Tattoos and the First Amendment - Art Should Be Protected as Art: The South Carolina Supreme Court Upholds the State's Ban on Tattooing Note 55 South Carolina Law Review 2003-2004

55 S. C. L. Rev. 231 (2003-2004)
Tattoos and the First Amendment - Art Should Be Protected as Art: The South Carolina Supreme Court Upholds the State's Ban on Tattooing

handle is hein.journals/sclr55 and id is 253 raw text is: TATTOOS AND THE FIRST AMENDMENT-ART
SHOULD BE PROTECTED AS ART: THE SOUTH
CAROLINA SUPREME COURT UPHOLDS THE
STATE'S BAN ON TATTOOING
I. INTRODUCTION
In 1999, a tattoo artist in Florence, South Carolina, gave a person a tattoo
on the evening news. The image that he created was a creative adaptation of
an ancient tribal tattoo that signifies the onset of adulthood, and the event was
filmed as a portion of a three-part series on the art of tattooing.' After the
segment aired, the artist, Ron White, was arrested and subsequently convicted
for the crime of tattooing.2 He was sentenced to one year in prison and given
a two thousand five hundred dollar fine, which was suspended to five years
probation and a five hundred dollar fine plus costs.3 In the thirty-year history
of South Carolina's ban on tattooing, this is believed to be the only arrest.4
White challenged the statute on First Amendment grounds and lost. He
appealed the decision to the Supreme Court of South Carolina, which affirmed
the trial court's decision. Relying primarily on flag burning and eminent
domain cases, the Supreme Court of South Carolina concluded that the art of
tattooing is not entitled to First Amendment protection, that the state's interest
in health and safety justifies the law, and that White failed to meet his burden
of proof to show that the law is unreasonable.5 The United States Supreme
Court subsequently denied certiorari.6
An outright ban on an entire art form in a free society such as ours is
inexplicable. At the heart of the First Amendment lies the principle that each
person should decide for himself or herself the ideas and beliefs deserving of
expression, consideration, and adherence. Our political system and cultural life
rest upon this ideal.7 The Constitution gives us the freedom to form, test, and
express our own aesthetic and moral judgments about art, andthesejudgments
are for the individual to make, not for the Government to decree, even with the
mandate or approval of a majority.' This freedom under the First Amendment
1. Petition for Writ of Certiorari at 5, White v. South Carolina, 537 U.S. 825 (2002) (No.
01-1859).
2. Id. at 5-6.
3. Id. at 6.
4. Id.
5. State v. White, 348 S.C. 532, 539, 560 S.E.2d 420, 423-24 (2002).
6. White v. South Carolina, 537 U.S. 825 (2002).
7. Turner Broad. Sys., Inc. v. Fed. Communications Comm'n, 512 U.S. 622, 641 (1994).
8. United States v. Playboy Entm't Group, Inc., 529 U.S. 803, 818 (2000).

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