Tattoos vs. the State

Free speech in skin and ink


Joanna Andreasson/Julian Dufort 2016

Tattoo artists Tom and Elizabeth Preston jumped through every regulatory hoop that the city of Tempe, Arizona, placed in their way. The couple filed the necessary paperwork for opening a tattoo parlor on the north side of town, paid the necessary fees, and obtained the necessary permits before breaking proverbial ground on a studio called Body Accents. But then, after the Prestons had spent more than $30,000 on renovations, permits, and related costs, Tempe abruptly changed its tune. Their original operating permit was revoked, the Prestons were told, because the proposed tattoo shop might attract an unsavory clientele. The message was clear: Take your inky business elsewhere.

But the Prestons had a better idea. They joined forces with the lawyers at the Goldwater Institute, a free market think tank in Phoenix, and filed suit against the city for abusing its regulatory authority and violating their rights. In 2009 Maricopa County Superior Court Judge Robert H. Oberbillig ruled in their favor. The city's actions were arbitrary and capricious, Oberbillig declared, and the Prestons' original permit must be reinstated. One year later, Tempe dropped its appeal of the decision and settled the case.

"Clearly, we lost money because we couldn't open the studio three years ago," Elizabeth Preston observed at the time. But at least the pair were finally able to get on with the business of earning a living. "This lifts such a weight off of our shoulders."

Preston v. Hallman was not the first time that the skin-and-ink trade came to grips with the regulatory state, and it surely won't be the last. Over the past half-century, tattoo artists have been subjected to all manner of overreaching, ill-fitting, and just plain nonsensical government controls. They've been hassled by clueless health departments, shut down by moralizing zoning boards, and outlawed entirely by busybody city councils and state legislatures. But tattoo artists can be a prickly bunch, and increasingly they're opting to fight back. In recent years tattooists around the country have launched a series of civil liberties lawsuits designed to put the government's regulatory malfeasance on trial. And while the ink-masters aren't winning every case, their legal attacks are finally starting to turn the tide.

'A Barbaric Survival'
The art of tattooing has been around for millennia, but the modern tattoo industry effectively got its start on December 8, 1891, when a New York City tattooist named Samuel F. O'Reilly received a patent for the electric tattoo machine. Based on the design for Thomas Edison's autographic printer, which was essentially a motorized engraving tool, O'Reilly's invention sped up the process of tattooing while vastly improving the quality of the final product. Prior to his innovation, tattoos were done by hand, usually with a set of needles affixed to a wooden handle. Even for the most skilled practitioners, it was slow-going work. During the Spanish-American War of 1898, by contrast, O'Reilly reportedly inked upwards of 130 naval reservists in a single day from his small shop at 11 Chatham Square, located at the southern end of New York's famous Bowery.

O'Reilly revolutionized the business in other ways as well. As the journalist Albert Parry remarked in his 1933 book Tattoo: Secrets of a Strange Art as Practised among the Natives of the United States, the New Yorker "expanded the choice of materials till it included such old and new stuff as powdered charcoal, finely powdered brick-dust, coal-dust, lamp black, Prussian blue, washing blue, gunpowder, cinnabar, ordinary writing ink, China ink, India ink, and other vegetable inks." O'Reilly dubbed himself "Professor," and took on several apprentices over the years, including future tattoo legend Charlie Wagner, who would go on to work the Bowery until the early 1950s. Today's tattoo artists and enthusiasts remain in O'Reilly's debt.

Perhaps unsurprisingly, the same city that witnessed the birth of modern tattooing also inaugurated one of the first massive crackdowns on the practice. That effort culminated in 1961, when New York City declared it "unlawful for any person to tattoo a human being," a prohibition that remained on the books for nearly four decades. Gotham finally relegalized the tattoo trade in 1997.

New York's tattoo ban was a classic case of regulators using a bogus public-health pretext to hound an unpopular activity out of existence. Blaming tattooing—falsely—for a minor outbreak of Hepatitis B, city health officials went on the attack, declaring that "from a public health point of view" the tattoo industry was "not regulatable." Only a total ban would save the citizenry, the government claimed.

Fred Grossman, a tattooist who worked out of a shop in Coney Island, took a different view. He brought suit, charging the city with using its regulatory powers for illegitimate ends. But when his case finally reached the courtroom, Grossman hit a brick wall of judicial indifference.

According to state appellate Judge Aron Steuer, "the decoration, so-called, of the human body by tattoo designs is, in our culture, a barbaric survival, often associated with a morbid or abnormal personality." Tattooists found no refuge in Steuer's courtroom.

Grossman next appealed to the state's highest court, but it was equally dismissive. "In its wisdom, the board in the case before us decided that the prohibition of lay tattooing was essential for the protection of the public health," the court ruled in Grossman v. Baumgartner (1966). Because "the police power is exceedingly broad…the courts will not substitute their judgment of a public health problem for that of eminently qualified physicians in the field of public health."

As an authority for that deferential stance, New York's high court cited the U.S. Supreme Court's 1938 opinion in the landmark New Deal case United States v. Carolene Products Co. In that far-reaching decision, written by Justice Harlan Fiske Stone, the Supreme Court held that when it came to "regulatory legislation affecting ordinary commercial transactions…the existence of facts supporting the legislative judgment is to be presumed." In other words, in all constitutional disputes between the government and the businesses it regulates, the scales of justice must be tipped overwhelmingly in favor of the regulators. Needless to say, such sweeping judicial deference spelled doom for New York City's beleaguered tattoo artists, who were now transformed from law-abiding entrepreneurs to outlaws plying their trade in the shadows.

'Tattooing Is an Art Form'
Carolene Products effectively ended the idea of tattooists challenging regulations from their position as entrepreneurs. But that same decision also planted the seeds for a future counterattack. "More exacting judicial scrutiny," the Carolene Products Court explained in a footnote, would still be appropriate in other types of cases. For example, judges should not automatically defer to the government in cases involving "a specific prohibition of the Constitution, such as those of the first ten amendments."

The implication of that footnote did not go unnoticed. What if tattooists tried fighting government regulation from their position as artists engaged in the venerable act of free expression, as protected by the First Amendment?

In 2000, an award-winning tattoo artist named Stephen Lanphear joined forces with the American Civil Liberties Union and proceeded to pose that very question. Lanphear filed suit against the state of Massachusetts, which had declared it a crime, punishable by up to one year in prison, for any person except a doctor to mark "the body of any person by means of tattooing."

"Tattooing is an art form," Lanphear argued in his lawsuit. And "the acts of creating and wearing tattoo art are forms of expression protected by the First Amendment to the United States Constitution." State Superior Court Judge Barbara J. Rouse soon agreed. "The act of tattooing is inseparable from the display of the tattoo itself and is expression protected by the First Amendment," Rouse held in Lanphear v. Commonwealth of Massachusetts. "Any regulation of the tattooing process must, therefore, comply with constitutional requirements." The Bay State's tattoo ban was struck from the books.

Six years later, a California tattooist named Johnny Anderson took the fight to federal court, filing a First Amendment challenge against Hermosa Beach's prohibition on the operation of tattoo shops within city limits. "The tattoo designs that are applied by me are individual and unique creative works of visual art," Anderson maintained; therefore, he argued, they deserve full constitutional protection.

After losing at federal district court, Anderson went on to secure a landmark 2010 victory at federal appellate court, the highest level of the federal judiciary short of the U.S. Supreme Court. "The tattoo itself, the process of tattooing, and the business of tattooing are forms of pure expression fully protected by the First Amendment," declared a unanimous three-judge panel of the U.S. Court of Appeals for the 9th Circuit. It was the tattoo trade's greatest victory to date against the regulatory state.

'Sheltered by the First Amendment'
The 9th Circuit's decision in Anderson v. City of Hermosa Beach reverberated in courtrooms far and wide. Two years later, for example, in a decision that repeatedly cited Anderson, the Arizona Supreme Court ruled in favor of tattooists Ryan and Laetitia Coleman in their fight against the Mesa City Council, which had denied them a permit on the grounds that their proposed tattoo shop might increase crime and lower property values.

"We conclude that the approach adopted in Anderson is most consistent with First Amendment case law and the free speech protections under Arizona's Constitution," the Arizona Supreme Court ruled in Coleman v. City of Mesa. "Anderson starts with the proposition that a tattoo itself is pure speech. This seems incontrovertible." The Colemans' tattoo shop was soon open for business.

The year 2016 brought even better news for the tattoo world. On January 6 a Florida tattooist named Brad Buehrle convinced the U.S. Court of Appeals for the 11th Circuit to overrule Key West's tattoo ban, opening the way for Buehrle to open a tattoo shop in the city's historic district.

City officials had opposed Buehrle's enterprise on the grounds that his business would mar Key West's "character and fabric" and thereby "impact tourism." The city also maintained that it had a legitimate interest in preventing drunken tourists from getting marked for life.

The 11th Circuit thought otherwise. "The act of tattooing is sheltered by the First Amendment," the court observed. "The right to display a tattoo loses meaning if the government can freely restrict the right to obtain a tattoo in the first place."

The 11th Circuit was particularly unimpressed by the city's flimsy attempt to frame its ban as a proper exercise of government power. "The City conducted no investigation and made no findings," the 11th Circuit observed. "It failed to muster even anecdotal evidence supporting its claims. The closest the City came to presenting evidence on the impact on tourism was a passing reference to a few lines of a Jimmy Buffett song. And we are unsure whether even that reference fully supports its position." It was not the regulatory state's finest day in court.

Modern American tattooing has come a long way from its humble origins on the Bowery. No longer confined to the bodies of sailors or sideshow freaks, tattoos have entered the cultural mainstream, becoming a familiar sight in the worlds of fashion, pro sports, pop music, and Hollywood. And between the 9th Circuit and the 11th Circuit, seven states are now governed by judicial precedent holding the act of tattooing to be fully protected by the First Amendment. Judges in other jurisdictions can't help but take notice of that.

Tattoo artists can't expect to win every case. But the odds against them don't seem quite so long anymore.

NEXT: Libertarian Party: Can It Take the Ball and Run?

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  1. So why isn’t the ACLU, an organization purportedly dedicated to liberty, attacking Carolene Products itself. It tilts the liberty versus government power balance too far to the government side. It encourages crony capitalism, which benefits the powerful and the politically connected. By granting the legislature a free hand to do whatever it wants in all but a narrow category of cases, Carolene Products encourages vested interest of all sorts to influence politicians with political contributions, something the political left purports to despise. And finally, as 11th circuit noted in the Buehrle case, Government need not worry about restricting expression if government can “dam the process further upstream” by cutting off the economic wherewithal to create expression in the first place.

    Ha ha ha. Need I really ask?

    ACLU = Arbitrarily Chosen Liberties Union.

    1. So true.

    2. The tattoo artists just need to start tattooing only gay wedding cakes, then they ACLU will get on board with the fight.

      1. And anyone who gets a tattoo that is NOT of a gay wedding cake is a racist, sexist, bigot monster.

    3. I wonder how they’d feel about a tattoo of a gun.

    4. Carolene Products elevates the CLUs, making their concerns more important than others’.

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    6. …maybe the ACLU considers that IT is among the powerful and politically connected. Therefore, the decisions that give more power to the state gives more power to them.

      As we all know, one of the things that a prog most craves is power over others.

  2. It’s just about being shaken down by the local mafia and being told to pay their protection fees. It’s that and nothing more.

    1. “This is my neighborhood. You and your friends should show me some respect. You should let me wet my beak a little.” —Councilman Fanucci

      1. *takes out hammer, smashes beak*

  3. $89 an hour! Seriously I don’t know why more people haven’t tried this, I work two shifts, 2 hours in the day and 2 in the evening?And i get surly a chek of $1260……0 whats awesome is Im working from home so I get more time with my kids.
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  4. I once pinged Uber for a ride to a tattoo parlor and bet the driver a nickle bag the Broncos would win the Superbowl. The rush of freedom damn near killed me.

    1. Jersey the Hutt frowns on your illicit activity.

    2. I completely disapprove of betting on the Broncos

    3. Only way that’d be better is if you were picked up from a gun range/firework stand.

      1. Hey, how was the Molson?

  5. Preston v. Hallman

    United States v. Carolene Products Co.

    Lanphear v. Commonwealth of Massachusetts.

    Grossman v. Baumgartner


  6. Ah, a constitutional right to make decisions with lifelong implications.

    Too bad there’s no constitutional right to enter into a lifelong marriage.

      1. I was trying to find the link, but there was a case from the 1970s (naturally) when a woman got married when the law didn’t allow an adulterous spouse to remarry. The woman’s husband committed adultery, and then claimed the right to remarry under New York’s divorce “reform” law. The state’s highest court sided with the husband, saying that no matter what he promised under the old law – till death do us part and all that rot – his wife couldn’t hold him to that promise so long as the state legislature later allowed him to remarry.

        In short, the woman had no constitutional right to enter into a lifelong marriage – she had no rights which the legislature was bound to respect.

        That goes double for marriages entered into today – any promise of lifelong marriage is unenforceable.

        (The issue would only come up, I think, if one party to the marriage objected to the other party remarrying. If both spouses are cool with it, then that would be a different question, I suppose)

        1. Bitch can’t force him to stay married, even if he did commit adultery.

    1. Are you saying that it’s too bad that divorce is legal?

      1. That is what that looks like.

        1. I would settle for a regime where the couple is *permitted* to enter into a binding lifelong marriage, dissolvable only by mutual consent.

          “Covenant marriage” is a step in that direction.

          That way, the old “marriage lite” option would still be open. You could say, “no, honey, I don’t want a covenant marriage, let’s get one of those trial marriages instead.”

          1. I mean, come on, this is the age of infinite self-definition, when you can make marriage just about anything you want it to mean – two dudes, two girls, maybe even three dudes and two girls.

            But you *can’t* make it mean ’til death us do part. Not even if both spouses insist. It won’t be enforceable.

          2. What if the Pope says your marriage to your inconveniently barren wife is null and void on grounds of consanguinity?

            1. You might have some luck with the current Pope, with his wink-and-nudge policy of letting liberal bishops and priests accommodate divorced persons.

              1. Yes, I know what you’re alluding to.

          3. That is . . . just over the line of allowing people to enter into binding, lifelong, forced servitude contracts.

            In any case – anyone can enter into either of those *right now*, its just that the state won’t enforce the contract, because it violates other basic human rights.

            Heck, even with other types of contract enforcement, government knows you can’t get blood out of a turnip – its why we don’t have debtor’s prisons and indentured servitude anymore.

            1. With other types of contract enforcement, someone who violates a contract has to at least pay damages.

              But in the marital context, even with the liberal divorce laws on the books, the progs *still* want to get rid of the equivalent of breach of contract suits – criminal conversation, alienation of affection – snarkily and condescendingly calling them “heartbalm actions.”

              1. The problem is that the states went from requiring statutory causes for divorce to no-fault divorce w/o stopping anywhere on the way to make marriages more like other contracts.

                Old way: You can’t break up unless you meet our criteria, even if you both want to. As Woody Allen said, “The Lord said thou shalt not commit adultery, but the state of NY said, ya gotta.”

                New way: Either of you can unilaterally get a divorce regardless of what the other wants, and the settlement won’t reflect who wanted out of the marriage.

                New, new way: Marriage? It’s just any coupling, regardless of what the dictionary or custom says.

                1. Its exactly the same way as any other partnership.

                  You want out of your law firm, accountancy, medical practice? You get to leave, the other partners buy you out or you walk with your share of the communal assets.

                  No difference at all because, at its core, secular marriage is about an *economic* partnership and managing shared assets for group gain.

              2. There are plenty of contracts that the state will no enforce – marriage is hardly unique among them.

                1. The state will enforce the *secular* marriage contract – that one-size-fits-all document that Christians have for a couple centuries worked hard to ensure was the only permissable one.

                2. The *religious* marriage contract is between you, the church, and God. You’ve taken the church as a binding arbitrator in this contract – not the state. And if the church is incapable of enforcing its edicts . . .

                3. You can still elect to have a covenant marriage through your church (if your church, as a free organization, agrees to do so) – and one of the major ways that the Catholic church enforces its edicts is by refusing to offer marriage to those who’ve not gotten the church’s permission to divorce. As far as the See is concerned, no matter what the state says, you’ve married until the church says otherwise. And that comes with the backing of celestial penalties for non-compliance which, if you believe in that sort of thing (and I would assume that you do or otherwise . . . why?) are far worse than anything that can be levied by any secular court that has ever existed.

                If you’re getting a convenant marriage its because you believe that your religion demands it – so given that God enforces his edicts (if only posthumously) with no opt-out, why would you *need* the state to penalize anyone?

      2. Divorce saved my life.

        1. Was the divorce over your wife’s objection? That’s the specific situation I was discussing above.

          1. Also, if you’re talking about permission to live apart, without the obligation of support, even the most reactionary Catholic would say that can be done in appropriate circumstances.

            Indeed, that kind of divorce – divorce from bread and board – is not only recognized by the Church, but the Council of Trent denounced, as a heretic, anyone who opposed this kind of divorce.

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  8. Wonder if Trump will try and make any political hay from this given he and Bill are friends.…..y-epstein/

    1. Some people are willing slaves, JB. The fact that their Emperor/Empress God-King gets away with that shit just makes them love them harder… gives them a subconcious, sick thrill.

        1. No. Cucks are open about their fetishes.

    2. They’re probably just poor anyways.

    3. Considering that Trump is also friends with Epstein, I doubt it.

  9. “the Prestons were told, because the proposed tattoo shop might attract an unsavory clientele”

    WTF? Is it 1954 in Tempe ? I can’t speak for the bedroom communities of Phoenix, AZ, but where ilive, your typical tattoo parlour now attracts soccer moms, English lit majors, nurses, various twee artists and organic urban farming types. The days of the tattoo being the exclusive realm of former prisoners and sailors is long over.

    Get over yourself, Tempe.

    1. I guess in Tempe, every tattoo artist is a guy named O’Brien operating out of the Bowery, and every client is a drunken sailor.

      1. They come all the way from San Diego!

    2. And it’s because of whom it now attracts that it’s legal. Like cannabis, though that took a while. You want cocaine legal? Better get soccer moms, English lit majors, etc. to take it up.

    3. Tattoos on people are like graffiti on buildings: They are a sign that you are in a bad neighborhood.

      Just because people are soccer moms, English lit majors, nurses, various twee artists and organic urban farming types, doesn’t mean that they can’t be crappy and tasteless.

  10. ‘Tattooing Is an Art Form’

    Unfortunately far too many people have very poor taste in art. Also art trends change over time, what’s awesome today will very likely look as cool as that Nehru jacket your grandfather wore in the 1960s when he was attempting to make his fashion statement. Fortunately for him that jacket ended up in a landfill after a couple of years. That tattoo? Well, good luck at the Dermatologist.

    1. Thinking of aesthetics, wait a few years until the 20 year old getting her whole arm tattooed sprouts a pair of bingo wings.

  11. “New York City declared it “unlawful for any person to tattoo a human being”

    Fun fact. Pinball machines were also illegal in NY until the 70’s. It is hard to find a private consensual activity that NY voters and politicians do not feel is their business. “Democracy” is the free pass your conscience gives you to screw over other people.

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    1. Their tattoos are a turnoff.

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  14. No longer confined to the bodies of sailors or sideshow freaks, tattoos have entered the cultural mainstream, becoming a familiar sight in the worlds of fashion, pro sports, pop music, and Hollywood.

    See, that’s the real reason bans have been overturned. Asserted rights are put on the scales vs. societal acceptance. Note that the NYC ban was repealed before the court cases brought up.

    It’s like with marijuana & a bunch of other things. Liberties will never be held to be absolute. It’ll always be a matter of reducing the stigma of whatever it is to a degree that the libertarian force overcomes it.

  15. tattoo artists can be a prickly bunch

    I see what you did there.

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  19. Well, a tattoo parlor -would- attract an unsavory clientele.

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