South Carolina tattoo laws challenged as unconstitutional over proximity restrictions and ban on head, face, neck tattoos

In South Carolina, where tattooing was not legalized until 2004, tattoo shops operate under some of the strictest regulations in the country. A tattoo business is now suing the state's health director and attorney general, arguing that two state laws violate the First and 14th Amendments.

Current Restrictions

Under state law, the South Carolina Health Department does not grant or issue licenses to tattoo facilities located within 1,000 feet of churches, schools, or playgrounds. The state also prohibits tattoo artists from giving tattoos on the face, neck, and head. Violating this rule is considered a misdemeanor, punishable by a fine, up to one year in prison, or both.

The Lawsuit

In a lawsuit filed Friday, New York City-based company Tiny Zaps—which offers small, artist-designed micro tattoos—argues that these restrictions present unconstitutional hurdles to opening and operating a pop-up business in a hotel located in Charleston's historic district.

• Tiny Zaps claims the state's 1,000-foot rule makes its application for a tattoo facility license "futile" given the number of churches near the hotel.
• The business also argues that the above-the-shoulders tattoo rule "runs counter to Tiny Zaps's artistic vision of tattooing as a customer-driven experience that allows people to express themselves."

The company is seeking an injunction to stop the state from enforcing these laws.

South Carolina residents Joshua and Stephanie McDonald are also suing state officials over the tattoo restrictions. According to the lawsuit, the couple says they would obtain additional tattoos, "including tattoos on the head, face, or neck, from Tiny Zaps or other willing tattoo artists if South Carolina law permitted those tattoos to be performed."

Legal Arguments

In its lawsuit, the plaintiffs argue that these restrictions "are unique because, unlike South Carolina's numerous health and safety regulations governing tattooing, they do not regulate how tattooing is safely performed. Instead, they regulate where tattoo artists may speak and what tattoos willing adults may receive."

"The First Amendment protects artistic expression, whether it appears on canvas, paper, or skin," said Caleb Trotter, an attorney at the Pacific Legal Foundation, which is representing Tiny Zaps and the McDonalds. "Tiny Zaps and its willing customers deserve the freedom to create and receive lawful art without unconstitutional barriers."

The lawsuit also notes that the state does not apply similar restrictions to body piercing facilities.

Previous Legal Challenges

South Carolina's tattoo laws have been challenged before. In 1999, tattoo artist Ronald White challenged the state's tattoo ban by tattooing a man for a segment that aired on local television. According to The Wall Street Journal, White was fined $2,500 (equivalent to about $5,000 today) and given five years' probation. He appealed his conviction, arguing that South Carolina's statute prohibiting tattooing was unconstitutional.

In 2002, the state's Supreme Court ruled that the First Amendment did not protect artists, and "the danger associated with the activity of tattooing, whether artwork or not, is a legitimate reason to regulate it."

Constitutional law professor Jonathan Turley, writing in the Los Angeles Times in 2002, noted that the Court "held that, though a tattoo might be a form of protected expression, the 'process' of tattooing was not protected." He disagreed with the court's reasoning, writing, "this is akin to treating the Declaration of Independence as protected speech but not Benjamin Franklin's printing of the document."

Turley also noted that "as our artistic and political forms of expression evolve, the Constitution protects each new medium with the same vigor as the first."

Later that year, the U.S. Supreme Court declined to hear the case.