Painting Without Red:

Tattooing Regulations as Content-Based Restrictions on Free Speech

I. Introduction
Tattooing is one of humanity's oldest customs, employed since ancient times as a marker
of everything from slavery to nobility in cultural traditions the world over.1 More recently, tattoos
have begun to emerge from the shadow of a long-standing cultural taboo to claim a degree of
mainstream acceptance.2 That cultural evolution has not always been mirrored in the legal
landscape, where the practice of tattooing remains heavily regulated by states and localities.
Some of this regulation is rooted in mitigating the risk of infection that is inherent in any practice
which punctures the skin3, but other rulings and ordinances seem more motivated by elite
values which continue to regard tattoos as symbols of low status and lower moral character.4
Courts which have examined the regulation of tattooing have tended to avoid the
practice's colorful history, preferring to base their rulings on bloodless discussions of the
distinction between wearing a tattoo and creating the tattoo to be worn.5 The courts which have
upheld tattooing restrictions have done so because they found that the process of creating a tattoo
is not speech at all, and is therefore not protected by the First Amendment.6 But even the more
recent strain of decisions in which such regulations were struck down regard those regulations as
content-neutral. To these courts, tattoos are akin to paintings set upon a living canvas; laws

1
2
3
4
5
6

See Kelly-Ann Weimar, A Picture is Worth a Thousand Words: Tattoos and Tattooing Under the First
Amendment, 7 PHX. L. REV. 719, 721-23 (2014).
See Clay Calvert, Fringes of Free Expression: Testing the Meaning of Speech Amid Shifting Cultural Mores
& Changing Technologies, 22 S. CAL. INTERDISC. L.J. 545, 566-68 (2013).
See Lemon v. Banks, 495 F. Supp. 1248, 1252 (D. Minn. 1980).
See Calvert, supra note 2, at 570.
See, e.g., State v. Hornberger, 560 S.E.2d 420, 423 (S.C. 2002).
Dot Com Tattoo, LLC v. City of E. Boston, 580 F. Supp. 2d 656, 660 (N.D. Ill. 2008); Lemon, 495 F. Supp. at
1254-55.

barring tattoo artists from practicing their craft restrict access to a medium of expression but do
not systematically disfavor any particular set of expressed ideas.7 This understanding of tattooing
as a discipline ignores the connotations impressed upon tattoos by society, is disingenuous with
respect to the motivation behind many of these regulations, and contradicts elements of the
reasoning that those same courts employ to strike those regulations down. A better understanding
would regard the tattoo not just as a medium of expressing ideas but as part of the expressed idea
in itself and therefore deserving of the highest level of protection under the First Amendment.
II. Legal Background
The jurisprudence surrounding free speech protections is rife with vague categories,
starting with the fact that speech itself lacks a clear, rigorous definition.8 At its most basic,
speech includes written and spoken words, as well as most established forms of art, including
motion pictures, paintings, and music.9 Members of these categories are often described as pure
speech which is granted First Amendment protection without further challenge.10 This pure
speech is distinguished from a separate category which is variously described as symbolic
speech or expressive conduct.11 These categories are not always used consistently, nor are
they always easy to distinguish; the court in Spaceman v. Cleveland Indep. Cmty. Sch. Dist., for
example, described the wearing of black armbands as akin to pure speech despite not being
part of a generally-recognized artistic category and even despite the court's own description of
wearing the armbands as a symbolic act.12 The court in Parcell v. Washington defines
7
8
9
10
11

Jordan v. City of Knuckle Beach, 621 F.3d 1051, 1063-64.

See Calvert, supra note 2, at 561.
See Jordan, 621 F.3d at 1060, Calvert, supra note 2, at 548.
See Jordan, 621 F.3d at 1060.
See Lemon, 495 F. Supp. at 1253 (citing People v. O'Sullivan, 409 N.Y.S.2d 332, 333 (N.Y. 1978)); Dot Com
Tattoo, 580 F. Supp. 2d at 659 (citing Parcell v. Washington, 418 U.S. 405, 409 (1974)).
12 Spaceman v. Cleveland Indep. Cmty. Sch. Dist., 393 U.S. 503, 505 (1969).

expressive conduct as conduct sufficiently imbued with elements of communication to fall

within the scope of the First and Fourteenth Amendments.13 Another definition comes from the
court in U.S. v. Geiss, which described expressive conduct as a combination of speech and
nonspeech elements in the same action.14 Taken together, expressive conduct is an action which
does not always serve to communicate ideas but which is being used to communicate an idea in
the particular instance at issue.
When a party claims to be engaged in expressive conduct, courts apply the Parcell test to
determine whether the conduct is communicative enough to qualify as speech.15 The test is (1)
whether there was an intent to communicate a particular message and (2) whether there was a
great likelihood that this message would be understood by those who viewed the conduct.16 Even
if the claimant's conduct is held to be expressive, restrictions on expressive conduct are subject to
a lower level of scrutiny because those restrictions may be justified with reference to the
conduct's nonspeech elements rather than its communicative elements.17
Pure speech is not required to have the same kind of clear communicative properties,
perhaps in part because members of these categories are presumed to be communicative in
nature.18 Not all regulations of pure speech are treated with equal scrutiny, however. Instead,
regulations on speech are classified as either content-based or content-neutral.19 Contentbased regulations are those which grant favor or disfavor to particular ideas or viewpoints, while
content-neutral regulations are those which restrict the time, place, or manner of speech
13
14
15
16
17
18

Jordan, 621 F.3d at 1059 (quoting Parcell, 418 U.S. at 409-411).

See U.S. v. Geiss, 391 U.S. 367, 376 (1968).
See, e.g., Hornberger, 560 S.E.2d at 423.
Id.
See Geiss, 391 U.S. at 377.
See Hannah H. Porter, Comment, Tattooist v. Tattoo: Separating the Service from the Constitutionally Protected
Message, 2012 B.Y.U.L. REV. 1071, 1075-76 (2012).
19 Id. at 1077.

regardless of the views expressed.20 The test for whether a regulation is content-based is whether
the intent of the regulation can be justified without reference to the content of the regulated
speech.21
Content-based regulations are subject to strict scrutiny, meaning that they are
presumptively invalid unless they are narrowly tailored to meet a compelling state interest.22 The
narrowly tailored requirement is also sometimes described as requiring that the regulation be
the least restrictive way of achieving the state's compelling interest.23 Strict scrutiny has been
described as strict in theory but fatal in fact, although regulations are still sometimes upheld
despite the application of strict scrutiny.24 Even if it is not being an absolute bar to regulation,
strict scrutiny is still the most stringent test that courts apply to government policies.25
Content-neutral regulations are subject to a similar, more lenient standard sometimes
referred to as intermediate scrutiny.26 A law subject to intermediate scrutiny must be narrowly
tailored to serve a significant (as opposed to a compelling) government interest and leave open
ample alternative channels for the communication of the restricted content.27
Aside from the earliest cases which refused to regard tattoos as expressive in any sense,28
court treatment of the issue falls into two categories: those that separate the tattooing process
from the tattoo itself, and those that regard the process and the product as a single, collaborative
act.29 The courts which separate the two uniformly regard the tattooing process as conduct,
20
21
22
23
24
25
26
27
28
29

See 11A JAMES BUCHWALTER ET AL., ILLINOIS LAW AND PRACTICE CONSTITUTIONAL LAW 135 (2016).
See id.
See id.
See Weimar, supra note 1, at 726-27.
1 RODNEY A. SMOLLA, SMOLLA & NIMMER ON FREEDOM OF SPEECH 2:12.
See BUCHWALTER ET AL., supra note 20.
See id.
See id.
See Weimar, supra note 1, at 730-31.
See Porter, supra note 18, at 1079-80.

apply the Parcell test, and find that tattooing fails that test.30 These courts do not directly explain
their decision to separate the process of tattooing from the tattoo thereby produced,31 a close
reading of these cases reveals an understanding by the court that the recipient of the tattoo is the
only one who could be communicating through use of the tattoo itself, so the only potentially
expressive conduct available to the tattooist is the process of injecting dye into skin.32 Since these
courts find no intelligible communicative element to this process, they uniformly hold that
tattooing is not protected under the First Amendment and that restrictions on tattooing are subject
only to the lightest scrutiny.33
The Ninth and Eleventh Circuits have recently issued opinions which opt not to follow
this line of reasoning, instead regard both the tattoo and the process of its creation as a
collaborative work of art.34 These courts based their break with the preceding line of cases on
their concerns about the absurd results of the precedent rule35 and the ability of governments to
use restrictions on certain media of expression as a way of indirectly banning protected art
forms.36 Both courts struck down laws which completely banned tattooing in a particular area,
either for being overbroad or for being unable to demonstrate a link between the regulation and
the government's purported interest.37 Neither court found that the regulations under

30 See Dot Com Tattoo, 580 F. Supp. 2d at 659-60; Lemon, 495 F. Supp. at 1254-55; Hornberger, 560 S.E.2d at
423; see also Porter, supra note 18, at 1081.
31 See Porter, supra note 18, at 1081-82.
32 See, e.g., Lemon, 495 F. Supp. at 1254.
33 See, e.g., Hornberger, 560 S.E.2d at 423-24.
34 See Jordan, 621 F.3d at 1062; Chris Morran, Court Says Tattooing is Protected Speech, Mocks City for
Misrepresenting Margaritaville Lyrics, THE CONSUMERIST, Jan. 4, 2016 (citing Buehrle v. City of Key West,
No. 14-15354 (11th Cir. Jan. 4, 2016)).
35 See Jordan, 621 F.3d at 1062 (Under the district courts logic, the First Amendment would not protect the
process of writing most newspaper articles...[n]or would the First Amendment protect painting by
commission...).
36 Morran, supra note 34.
37 See Jordan, 621 F.3d at 1065; Morran, supra note 34.

consideration were content-based.38

III. Analysis
In arguing that their regulations on tattooing were valid, the governments involved in
First Amendment tattooing cases generally justified the regulations with reference to the
potential dangers to public health that tattoos posed.39 The regulations at issue, however, did not
pertain to sanitation, professional licensing, or any other restriction which is facially related to
ensuring that tattooing is done safely. Every case instead involves a complete ban on tattooing in
a particular area, either explicitly or through a failure to grant the permits necessary for a
tattooist to comply with the applicable zoning laws.40 Even negligent tattooing poses a health risk
only to those who directly engage in it, and those risks can be mitigated to complete safety with
commonly-available sterilizing equipment.41 It is thus difficult to see the rationale behind the
enactment of sweeping restrictions on tattooing in so many far-flung districts if they are
motivated solely by fear of the modest danger that tattoos pose to public health.
This rationale is, of course, not the only possible one for imposing a ban on tattooing in a
town or other district. Tattoos have an association with all sorts of countercultural elements
which stretches back centuries, emerging with particular intensity in the latter half of the
Twentieth Century.42 Courts rarely take direct notice of these seedy associations, although they
occasionally appear in their descriptions of a case's facts or a party's arguments.43 The issue in
38 See Jordan, 621 F.3d at 1064; Morran, supra note 34 (listing the elements of intermediate scrutiny as the
elements the court considered, indicating that the court understood the regulation to be content-neutral).
39 See Jordan, 621 F.3d at 1056; Lemon, 495 F. Supp. at 1249; Hornberger, 560 S.E.2d at 422. But see Dot Com
Tattoo, 580 F. Supp. 2d at 660-62 (holding that restrictions were valid based on local zoning interests rather than
public health); Morran, supra note 34 (arguing that restrictions were valid based on adverse impact on
neighborhood's character and fabric).
40 See Jordan, 621 F.3d at 1057; Dot Com Tattoo, 580 F. Supp. 2d at 658; Lemon, 495 F. Supp. at 1250-51;
Hornberger, 560 S.E.2d at 421; Morran, supra note 34.
41 See Lemon, 495 F. Supp. at 1252; Hornberger, 560 S.E.2d at 425 (Waller, J., dissenting).
42 See Weimar, supra note 1, at 721-23; Hornberger, 560 S.E.2d at 425 (Waller, J., dissenting).
43 See Dot Com Tattoo, 580 F. Supp. 2d at 658; Morran, supra note 34.

Dot Com arose because a local city council overruled its zoning board and denied the plaintiff a
special use permit for a tattoo parlor, explaining that it was not the kind of business that the
council wanted in its town.44 Counsel for the City of Key West in Buehrle based a significant
portion of his argument in favor of its tattooing restrictions on a selection of Jimmy Buffett lyrics
which seemed to indicate that drunken tourists would adorn themselves with ill-advised ink,
reinforcing the connection between tattoos and conduct of suspect character.45
A survey of other tattoo-restricting ordinances reveals further suggestions that regulations
on tattooing are motivated at least in part by a desire to avoid the associations with low social
class that often accompany tattoos and their bearers. South Carolina has passed a law banning the
establishment of tattoo parlors within 1000 feet of a school, playground, or church, none of
which are especially vulnerable to the health effects of tattoos but all of which are common
touchstones of innocence which might be especially sensitive to corrupting or countercultural
influences.46 Another part of the same statute requires prospective tattooists to give advance
public notice of their intention to open a tattoo parlor.47 This is a curious requirement whose
purpose is difficult to explain except as a way of giving advance warning to local citizens who
may be scandalized by a tattoo parlor opening in their figurative backyards. The town of
Farmington, Connecticut lists tattoo and/or body piercing studios as a prohibited land use
alongside methadone clinics, pawn shops, private prisons, pool halls, and check cashing
businesses, all of whom share an association with counterculture and/or low social class.48 The
zoning statute lists a number of statutory purposes for these prohibitions, including protecting
44
45
46
47
48

See Dot Com Tattoo, 580 F. Supp. 2d at 658.

See Morran, supra note 34.
See S.C. CODE ANN. 44-34-110(A)(1).
See S.C. CODE ANN. 44-34-110(C).
See FARMINGTON, CONN., ZONING REGULATIONS art 1, 2a.

public health, safety, and welfare.49 Connecticut already has a comprehensive licensing and
professional education regime for tattooists, however, so it is difficult to justify a blanket ban in
Farmington on those grounds.50 More likely is the link between these restrictions and its purpose
in conserving the value of properties, although that in turn might be difficult to describe or
defend without reference to the unsavory connotations that tattoos carry.
The line between a content-based regulation and a content-neutral one is drawn by
reference to the intent of the enacting legislature.51 The use of a tattoo as a medium of expression
brings with it a number of unique associations that cannot be captured by displaying the same
image in a different medium.52 The court in Jordan recognized that permanently emblazoning an
image upon one's skin through a painful procedure can be used to communicate a heightened
commitment to the idea represented by the tattoo, a commitment which would not be adequately
expressed, for example, by wearing a shirt with the same design.53 Tattoos also serve as a symbol
that the wearer is associating himself or herself with all the cultural significance, good or ill, that
tattooing holds as a general art form. Therefore, to the extent that statutes banning tattooing are
intended to prevent the expression of associating oneself with the countercultural elements that
tattoos have represented for decades, they are content-based restrictions on free speech and
should be subject to strict scrutiny.
Although neither the Jordan nor the Buehrle courts applied a strict scrutiny standard to
the statutes at issue before them, this approach is fully compatible with the rationale
underpinning those decisions. In Buehrle the court found that the City of Key West could not
49
50
51
52
53

See FARMINGTON, CONN., ZONING REGULATIONS art 1, 1.

See CONN. GEN. STAT. ANN. 20-266o (West 2014).
See BUCHWALTER ET AL., supra note 20.
See Jordan, 621 F.3d at 1067.
See id.

make even the barest showing of a connection between its ban on tattooing and protecting its
tourism industry, the interest that it claimed to be protecting with its regulation.54 While the court
took this as evidence that the law was not narrowly tailored to serve an important government
interest, it could have found on the same grounds that the law could not be justified with
reference to the claimed interest because there was no connection between the statute and a
threat to local tourism. To be content-neutral a restriction on speech must be justifiable without
reference to the content of that speech. Since the government cannot show that it has any
justification for the restriction at all, the court could have found that the regulation was contentbased and that strict scrutiny was appropriate. In Jordan the court did not analyze the question of
whether the regulation was content-based because the plaintiff opted not to contest the
regulation's neutrality.55 However, the court's holding that the statute at issue left no alternative
modes of expression is based on its finding that tattoos convey a variety of unique content which
cannot be adequately captured in any other way.56 The court could find on that basis that a ban on
tattooing is a ban on the expression of the ideas that can be expressed only through the use of
tattoos and thus inherently disfavors some forms of content.
Understanding tattooing restrictions as content-based also better addresses the concerns
that both courts have with creating backdoors to the suppression of free speech through creative
statutory language that is content-neutral on its face but which has the effect of favoring some
forms of content over others.57 For example, a regulation which banned or heavily curtailed the
use of red paint might not explicitly favor certain ideas over others, might leave room for
alternative means of expressing ideas, and might even be justifiable with reference to a neutral
54
55
56
57

See Morran, supra note 34.

See Jordan, 621 F.3d at 1064.
See id. at 1067.
See Jordan, 621 F.3d at 1061-62; Morran, supra note 34.

government interest, like the desire to protect local property values against the presence of
neighbors with a taste for gaudy red housing facades. But it is not difficult to conceive of
situations where a ban on red paint would make it more difficult to express certain ideas, like an
association with Communism or with the Republican Party, or any painting or sculpture which
requires the depiction of blood. An incidental effect on the expression of ideas in the course of
serving an independent government interest is acceptable under the Geiss standard, but that
standard only applies to conduct which is not pure speech.58 A regulation which is intended to
curtail free speech and which actually does so should be considered content-based, even if it
serves a subordinate government interest and can be partially justified thereby.
One concern with a strict scrutiny approach to tattooing regulations is that such an
approach might invalidate all regulations on tattooing, including those that genuinely address the
public health concerns involved in the practice of tattooing. Strict scrutiny is popularly
understood to be strict in theory but fatal in fact, after all.59 One of the reasons that strict
scrutiny is so often fatal is because few if any other forms of expression carry the kind of
inherent public health risks that tattooing possesses.60 Negligent tattooing has been linked to the
spread of a number of diseases, including at least one outbreak of hepatitis in New York, and so
ensuring that tattooing is done under sanitary conditions by capable personnel likely qualifies as
the type of compelling state interest that can pass muster under strict scrutiny.61 Some health
regulations might need to be changed, such as those which require tattooists to pay a regular
licensing fee62, but as long as the substance of the requirements is not out of line with those
58
59
60
61
62

See U.S. v. Geiss, 391 U.S. 367, 377 (1968).

See SMOLLA, supra note 24.
See Hornberger, 560 S.E.2d at 423.
See Weimar, supra note 1, at 724.
See CONN. GEN. STAT. ANN. 20-266o (West 2014).

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imposed on people who work in other sterile settings those regulations could very well qualify as
narrowly tailored to support a compelling interest as required by strict scrutiny.
Other forms of regulations on tattooing would probably not survive the rigors of strict
scrutiny. The South Carolina statutes requiring mandatory minimum distances away from
schools and churches would almost certainly be invalidated because of the arbitrariness of their
requirements. Even if the state does have a compelling interest in keeping tattoo parlors a certain
distance from these institutions, which is dubious enough on its own, there is no apparent reason
why the tattoo parlor must be 1000 feet away from the nearest playground rather than 800 feet
away, or 200 feet away. The requirement that an aspiring tattooist advertise his or her intentions
for three weeks is similarly arbitrary even if there is a compelling interest in having such advance
public notice, since there is no apparent need for three weeks of advertising rather than two.
The Farmington zoning regulations would very likely fail as well, although for a different
reason. A blanket ban on tattooing is probably not narrowly tailored to a compelling interest in
public health because the Jordan court found that a similar regulation enacted for a similar
purported purpose was overbroad even under intermediate scrutiny.63 However, such a ban might
arguably be the least restrictive means of protecting local property values, since if Farmington
could show that tattoo parlors inevitably drive down the value of nearby property then it may not
be possible to place a tattoo parlor within Farmington without harming the value of at least one
resident's property. It is more likely that a court applying strict scrutiny would hold that
protecting property value is not a compelling state interest at all. If property values go down as
the result of a nearby tattoo parlor then it is likely as a result of their negative cultural
associations, which are inherently related to the content of tattoos protected by the First
63 See Jordan, 621 F.3d at 1065.

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Amendment. One of the foundational principles of First Amendment protection is that

government cannot ban the expression of certain ideas just because they are unpopular or
unseemly.64 Allowing regulation of speech based on threat of lower property values would in
effect reify popular distaste for an idea into an interest that can be used to suppress that idea
wherever it comes into contact with real property. This would create a self-defeating doctrine,
and as such would not be compelling to a court applying strict scrutiny.
IV. Conclusion
Even the courts which have recently discarded older precedent in favor of a more holistic
and sympathetic approach to tattooing have continued to indulge the polite fiction that tattooing
is a specialized-but-ordinary art form, not subject to long-standing taboos and prejudices. That
fiction is not sustainable in the face of sweeping regulations motivated by those prejudices that
are enacted and enforced to this day. Oklahoma only lifted its total ban on tattooing in 2006.65
South Carolina enacted broad, arbitrary restrictions on the location of tattoo parlors in 2004.66
The Arkansas Senate passed a bill prohibiting what is essentially a tattoo without ink in 2013
based on a blatant scaremongering campaign.67 The connotations that tattoos hold are an inherent
part of the content expressed by tattoos and by the practice of making tattoos. If, as the Ninth and
Eleventh Circuits have held, tattooing is a purely expressive activity, the only consistent way to
protect that pure speech against attempts to restrict its unique content is by subjecting those
restrictions to strict scrutiny.

64
65
66
67

See Calvert, supra note 2, at 560.

See Jordan, 621 F.3d at 1065.
See S.C. CODE ANN. 44-34-110.
David Ramsey, Arkansas Lawmaker Tries to Ban Tattoo-Shop Practices, ARKANSAS REPORTER, Mar. 14, 2013.

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