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Title: Tattoos vs. the State
Source:
Reason
URL Source: https://reason.com/archives/2016/05/14/tattoos-vs-the-state
Published: May 16, 2016
Author: Damon Root
Post Date: 2016-05-16 09:31:46 by Deckard
Keywords: None
Views: 971
Comments: 9
Tattoo artists Tom and Elizabeth Preston jumped through every regulatory hoop that the city of Tempe, Arizona, placed in their way. The couple filed the necessary paperwork for opening a tattoo parlor on the north side of town, paid the necessary fees, and obtained the necessary permits before breaking proverbial ground on a studio called Body Accents. But then, after the Prestons had spent more than $30,000 on renovations, permits, and related costs, Tempe abruptly changed its tune. Their original operating permit was revoked, the Prestons were told, because the proposed tattoo shop might attract an unsavory clientele. The message was clear: Take your inky business elsewhere. But the Prestons had a better idea. They joined forces with the lawyers at the Goldwater Institute, a free market think tank in Phoenix, and filed suit against the city for abusing its regulatory authority and violating their rights. In 2009 Maricopa County Superior Court Judge Robert H. Oberbillig ruled in their favor. The city's actions were arbitrary and capricious, Oberbillig declared, and the Prestons' original permit must be reinstated. One year later, Tempe dropped its appeal of the decision and settled the case. "Clearly, we lost money because we couldn't open the studio three years ago," Elizabeth Preston observed at the time. But at least the pair were finally able to get on with the business of earning a living. "This lifts such a weight off of our shoulders." Preston v. Hallman was not the first time that the skin-and-ink trade came to grips with the regulatory state, and it surely won't be the last. Over the past half-century, tattoo artists have been subjected to all manner of overreaching, ill-fitting, and just plain nonsensical government controls. They've been hassled by clueless health departments, shut down by moralizing zoning boards, and outlawed entirely by busybody city councils and state legislatures. But tattoo artists can be a prickly bunch, and increasingly they're opting to fight back. In recent years tattooists around the country have launched a series of civil liberties lawsuits designed to put the government's regulatory malfeasance on trial. And while the ink-masters aren't winning every case, their legal attacks are finally starting to turn the tide. 'A Barbaric Survival' O'Reilly revolutionized the business in other ways as well. As the journalist Albert Parry remarked in his 1933 book Tattoo: Secrets of a Strange Art as Practised among the Natives of the United States, the New Yorker "expanded the choice of materials till it included such old and new stuff as powdered charcoal, finely powdered brick-dust, coal-dust, lamp black, Prussian blue, washing blue, gunpowder, cinnabar, ordinary writing ink, China ink, India ink, and other vegetable inks." O'Reilly dubbed himself "Professor," and took on several apprentices over the years, including future tattoo legend Charlie Wagner, who would go on to work the Bowery until the early 1950s. Today's tattoo artists and enthusiasts remain in O'Reilly's debt. Perhaps unsurprisingly, the same city that witnessed the birth of modern tattooing also inaugurated one of the first massive crackdowns on the practice. That effort culminated in 1961, when New York City declared it "unlawful for any person to tattoo a human being," a prohibition that remained on the books for nearly four decades. Gotham finally relegalized the tattoo trade in 1997. New York's tattoo ban was a classic case of regulators using a bogus public-health pretext to hound an unpopular activity out of existence. Blaming tattooing—falsely—for a minor outbreak of Hepatitis B, city health officials went on the attack, declaring that "from a public health point of view" the tattoo industry was "not regulatable." Only a total ban would save the citizenry, the government claimed. Fred Grossman, a tattooist who worked out of a shop in Coney Island, took a different view. He brought suit, charging the city with using its regulatory powers for illegitimate ends. But when his case finally reached the courtroom, Grossman hit a brick wall of judicial indifference. According to state appellate Judge Aron Steuer, "the decoration, so-called, of the human body by tattoo designs is, in our culture, a barbaric survival, often associated with a morbid or abnormal personality." Tattooists found no refuge in Steuer's courtroom. Grossman next appealed to the state's highest court, but it was equally dismissive. "In its wisdom, the board in the case before us decided that the prohibition of lay tattooing was essential for the protection of the public health," the court ruled in Grossman v. Baumgartner (1966). Because "the police power is exceedingly broad…the courts will not substitute their judgment of a public health problem for that of eminently qualified physicians in the field of public health." As an authority for that deferential stance, New York's high court cited the U.S. Supreme Court's 1938 opinion in the landmark New Deal case United States v. Carolene Products Co. In that far-reaching decision, written by Justice Harlan Fiske Stone, the Supreme Court held that when it came to "regulatory legislation affecting ordinary commercial transactions…the existence of facts supporting the legislative judgment is to be presumed." In other words, in all constitutional disputes between the government and the businesses it regulates, the scales of justice must be tipped overwhelmingly in favor of the regulators. Needless to say, such sweeping judicial deference spelled doom for New York City's beleaguered tattoo artists, who were now transformed from law-abiding entrepreneurs to outlaws plying their trade in the shadows. 'Tattooing Is an Art Form' The implication of that footnote did not go unnoticed. What if tattooists tried fighting government regulation from their position as artists engaged in the venerable act of free expression, as protected by the First Amendment? In 2000, an award-winning tattoo artist named Stephen Lanphear joined forces with the American Civil Liberties Union and proceeded to pose that very question. Lanphear filed suit against the state of Massachusetts, which had declared it a crime, 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." "Tattooing is an art form," Lanphear argued in his lawsuit. And "the acts of creating and wearing tattoo art are forms of expression protected by the First Amendment to the United States Constitution." State Superior Court Judge Barbara J. Rouse soon agreed. "The act of tattooing is inseparable from the display of the tattoo itself and is expression protected by the First Amendment," Rouse held in Lanphear v. Commonwealth of Massachusetts. "Any regulation of the tattooing process must, therefore, comply with constitutional requirements." The Bay State's tattoo ban was struck from the books. Six years later, a California tattooist named Johnny Anderson took the fight to federal court, filing a First Amendment challenge against Hermosa Beach's prohibition on the operation of tattoo shops within city limits. "The tattoo designs that are applied by me are individual and unique creative works of visual art," Anderson maintained; therefore, he argued, they deserve full constitutional protection. After losing at federal district court, Anderson went on to secure a landmark 2010 victory at federal appellate court, the highest level of the federal judiciary short of the U.S. Supreme Court. "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 three-judge panel of the U.S. Court of Appeals for the 9th Circuit. It was the tattoo trade's greatest victory to date against the regulatory state. 
Joanna Andreasson/Julian Dufort 2016
The art of tattooing has been around for millennia, but the modern tattoo industry effectively got its start on December 8, 1891, when a New York City tattooist named Samuel F. O'Reilly received a patent for the electric tattoo machine. Based on the design for Thomas Edison's autographic printer, which was essentially a motorized engraving tool, O'Reilly's invention sped up the process of tattooing while vastly improving the quality of the final product. Prior to his innovation, tattoos were done by hand, usually with a set of needles affixed to a wooden handle. Even for the most skilled practitioners, it was slow-going work. During the Spanish-American War of 1898, by contrast, O'Reilly reportedly inked upwards of 130 naval reservists in a single day from his small shop at 11 Chatham Square, located at the southern end of New York's famous Bowery.
Carolene Products effectively ended the idea of tattooists challenging regulations from their position as entrepreneurs. But that same decision also planted the seeds for a future counterattack. "More exacting judicial scrutiny," the Carolene Products Court explained in a footnote, would still be appropriate in other types of cases. For example, judges should not automatically defer to the government in cases involving "a specific prohibition of the Constitution, such as those of the first ten amendments."
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#1. To: Deckard (#0)
Just a word to those who profess to be Christians concerning tattoos. God commands in Leviticus 19:28 Ye shall not make any cuttings in your flesh for the dead, nor print any marks upon you: I am the LORD. If you, as a professing Christian, can justify a tattoo after becoming a Christian, I would love to see your definition of Christian.
#2. To: BobCeleste (#1)
I've never been interested in tattoos, but as a Christian I will easily justify them. You quoted Leviticus, which was part of the convenant law of Mt. Sinai. Who were the parties to the Sinai Covenant? The Hebrews present in the desert and YHWH. To whom did the covenant and its laws apply? To those Hebrews and their circumcised lineal descendants. And what did YHWH promise for strict obedience to every law and statute, ordinance and judgment given under that convenant? Eternal life? No. God never said a thing about eternal life to the Hebrews at Sinai. The only thing God promised was a farm in Israel, and prosperity and peace and fertility during the lifetime of the believers. Nothing more. So, now let's move to converts to Christianity today. Christians are not Hebrews. Whether circumcised or not, we are not lineal descendants of those Hebrews at Sinai. If we follow every tenet of the Law of Sinai, we do not gain eternal life; nor did the Jews of that era. Why? Because YHWH never promised eternal life for obeying the Law of Moses given at Sinai. He promised a farm in Israel. Once the Temple was torn down, Jews no longer have the ability to offer the prescribed sacrifies, which means that the covenant CAN'T be fulfilled even if the Jews wanted to. Gentiles trying to fulfill the covenant of Sinai won't get the farm either. Nor will they obtain eternal life. For the latter was not promised to anybody, and the farm was only promised to Hebrew. So, God commanded the Hebrews in Israel not to get tattoos. The penalty for disobedience was that they wouldn't get the secure farm. God was silent on life after death. Christ's New Covenant made no promises at all about farms or this life. The only promise was that those who follow Jesus will be acceptable to the Father and obtain life with him in the City of God. Jesus never mentioned tattoos, and having one or not has no bearing on eternal life. The covenant with Israel was about a farm and never had anything to do with eternal life. Two different contracts, with two different people, and two different sets of terms and promises. To think that the tattoo or pork rules of the first have a bearing on the second, or vice-versa, is an error. A Christian does not risk his eternal life by having a tattoo, because the definition of Christian is one who believes in the divinity of Jesus, and who follows Jesus, keeping his commandments. And Jesus never made any statement on tattoos.
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Replies to Comment # 1. If you, as a professing Christian, can justify a tattoo after becoming a Christian, I would love to see your definition of Christian.
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