Let People Ink for Themselves

J osh and Stephanie McDonald want to get tattoos. A parlor wants to give them tattoos. Two consenting adults want to exchange money for a service. Yet South Carolina state law keeps them apart, as if they were kids at a religious school dance, being told to make room for the Holy Ghost between them.

South Carolina law bars tattoo parlors from operating within 1,000 feet of a church, school, or playground. In Charleston, near where the McDonalds live, that leaves scant real estate for a tattoo parlor to operate. Further, the state bars any tattoo parlor from inking people on their heads, faces, or necks, a practice that has grown in popularity over the past decade. If you’re not currently listening to a musical artist with a face full of tattoos, here’s a reminder that you’re probably due for a colonoscopy.

This is all bad news for Tiny Zaps, a New York City–based tattoo parlor looking to set up shop in Charleston. The small parlor is happy to abide by South Carolina’s licensing, sanitation, sterilization, training, inspection, and customer-protection requirements — yet it is forbidden from allowing its illustrators to create ink drawings because lawmakers don’t like the fact that their canvases are other people.

Tiny Zaps is challenging the law in court, arguing that the ban on placement of the tattoos and limitations on parlor location is a First Amendment violation.* Tattoo art, they contend, is free expression, and throttling it violates the expressive rights of both the person applying the ink and the person looking to make a statement with their inked epidermis.

The parlor, as its name suggests, specializes in small, inexpensive tattoos that can be done quickly. And yet, for some reason, the state believes its mere presence would be detrimental to schoolchildren and the devout. Ironically, one of the parlor’s most popular tattoos is a tiny cross, allowing people to show their love for the Lord in a permanent way — even if they want it on their neck or behind their ear.

The higher the tattoo, after all, the closer to God.

Yet South Carolina lawmakers continue to disfavor tattoos while taking no stand on other forms of self-expression. Piercings, for instance, are not subject to the same content-based bans that tattoos are; anyone of legal age who wants one can get one, regardless of a nearby playground full of children at risk of having their souls corrupted. And you can get pierced virtually anywhere on your body, whether you want to display it for the world or solely your OnlyFans subscribers.

The state has always had it out for tattoos specifically. Until 2004, South Carolina was one of only two states that banned tattooing completely, a law upheld by the state supreme court in 2002. The current law is effectively a ban, given that the Palmetto State is home to over 7,000 churches.

It shouldn’t be up to the state to determine the wisdom of having an image of a mermaid or a butterfly permanently etched on one’s skin. It is, of course, the right of anyone to judge the wisdom of any specific tattoo: In 2017, over 100 feminists lined up at a Minneapolis-area tattoo parlor to memorialize Senator Elizabeth Warren’s hijinks on the U.S. Senate floor with the words “Nevertheless, she persisted,” evidently unaware that they would forever be emblazoned with a comment spoken by Republican leader Mitch McConnell.

While the uptight South Carolina laws may date back decades, they fit perfectly within a modern political culture in which poking one’s nose into the business of others is not only encouraged but required. While most conservatives once preached freedom and individualism, the antithesis of a proscribed, Soviet-style existence, some on the new post-liberal right see fit to inject themselves into public policy debates to legislate their own morality.

Just this week, New York Times Magazine reporter Elisabeth Zerofsky relayed a story in which Kevin Roberts, president of the once traditionally conservative Heritage Foundation, urged co-workers to stop talking about individual liberty and instead focus on the “common good.” This new ethos emphasizes not “the right to do as you want but as you ‘ought.’”

It seems unlikely that many Americans elect politicians to tell them where they “ought” to get a tattoo.

The old fusionist line was that a free society tolerates the tattoo parlor next to the church precisely because it’s not the government’s job to referee regrettable ex-girlfriend portraiture or blasphemy. The new line may be that the “common good” enthusiasts have measured the distance between eternal salvation and soul-corrupting hedonism and concluded the gap is exactly 1,000 feet.

South Carolina lawmakers can call this whatever they like — public safety, community standards, an homage to zoning law’s rich philosophical tradition — but Tiny Zaps is right to call it what it is in court: censorship.

*Disclaimer: The author is employed by the Pacific Legal Foundation, which represents Tiny Zaps in its lawsuit against South Carolina.