Court turns its back on tattoo case

By MICHAEL KIRKLAND, UPI Legal Affairs Correspondent   |   Oct. 7, 2002 at 11:49 AM   |   0 comments

WASHINGTON, Oct. 7 (UPI) -- The U.S. Supreme Court Monday passed up the chance to hear argument on whether the 8,000-year-old art of tattooing is protected by the free-speech guarantee of the First Amendment.

The case rejected by the high court involves a man who was arrested for violating South Carolina's ban against tattooing.

South Carolina is only one of two states -- the other is Oklahoma -- that ban tattooing.

In 1999, a local television anchor asked a former tattoo artist, Ronald White, to help illustrate a three-part story on the art of tattooing.

The TV station later aired footage of White drawing a tattoo on the arm of another man in his Florence, S.C., home.

"The tattoo was a creative adaptation of an ancient tribal tattoo that signifies the onset of adulthood," White's petition to the high court said.

The local sheriff's office then sought a warrant for White's arrest. His petition said it was the only time anyone had been arrested for violating the state's 30-year ban against tattooing.

At trial, White admitted violating the ban, but said he was exercising his First Amendment right to artistic expression. He conceded that the state has an interest in health problems associated with tattooing, but said he followed all proper procedures, and the ban was not the "least restrictive means" to achieve the state's legitimate interest, as required by U.S. Supreme Court precedent.

White lost his case at trial -- he was sentenced to a $2,500 fine and one year in jail, reduced to five years probation and a $500 fine -- and eventually a divided South Carolina Supreme Court upheld his conviction.

The state court said the process of injecting dye to create a tattoo on another person's skin is not "sufficiently communicative" to be protected as speech or outweigh concerns of public safety.

White then asked the U.S. Supreme Court for review. At the nation's highest court, White is being represented by former Whitewater independent counsel Kenneth Starr.

In White's petition asking that the high court hear the case, Starr argued that the South Carolina Supreme Court's decision is in conflict with the decisions of other appeals courts and with those of the U.S. Supreme Court itself.

"All of these cases recognize that the act of engaging in artistic expression is a protected First Amendment activity," Starr said.

"... The First Amendment interests of those who wear tattoos are obvious," Starr said. "If a man can wear a profane slogan on his back in public ... he can surely wear a wide variety of tattoos on his body. But the Supreme Court of South Carolina has deprived its citizens of the right to wear tattoos by preventing artists and others from drawing tattoos. This double injury to the First Amendment freedoms makes this case all the more important."

In its own brief opposing U.S. Supreme Court review, South Carolina argued that White could have used any variety of media to express himself artistically.

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(No. 01-1859, White vs. South Carolina)

© 2002 United Press International, Inc. All Rights Reserved. Any reproduction, republication, redistribution and/or modification of any UPI content is expressly prohibited without UPI's prior written consent.
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