Do Tattoo Shops Have a First Amendment Right To Remain Open During a Pandemic?

The idea is not so far-fetched.


On March 19, the Ohio Department of Health ordered the closure of "hair salons, nail salons, barber shops, tattoo parlors, body piercing locations, and massage therapy locations" as part of the state's efforts to combat the spread of COVID-19. Nearly two months later, Gov. Mike DeWine announced that hair salons and barber shops would be allowed to reopen shortly, so long as they followed various social distancing and public health requirements.

There was no mention of letting tattoo artists get back to work. "We were closed with salons, barbers, tanning salons and the like," the Oxford, Ohio, tattooist Steve Cupp told WLWT5. "And we assumed once they opened, considering the proximity they have to their clients and the proximity that we have to ours, that we would be reopened with them. But we were excluded." The state eventually announced that tattoo shops would finally be allowed to reopen on May 15.

This sort of government action raises some interesting legal questions, especially for the numerous tattoo parlors that remain shuttered in other states. Do tattoo artists have a case to make against coronavirus closure orders? Does the Constitution protect a tattoo shop's right to remain open—at least in some limited fashion—during the pandemic?

The idea is not so far-fetched. Both state and federal courts have recognized tattooing as a constitutionally protected form of free expression. Up until the year 2000, for example, it was a crime in Massachusetts, 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." But in Lanphear v. Commonwealth of Massachusetts, the Massachusetts Superior Court struck down that statewide ban on the grounds that "the act of tattooing is inseparable from the display of the tattoo itself and is expression protected by the First Amendment."

The U.S. Court of Appeals for the 9th Circuit reached the same conclusion in Anderson v. City of Hermosa Beach (2010). At issue was that city's ban on tattoo shops within city limits. "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 9th Circuit panel.

Which brings us back to the idea of a tattoo artist mounting a legal challenge to a coronavirus closure order. In United States v. Carolene Products Co. (1938), the U.S. Supreme Court said that when the courts review a regulation "affecting ordinary commercial transactions…the existence of facts supporting the legislative judgment is to be presumed." In other words, judges were told to be extremely deferential towards the government when it is regulating economic activity.

But Carolene Products did not endorse judicial passivity on all fronts. "More exacting judicial scrutiny," the Court said, would still be appropriate in some cases. For example, judges should not defer to the government by rote in matters involving "a specific prohibition of the Constitution, such as those of the first ten amendments." Lawyers now call this exacting approach "strict scrutiny." In the words of Black's Law Dictionary, for a law or regulation to survive strict scrutiny review, it "should only be as restrictive as is necessary to accomplish a legitimate governmental purpose."

"The business of tattooing," as the 9th Circuit put it, is "fully protected by the First Amendment." Which means that any regulation of a tattoo shop should trigger strict scrutiny review when that regulation lands in court.

A public health order designed to curb the spread of an infectious disease like COVID-19 would seem to pass the "legitimate governmental purpose" prong of the strict scrutiny test. But what about the second prong, which requires the regulation to be the least restrictive means of pursuing that legitimate state end?

Here is where the tattoo shops may have a case. So long as they can operate safely during the coronavirus outbreak—by requiring artists and clients to wear masks and gloves at all times, by routinely cleaning equipment and surfaces, by carefully practicing social distancing, by limiting the number of people allowed inside the shop, etc.—a total shutdown of the business would not seem to qualify as the least restrictive means available for achieving a legitimate government purpose, even amid a pandemic.

Related: "Tattoos vs. the State: Free speech in skin and ink"

NEXT: Why Does Trump Want To Stop People From Voting by Mail?

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  1. Does the Constitution protect a tattoo shop’s right to remain open—at least in some limited fashion—during the pandemic?

    So a tattoo shop has a right to remain open despite what someone wrote on a piece of parchment?

    1. They’re inking someone’s skin. Sounds like freedom of the press and peaceable assembly to me.

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      2. I just want someone to use that language in court. Get everyone arguing whether the constitution protects a pre-existing right or not. After that, the only conclusion is that whether constitution has anything to say about it or not, the government is currently violating that right.

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  2. Naked power grabs that do nothing but harm everyone.

    1. “Expression” and “Assembly” are derived from the exact same damn Amendment. Why is my right to get a tatoo any more compelling than my right to gather at the local pizza joint to discuss what a power-grubbing whore my leaders have become?

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  3. When is the article where we argue for no lockdowns on hookers strippers and illegal aliens.

    1. When ENB writes it.

  4. Don’t be silly, everybody knows free speech only applies when the speech is free but once you start engaging in commerce you have no freedoms whatsoever.

    1. Free Exchange = Slavery!!!


  5. There’s a reasonable argument to be made that everyone has a right to stay open during a pandemic.

    1. That would be my take. It’s called Freedom.

    2. When you imagine the interconnectedness of all business and commerce and consumption, you start to realize that all jobs are essential, except government employees. When the government shuts down due to this or that political grandstanding, and all non-essential bean counters are furloughed, the economy doesn’t collapse. My customers’ customers’ customers’ customers are vitally important to me, an essential worker, because the demand and cash flow come from those businesses and individuals. The hubris of the governors and the media influencers and the slavers, to think that they can command and control the economy, is flabbergasting. Spontaneous order is the rule. Provide the public with information and allow the wisdom of individuals to guide their responses. I have lost count of how many businesses customers have gone tits-up between the trade war and the virus. Broad scope government orders are the dumbest of tools. Soon enough, there won’t be anything to open up. The large, bailed-out conglomerates will gobble up all the assets, and the specialization of smaller enterprises will me lost for a very long time, permanently in some cases. We’re hanging on by our fingernails! There is no ‘undo’ macro for the economic damage wrought.

      Buffalo buffalo Buffalo buffalo.

  6. Yep.
    Just like everyone else.
    If it will be profitable is up to the customers.
    In theory.

    Welcome to the revolution.

  7. I have 110 tattoos? This is pretty stupid. Some tattoos I got, one in my lip are for myself. Some masochists get tattoos for themselves too. People who do hook suspensions might be into the “ritualistic” aspects of things(pain). Tattoos often are not about speech or expression. They are permanent marks on the body. Corporations are not people, tattoos are not free speech. These loose knit definitions are weird.

    What really should have never closed is Strip Clubs.

    I think any tattoo shop willing to harm me (spreading covid19) during the worlds largest pandemic since 1918 should legally and immediately be harmed. You can’t social distance and tattoo. We are not stupid, Jesus does not make babies, god doesn’t make the sun rise and germs are spread through human engagement. The people ignoring this common sense fact could pollute me or murder some one I know. If you kill me or someone I know with covid19 its pollution and you should be willing to die for your actions or be killed unwillingly – either way is fine. Tattoo shops are in my community. Covid19 murdered more people in my community in 2 months than

    1. I have 110 tattoos?

      It depends. Do you have any that you’ve forgotten about?

    2. “…I think any tattoo shop willing to harm me (spreading covid19) during the worlds largest pandemic since 1918 should legally and immediately be harmed…”

      I think cowardly pieces of lefty shit like you should crawl in a hole and stay there.
      It’s YOUR job to look after your health, not mine or anyone esle’s.
      Fuck off and die, slaver

    3. Fuck off, slaver. By the same reasoning, everything should be closed always. You don’t know what “murder” means.

    4. “Covid19 murdered more people in my community in 2 months than”

      Are you a retard?

  8. Funny thing – I have yet to read about ANY state closing their lottery.
    And yet it would be the epitome of non-essential. (to citizens)

    How about an amendment requiring all state lotteries to be the first things closed, and the last thing opened during a declared “emergency”. I bet that would solve a lot of issues.

  9. What the actual fuck? Every business in the country has a right to remain open whether you tie it to the first amendment or not. The government acts by permission at every level, and there’s no “except for viruses” clause in the Bill of Rights. When the fuck did everyone concede the government’s right to do *any* of this shit? Leave aside the fact that as early as February it was obvious that 99% of the fatalities were in elderly people with comorbidities and that there was never any reason for people to shit their pants over it. Even if the mortality rate was 50%, that’s not the government’s fucking business. It’s the business of everyone who makes all the other decisions about his own life every day without government help.

  10. The problem with this virus is that there is a long period between infection and showing symptoms and it spreads quickly. While the elderly are more at risk, young, healthy athletic people have because serious ill and/ or died. So while I think for most disease outbreak situations you can educate the public about the dangers and risk mitigation and a shut down would not be necessary, a big problem with this virus and people don’t know what they don’t know. Governments are making mistakes either being too strict or too lenient because they just have no idea what to do.

    However, there does need to be some collective action. So discussion as social groups that we deal with it. Even if you determine that Federal or State government isn’t the best mechanism, this is a situation where considering the group also helps save yourself and how to bring about coordinated action is key.

    All people with businesses want to work and make money. However, I assume no one wants to risk their own lives, their employees or their customers’ lives. It is a hard balance.

    1. Not really hard as a matter of policy:
      Let people decide the amount of risk each one is willing to take.
      If you’re some cowardly POS like LobsterClawz up there, crawl in a hole and stay there until hell freezes over.
      Me? Nope. If the restaurant door’s open, I’ll have a seat at the bar and order lunch.
      Don’t tell me what to do to keep you healthy; your health is YOUR responsibility.

    2. “However, I assume no one wants to risk their own lives, their employees or their customers’ lives. It is a hard balance.”

      Not a hard balance at al. We know, up to now, this Wuhan virus preys on a specific demographic (the elderly and those with secondary medical conditions). The rest of us do risk getting it but it’s not necessarily a case of risking our lives. This is where people lose me.

      It should be left to people to make that decision. And this bull shit that if someone chooses to go out and work are a danger while framing the debate in a way that makes asymptomatic people dangerous is in of itself dangerous and irrational.

      That’s the only balance you should be considering.

      If you choose to be afraid, stay home. If someone chooses to not stay home don’t try and paint them as irresponsible because that’s the very definition of irrational.

  11. Personally, I think tattoos are a sign of poor impulse control.

    However, quarantines have always been about isolating sick people, so they don’t infect everyone else. Of course asymptomatic spread is worrying, but the idea that we should isolate everyone from everyone else forever is pretty unworkable.
    We have had disasters before, of course, and economic crashes from various causes. But I really think our present situation is completely new. Millions of people with job skills and a desire to work, and customers with the desire for those products and the means to purchase them, but have been told that they must not do that work, on the off chance that they might contract the disease and spread it. So they sit at home, not able to pay their bills, and wonder what it is going to be like when they get kicked out onto the street.
    Of course some of those people live in places where Covid is running rampant. On the other hand, lots of people live in places where there are few or no infections.
    And it is also clear that some people are using Covid as an excuse to torment people they disagree with.

    1. “And it is also clear that some people are using Covid as an excuse to torment people they disagree with”


      1. I do not wear a mask.
        I do not wear a ribbon.
        Deal with it.

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