A New York-based tattoo company and two South Carolina residents filed a lawsuit last month arguing that two state laws — one restricting where tattoo shops can operate and another criminalizing tattoo placement on a person’s head, face or neck — infringe on the First Amendment right to free expression.
Tiny Zaps, which describes its work as “a modern take on tattooing,” is attempting to host a pop-up shop at a boutique hotel in the Historic District in downtown Charleston, home to many of the city’s most famous landmarks. But, after initiating paperwork and training a South Carolina-based artist to partner in the pop-up, Tiny Zaps “learned of two significant legal hurdles to its Charleston plans,” according to the lawsuit, filed July 17 in the U.S. District Court for the District of South Carolina.
One of the laws at issue prohibits a tattoo facility from operating within “1,000 feet of a church, school, or playground,” according to the complaint. Charleston is known as “the Holy City” due to its historic religious tolerance and various steeples dotting its skyline. The suit argues that it’s “unsurprising” that the hotel in which Tiny Zaps hopes to hold its pop-up is in close proximity to at least four churches and at least one school.
The other law, which restricts tattoo placement above a person’s shoulders, “runs counter to Tiny Zaps’s artistic vision of tattooing as a customer-driven experience that allows people to express themselves,” and restricts two prospective customers, Joshua and Stephanie McDonald, from “obtaining tattoos they would otherwise seek, severely restricting an art form that they value highly,” the suit argues.
“The First Amendment does not permit South Carolina to treat tattooing as a disfavored form of expression,” the filing states. “Whether artwork appears on canvas, paper, or skin, the Constitution protects both the artist’s right to create it and the customer’s right to receive it.”
Headshot of attorney Dean McGee, courtesy of the Pacific Legal Foundation
The complaint was filed by the Pacific Legal Foundation, a public interest law firm, at no cost to the plaintiffs. The state has yet to formally respond to the complaint.
In an interview, First Amendment Watch spoke with Pacific Legal Foundation Attorney Dean McGee about the case. McGee argued that tattooing is a “uniquely bold version of speech,” discussed how he plans to address the patchwork of decisions about First Amendment protections for tattooing, and emphasizes that, in order for it to succeed, the state must prove its laws are narrowly tailored.
Watch the full interview below:
TRANSCRIPT:
Editor’s note: This interview has been edited for length and clarity.
Susanna Granieri (00:00): Today, I’m speaking with Dean McGee, the attorney from the Pacific Legal Foundation representing New York-based tattoo company Tiny Zaps, and two South Carolina residents in a recent lawsuit filed against the South Carolina Public Health Director and State Attorney General Alan Wilson. The lawsuit alleges that two South Carolina laws—one restricting where tattoo shops can operate, and another that criminalizes tattoo placement on a person’s head, face, or neck— infringe on the First Amendment right to free expression. I was hoping that you could walk us through the First Amendment arguments in this case and how these two South Carolina laws allegedly infringe on free expression.
Dean McGee (00:35): Sure, I’d be happy to, and I’ll start just giving a little background on how my clients came across this. Tiny Zaps is a New York City-based tattoo shop. They have one in Brooklyn, one in Manhattan, but they operate pop-ups around the country. And they were pitched on an opportunity in Charleston, a relatively lucrative, beautiful city that has the clientele that they seek to work with. They do their due diligence, and they are shocked to come across these two statewide prohibitions. In Charleston, in particular, which has a nickname, the “Holy City,” has more than 400 houses of worship, and four of them were within 1,000 feet of where their pop-up was going to be, and so that shut their opportunity down right there. This was coupled with the fact that they do a lot of above-the-shoulder tattoos, typically small behind-the-ear tattoos, which led them to us eventually, and to this challenge. And on the question of how tattooing is protected by the First Amendment, I think instinctively people understand that tattooing is speech, and even a uniquely bold version of speech. You are committing yourself to a permanent form of artwork or a permanent statement, whether it’s political or not. It is a personal and permanent expression on your body, and I think that’s almost more true with something above the shoulders that you can’t hide during an interview, or when you’re at work, or whatever it may be. So there’s an instinctual understanding of that expression. There are some cultures where it even has religious significance. Both the Ninth Circuit Court of Appeals and the Eleventh Circuit Court of Appeals have recognized that not just the tattoo itself and the person getting the tattoo, but the business of tattooing is protected expression. I don’t want to go off on too much of a tangent, but that in and of itself is its own interesting development in First Amendment law, where the Supreme Court is more and more affirming the idea that just because you’re engaged in a professional context of doing something, if there’s an expressive speech element to that to that work, it’s still protected speech, even though you’re getting paid for it. And I think people understand that with things like artists generally, and we view tattooing as just another form of artwork.
Granieri (03:13): Historically, a standard like this is applied to adult entertainment businesses, like strip clubs, for example. How does analogizing tattoo studios to adult entertainment businesses, rather than standard commercial art studios or pop-ups, violate the First Amendment? Are there reasonable time, place, and manner restrictions at play here?
McGee (03:33): It is very possible the state could raise that as an analogy in this case as a defense because some of those restrictions have been upheld. But my read of those cases is that, even then, the state still had a burden to show that there was obscenity or something that could be considered obscenity. Which of course is one of the rare exceptions to generally accepted First Amendment protections, or alternatively, that there would be some genuine harm to a neighborhood that the state would have to prove. What’s interesting in the Ninth and Eleventh Circuit cases — even though the tattooing bans at issue there were viewed by the courts as viewpoint neutral, even content neutral, because the act of tattooing was protected speech — the burden still shifted on the government to show that the laws were narrowly tailored to achieve a compelling government interest. They just couldn’t do it. In the Eleventh Circuit case, in a Florida city, the city cited Jimmy Buffett lyrics about regretting a tattoo as their evidence, and the court properly said that’s not good enough.
Granieri (05:00): You’re bringing up the separation and patchwork of decisions from different federal circuit courts. I am sure that there have also been trial and district court-level decisions that are all differing in how they handle restrictive criminalization of types of pop-up shops for tattooing in general, just discussion around protected expression as this being an art form. How do you plan to navigate that patchwork to center your argument in South Carolina?
McGee (05:33): We think the Ninth and Eleventh Circuit Courts of Appeals really have set out the proper path. I mean, we may argue there’s a stronger argument in our case: This is one not narrowly tailored because it’s statewide. Those restrictions were subject to specific municipalities that tried to restrict or ban tattooing. These statewide laws, by their very nature, I don’t think could be considered narrowly tailored. We do have to address that there’s a patchwork of cases. This includes the South Carolina Supreme Court, which held in 2002 — when tattooing was illegal and actually criminal throughout the state — that tattooing, because it involved human skin, was not subject to First Amendment protection and could be regulated under more of a rational basis standard. We are going to have to address that, but the weight of authority is moving in the right direction for us, and we want to contribute to that momentum in this case.
Granieri (06:43): What might be some limitations on tattooing that might satisfy First Amendment concerns? I mean, like limitations on the age of customers, for example. How does that play into your arguments in the case here?
McGee (06:54): Our clients have no interest in challenging anything that we view as reasonably connected to protecting the health and safety of their customers and of South Carolina citizens more generally, and that really goes back to that burden-shifting analysis I talked about. The state has to prove these are narrowly tailored to meet some kind of compelling or at least seriously important government interest. Of course, making sure that tattoo artists are trained in and licensed in a manner to prevent infection, for example, is a standard the government’s going to be able to meet. So that’s the line we’re drawing. It’s the line that courts really have to draw, too. We’re very comfortable that these two laws we’re challenging fall far from the narrowly tailored, significant government interest line that the state would have to prove.
Granieri (07:53): We’re talking about Tiny Zaps, the New York-based company, but we’re also talking about two prospective customers, Joshua and Stephanie McDonald, who are seeking tattoos to be done by Tiny Zaps. Why did they decide to get involved in this case, and is there any separation between what the First Amendment right to free expression is for them versus what it might look like for Tiny Zaps as a company? Is there any distinction to be made there?
McGee (08:20): I don’t think there’s ultimately a distinction in terms of the types of protections afforded by the First Amendment. It’s just two sides of the coin. It’s the person putting the expression on their body permanently, which we talked about, and then it’s the artist creating the image for the customer. Both are protected. The McDonalds heard about this potential case through an attorney at our firm, and they were very interested in asserting their rights because they recognized that these laws, as tattoo enthusiasts, people who like tattoos, have restricted their ability to get the tattoos they want when they want them.
Granieri (09:02): What is the next step for the case? Are they involved in providing any background into their want and their need in addition to the complaint, and why they are seeking these tattoos from Tiny Zaps specifically? Can there be an argument made by the state that they could go to a different place, and how might you navigate that?
McGee (09:23): Well, one thing I do want to clarify is that the McDonald’s have only joined in the cause of action restricting the above-the-shoulder tattoos because that unambiguously restricts them and applies to them, whether they want to go to Tiny Zaps or anywhere else for the tattoo. We have Tiny Zaps bringing two causes of action against both restrictions we’ve talked about, and the McDonalds just joining the above-the-shoulder restriction challenge.
Granieri (09:56): I have one more question for you, and it’s really just about what this case looks like moving forward. What are the timelines? What are the expectations? And how long do you think it’ll be? Is TinyZaps able to operate while this is ongoing, or is their pop-up being held off until a court makes a decision?
McGee (10:18): The pop-up is restricted. It won’t be able to operate until we get a favorable decision. At this point, we are in the most preliminary stage of this case, where we have filed a complaint and served the state. I did have a conversation with lawyers for the state recently. We’re in the process of negotiating their time to respond to the complaint. I don’t know whether they’re going to move to dismiss, or answer, or take any other action that I don’t want to speculate about. But I anticipate that by early September the state will have responded. And frankly, I’m really curious to see what their arguments are. The state has such a long history of suppressing tattoos in any form they can. So I’m curious to see what arguments they make.
Granieri (11:14):
Is there anything about the First Amendment arguments here, or just the general complaint itself, that I didn’t touch upon that you’d like to flag for anybody that’s looking into the case or reading about it?
McGee (11:26): I think just to reemphasize that our view, and increasingly the view of the Supreme Court and lower courts, is that just because something is being done in a professional context doesn’t mean that the First Amendment is excluded. Our firm has brought cases, for example, on behalf of doctors and patients who want to discuss severe cancer diagnoses with specialists, for example, but are restricted or prohibited from doing so because of telehealth restrictions. We view all of these as in the same universe of making sure speech is protected in that professional context.
Granieri (12:07): Dean, thank you. I appreciate you taking the time to chat with me today and to tell us more about the case. And we look forward to seeing how it plays out moving forward.
McGee (12:16): My pleasure. Thank you.