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South Carolina laws restricting where tattoo businesses can operate and certain tattoos for consenting adults are facing a constitutional challenge after a tattoo company and two residents sued the state’s Department of Health and Attorney General, alleging the restrictions violate the First Amendment.
The lawsuit challenges South Carolina’s ban on tattoo artists tattooing a person’s head, face or neck, as well as a law barring tattoo facilities from operating within 1,000 feet of a church, school or playground. The plaintiffs argue the restrictions limit tattoo artists and customers while treating tattooing differently from other forms of protected expression.
“South Carolina has no business deciding that a tattoo behind your ear is a crime or how far tattooing can take place from a church. South Carolina can regulate tattooing for legitimate health and safety reasons, but the First Amendment does not allow it to decide that tattoos are somehow less worthy of constitutional protection than other artistic mediums,” attorney Dean McGee who is representing the plaintiffs told Newsweek in an email Saturday.
Newsweek has reached out to the South Carolina Department of Health and the Attorney General’s office for comment via email on Saturday.
What to Know About the Lawsuit
A New York-based tattoo company, Tiny Zaps, and South Carolina residents Joshua and Stephanie McDonald, filed a federal lawsuit in Charleston on Friday challenging two state tattoo restrictions as violations of the First Amendment. The McDonalds say they would obtain additional head, face or neck tattoos from willing artists if the restrictions were lifted.
Federal courts in multiple jurisdictions have recognized tattooing as protected expression under the First Amendment, though states continue to regulate the industry through health and safety rules. The allegations in the lawsuit have not yet been tested in court, and the state had not responded to the claims as of Saturday.
According to the complaint in Tiny Zaps v. Dr. Brannon Traxler, Tiny Zaps had explored opening a pop-up location at a boutique hotel in Charleston through discussions with a national hospitality operator. Those plans were put on hold because of South Carolina’s laws governing tattoo businesses. Traxler is the acting director of the South Carolina Department of Public Health.
The plaintiffs are represented by Pacific Legal Foundation, a public-interest law firm that frequently challenges government regulations on constitutional grounds and has argued multiple cases before the U.S. Supreme Court.
Why the Plaintiffs Say the Laws Are Unconstitutional
“Whether artwork appears on canvas, paper or skin, the Constitution protects both the artist’s right to create it and the customer’s right to receive it,” the Friday complaint said.
The lawsuit does not challenge the state’s broader health and safety regulations governing tattooing, including licensing and sanitation requirements. “South Carolina has long treated tattooing as disfavored expression,” the lawsuit alleges, noting that the state had outlawed tattooing until 2004 when lawmakers legalized the practice while imposing a series of restrictions on the industry.
The location restriction is codified in Section 44-34-110, which prohibits licensing a tattoo facility within 1,000 feet of a church, school or playground. According to the complaint, the Charleston hotel where Tiny Zaps hoped to operate is within 1,000 feet of multiple churches and at least one school. The plaintiffs also note that the restriction does not apply to body-piercing businesses.
The face, head and neck tattoo restriction is codified in Section 44-34-100, which makes it a misdemeanor for a tattoo artist to tattoo any part of another person’s head, face or neck.
“This ban on above-the-shoulders tattooing runs counter to Tiny Zaps’s artistic vision of tattooing as a customer-driven experience that allows people to express themselves,” the complaint states, adding that it has limited the McDonalds’ self-expression.
The lawsuit asks a federal court to strike down both restrictions, setting up a legal battle over whether South Carolina’s tattoo regulations violate the First Amendment or constitute permissible state regulation.
Contact Newsweek editors for this story: Steve Mollman and Anthony Murray.
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