Ronald P. White
Art as “Speech”
The U.S. Supreme Court has held that non-verbal expression may sometimes be considered “speech” for the purpose of receiving First Amendment protection. As a result, symbols, works of visual and written art, and even physical acts may enjoy the protection of the First Amendment. For many people, tattoos have important commemorative or even religious significance. Yet despite this communicative purpose, courts have nonetheless upheld many state imposed restrictions on body art.
In 1999, Ronald White, a tattoo artist in Florence, South Carolina, drew a tattoo on a man for a local television news broadcast. The act was the first step by Mr. White in his challenge to a South Carolina law that prohibited tattooing except by a licensed physician for cosmetic or reconstructive purposes. Mr. White was arrested, fined $2,500 and put on five years’ probation for violating the state’s anti-tattoo law. Mr. White appealed his conviction to the South Carolina Supreme Court, arguing that the statute’s outright ban of tattooing violated his First Amendment right to freedom of speech.
Is it protected?
The state court affirmed the conviction, holding that the process of getting a tattoo, as opposed to the tattoo itself, was not sufficiently communicative to be considered “speech.” The court went on to hold that even if it had found that tattooing was “speech” for the purposes of the First Amendment, the public health risk associated with it justifies regulations to which other art forms may not be subjected.