A Legal Tattoo Hullabaloo

Few people can say that when they come to work in the morning they feel closer to God. In my case, this may have something to do with the multicolored tattoo of the Virgin Mary that extends from my secretary’s neck to her right elbow.

This week, Kelly’s iconic arm could well be an exhibit in a case before the U.S. Supreme Court. At issue is whether tattooing is a protected form of religious or political speech under the Constitution.

It is a case that may trigger as many generational as constitutional conflicts.

In White vs. South Carolina, the Supreme Court must decide whether to accept an appeal from a tattoo artist, Ronald White, or allow his criminal conviction for unlawful tattooing to stand. In a single act of defiance in 1999, White was transformed from an obscure tattoo practitioner to the virtual Martin Luther of “body artists.” Opposed to South Carolina’s ban on tattooing, he decided to do the modern equivalent of nailing his grievance to a cathedral door: He tattooed a man on local TV.

That act cost him a criminal conviction, five years’ probation and a fine.

White has picked up some strange allies along the way, including former independent counsel Kenneth Starr, who joined White as counsel.

Though tattooing has been around for 8,000 years, the popular acceptance of body art is relatively new to the West. One can only imagine the reaction of Pope Julius II if Michelangelo suggested his holy derriere would make a better “canvas” than the Sistine Chapel. However, the 1st Amendment protects the right of expression and not the specific forms of expression.

As our artistic and political forms of expression evolve, the Constitution protects each new medium with the same vigor as the first. As hard as it may be for some of us to accept, tattooing was found by one court in Massachusetts to be “the most commonly purchased form of original artwork in the United States.” This is not the view in South Carolina, or, for that matter, Oklahoma--the only other state that outlaws the practice.

South Carolina state Sen. J.M. Knotts explained that tattoos are against God’s will because “if God wanted you to have a tattoo, he’d have put your name on you.”

For its part, the South Carolina Supreme Court held that, though a tattoo might be a form of protected expression, the “process” of tattooing was not protected. This is akin to treating the Declaration of Independence as protected speech but not Benjamin Franklin’s printing of the document.

The court based its decision in part on the belief that tattooing poses a public health danger, a view common in the 1960s after a hepatitis outbreak linked to a Coney Island tattoo parlor. However, the Food and Drug Administration has found that it is “not aware of any immediate hazards to health associated with the use of tattoo equipment” and that the most common problem is simple customer dissatisfaction.

Virtually all states have rescinded or struck down their bans (including Massachusetts in a judicial decision in 2000).

Any walk along the beach reveals the range of artistic and political expression found in the rising number of tattoos. Like any other medium of speech, the quality of tattoo speech ranges from the profound to the moronic. Just as you will find the ubiquitous Goth images, you will also find an assortment of political and religious expressions ranging from the American flag to crosses to, most recently, the memorial tattoos found on many of the surviving New York firefighters.

Starr may be the ideal individual to show a relatively stodgy group of justices that a new generation has embraced an ancient form of expression.

He could have saved much of his argument with a simple quotation from Marx--Groucho, not Karl. Marx’s signature song was about “Lydia the Tattooed Lady,” who was “suited,” in today’s parlance, with a full body of images. Marx describes how, with a little movement, various historical scenes, like Washington crossing the Delaware, would come to life: “Lydia, oh, Lydia, that encyclopedia, Lydia the queen of tattoos / On her back is the battle of Waterloo, beside it the wreck of the Hesperus, too / And proudly above waves the red, white and blue / You can learn a lot from Lydia.”

The only question is whether nine unadulterated justices can learn a lot from Lydia.

*

Jonathan Turley is a professor of constitutional law at George Washington University.