- The Washington Times - Saturday, July 27, 2002

The bumper stickers say, "American by birth. Tattooed by choice." Ron White, a tattooist who is barred in South Carolina from pursuing his profession, takes that slogan a bit further. He thinks that part of every American's birthright is the choice to be tattooed, and he is asking the Supreme Court to uphold that freedom. "How can we say that America is the land of the free when I'm not allowed to practice my art and express my beliefs freely?" he asks.

The injustice being done to Mr. White may bring to mind Oscar Wilde's comment about a tragic scene in "The Old Curiosity Shop" by Charles Dickens: "One must have a heart of stone to read the death of Little Nell without laughing." Most people will have trouble taking seriously the idea that tattooing is a type of expression protected by the Constitution. For that matter, the ex-Marine at the end of the bar with the skull and crossbones on his forearm might have trouble taking it seriously.

But what sounds risible on first impression is actually not so crazy. Conservatives may sneer that only liberals advocating judicial activism could possibly swallow Mr. White's argument. They may be surprised to learn that the lawyer handling his case is a guy named Kenneth Starr and, no, he has not lost his mind or gone to work for the American Civil Liberties Union.

South Carolina is one of only two states that prohibit tattooing. In 1999, Mr. White was arrested after a TV broadcast of him tattooing a man. He was convicted, put on probation for five years and fined $500.

But he appealed, arguing that art is protected by the First Amendment guarantee of freedom of expression, and that it shouldn't matter whether the art is on a canvas or a bicep. Galleries and museums apparently agree, since many have done exhibitions of tattoo art.

The state says it's merely safeguarding public health. Dirty instruments can spread disease, including hepatitis and, in theory, the AIDS virus. But outlawing tattooing to prevent infections is like banning eggs to fight salmonella. The federal government's National Institute of Environmental Health Sciences notes, "If appropriate disinfection and sterilization techniques are used, the health risk associated with tattooing is small." Other states address health concerns by licensing and regulating tattooists.

As it happens, the opponents seem to be more motivated by the sentiment that tattoos are sinful, un-Christian or just plain icky. "If the Lord wanted you to have a tattoo, He would have put it on you," claims South Carolina State Sen. Jake Knotts, while wearing clothes that the Lord did not put on him. "I'm trying to make sure this state does not have a tattoo parlor on every corner," he has said, which makes you wonder if the state has no zoning laws.

But the state Supreme Court rejected Mr. White's appeal, concluding that tattooing is not the equivalent of speech and that even if it were, the state's health concerns are enough to justify the law. In reality, forbidding the practice is more likely to endanger health than allowing it, by leaving the field to illegal practitioners. Getting in a car and driving to Georgia or North Carolina to get tattooed presents more risks to life and limb than being injected with a little dye.

Anyone who has ever seen a tattoo knows that though this may not be the most elegant method of communication, it is communication just like waving the American flag, flashing a peace symbol or wearing a swastika. "There is no doubt that, in creating words, pictures or images on the bodies of those who wear tattoos, White is intending to convey a message and the message is likely to be understood by those who view it," wrote dissenting Justice John Waller.

Mr. Starr says it doesn't matter if ideas are involved. Tattoos are art, he contends, and the Supreme Court has long recognized that art is protected by the First Amendment, regardless of whether it has any intelligible message. That's why the hardest-core pornography, which otherwise would fall beyond the pale, must be permitted if it has some shred of artistic value.

The fact that Mr. White is an artist doesn't exempt him from all regulation. You can ban lead paint even if the next Van Gogh wants to use it, and you can require tattooists to sterilize their equipment. But you can't tell painters they may do anything but paint, and you can't tell Mr. White he has to find some other medium.

That's Mr. Starr's theory, and maybe the Supreme Court will agree. In that case, Mr. White may find a lot of customers requesting tattoos of the First Amendment.

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