South Carolina currently regulates both where tattoo shops can operate within the state and where artists can place tattoos on customers’ bodies. Now, both of these restrictive laws are being challenged in court. While the state has previously justified its policies as health and safety regulations, the plaintiffs in the new lawsuit are alleging that the laws violate the freedoms of speech and expression guaranteed in the U.S. Constitution.
SC sued over tattoo parlor location restrictions and head, neck and face tattoo ban
South Carolina state officials are being sued in the case Tiny Zaps v. Dr. Brannon Traxler over two restrictive state laws concerning tattoos. The federal lawsuit, filed in Charleston, challenges Section 44-34-11 of the South Carolina Code of Laws, which states that the SC Department of Health “must not grant or issue a license to a tattoo facility, if the place of business is within one thousand feet of a church, school, or playground.” The lawsuit was filed by Tiny Zaps, a New York-based tattoo shop that was hoping to open a pop-up tattoo parlor at a boutique hotel in Charleston’s historic downtown district. The lawsuit alleges that the state regulation would prevent Tiny Zaps from operating at the hotel and would prevent tattoo shops from opening in most of the city given the dense population of churches as well as schools in Charleston.
The lawsuit also seeks to overturn a portion of Section 44-34-100 of the state’s legal code. In addition to banning tattoo artists from tattooing minors or people who are intoxicated, the code also makes it a misdemeanor “for a tattoo artist to tattoo any part of the head, face, or neck of another person,” regardless of the customer’s age or condition. Tattoo artists who violate the law are liable for a fine of up to $2,500 as well as imprisonment for up to one year. In challenging this ban, Tiny Zaps is joined in its lawsuit by South Carolina residents Joshua and Stephanie McDonald, who currently have a number of tattoos and state that the law blocks them from obtaining additional tattoos that they would get if not for the ban. Tiny Zaps and the McDonalds are being represented by the Pacific Legal Foundation, which posted a portion of its legal filing on social media.
Regulating health and safety vs. protecting freedom of speech and expression
As detailed in The State, the lawsuit directly names South Carolina Department of Public Health Acting Director Brannon Traxler and South Carolina Attorney General Alan Wilson as defendants. South Carolina’s tattoo regulations have generally been presented as public health and safety regulations and are enforced as such. The plaintiffs do not deny the right of the state to regulate the tattoo industry for health reasons, but they allege that the specific laws do not serve a public health purpose. In making this argument, the lawsuit points out that body piercing does not face the same location or body-placement restrictions despite utilizing similar skin-puncturing techniques with similar infection and other health concerns.
The plaintiffs allege that the South Carolina restrictions violate the plaintiffs’ First Amendment freedoms of speech and expression. “South Carolina cannot treat tattooing as second-class expression based on stigma or discomfort,” said Pacific Legal Foundation Senior Attorney Caleb Trotter. “The First Amendment protects artistic expression, whether it appears on canvas, paper, or skin.” The lawsuit challenges the two South Carolina laws under 42 U.S.C. § 1983, a federal civil rights statute. The plaintiffs also note that until 2004, South Carolina was one of only two states that completely banned tattooing within its borders, indicating an overall hostility to tattooing that goes beyond specific health or safety concerns…