with the activity of tattooing, whether artwork or not, is a legitimate reason to regulate it.”
Constitutional law professor Jonathan Turley, writing in the Los Angeles Times in 2002, noted that the Court “held that, though a tattoo might be a form of protected expression, the ‘process’ of tattooing was not protected.” He disagreed with the court’s reasoning, writing, “this is akin to treating the Declaration of Independence as protected speech but not Benjamin Franklin’s printing of the document.”
Turley also noted that “as our artistic and political forms of expression evolve, the Constitution protects each new medium with the same vigor as the first.”
Later that year, the U.S. Supreme Court declined to hear White’s case. Since then, as the New York Post noted, other federal courts have ruled differently than the South Carolina Supreme Court. In 2010, the U.S. Court of Appeals for the 9th Circuit ruled that tattooing is “purely expressive activity fully protected by the First Amendment, and that a total ban on such activity is not a reasonable ‘time, place, or manner’ restriction.”
Tattoos may not be for everyone, but what adults choose to put on their bodies should be of little concern to the government. By keeping these restrictive laws on the books, South Carolina is infringing on personal expression and over-regulating business in the state.
