Amicus Curiae Brief — White v. South Carolina

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No. 01-1859 AUG 19 2002

OFFICF O° T7" CLERE

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IN THE

Supreme Court of the Anited States

RONALD P. WHITE,

Petitioner,

¥.

SOUTH CAROLINA,

Respondent.

On Petition for a Writ of Certiorari to the

Supreme Court of South Carolina

BRIEF OF AMICUS CURIAE

CENTER FOR INDIVIDUAL FREEDOM

IN SUPPORT OF PETITION

FOR A WRIT OF CERTIORARI

RENEE L. GIACHINO *

REID ALAN COX

CENTER FOR INDIVIDUAL FREEDOM

901 N. Washington Street, Suite 402

Alexandria, VA 22314

(703) 535-5836

KINGSLEY R. BROWNE

WAYNE STATE UNIVERSITY

LAW SCHOOL

471 W. Palmer Avenue

Detroit, MI 48202

(313) 577-0476

* Counsel of Record Counsel for Amicus Curiae

WILSON-EPES PRINTING Co., INC. — (202) 789-0096 — WASHINGTON, D. C. 20001

TABLE OF CONTENTS

TABLE OF AUTHORITIES .............ccssscsssesseeeseenereeees

INTEREST OF AMICUS CURIAE........c.scccsccesseeseeeseseees

SUMMARY OF ARGUMENT ..........ccccsscssseeeeeeneeeeeeees

PTRGUMIENT ccsiccsrcctscsnsssassccssssesesenassncsonsstoncenasssnasosacsans

I.

Il.

II.

THE SOUTH CAROLINA SUPREME

COURT’S REFUSAL TO RECOGNIZE

FIRST AMENDMENT PROTECTION FOR

THE ART OF TATTOOING DISREGARDS

THIS COURT’S PRECEDENT ............:cceseeeeee

SOUTH CAROLINA’S — LEGITIMATE

PUBLIC HEALTH INTEREST IN REGU-

LATING THE ART OF TATTOOING DOES

NOT COMPLETELY EXEMPT THE

RESTRICTION FROM SCRUTINY UNDER

THE FIRST AMENDMENT ............::eseeeseeeeees

SOUTH CAROLINA’S BAN ON THE ART

OF TATTOOING CANNOT BE UPHELD

AS A VALID TIME, PLACE, OR MANNER

RESTRICTION ...............ccccscscccssscessrssssescesscceoes

CONCLUSION ......cccssssssssccsssccscnreccsesncacssssssssecsccesenseoes

(i)

10

TABLE OF AUTHORITIES

CASES Pages

Clark v. Community for Creative Non-Violence,

468 U.S. EG CURD ciicisescctcteistntnnibatctncetccins 7

Cohen v. California,

403 U.S. 15 (LITT)... ceeecesseesessensssenssesssensesensens 4

Hill v. Colorado,

530 U.S. FOS (QD ccseetscceisaiatinans 6, 7

Hurley v. Irish-American Gay, Lesbian

and Bisexual Group,

SiS U.S. S37 (2 cnccscceoneananainn 3,4

Joseph Burstyn, Inc. v. Wilson,

343 U.S. 495 (Estee 4

Kaplan v. California,

413 U.S. PS Ci riiscosiapemasenaaionen 4

Lanphear v. Massachusetts,

No. 99-1896-B (Super. Ct., Suffolk County,

Mass., Oct. 20, Sipe cccivesciisictnttiesensacvececsintionn 8

Schad v. Borough of Mt. Ephraim,

452 U.S. 68 (ROBE cccccicsceseseeeeanennen +

Spence v. Washington,

418 US, QBS CIDP) ncecssssevstlaniesennsinticinctasionsiene 3,4

State v. White,

348 S.C. 532, 560 S.E.2d 420 (2002) .......... 2, 3, 5, 6, 8

Turner Broad. Sys., Inc. v.

Federal Communications Comm'n,

S12 U.S. Gad Ce acciciccsdignaeniandionniins >

United States v. Albertini,

472 UD. GIS Ce ocscsseneesctadntiiertinceienies . 8

United States v. O’Brien,

S92 US. ST CI cacvccdiccssavisisntetiacicindrannedans 7

iil

TABLE OF AUTHORITIES—Continued

Pages

United States v.

Playboy Entertainment Group, Inc.,

REST OR Te 6

Ward v. Rock Against Racism,

a Re _, Re ee rR 7,8

CONSTITUTIONS & STATUTES

Re IIIT III, sali csiaaeiinineicnerstienegeeiehinentinnehiienan passim

a My ORL Ug TO WU A siicnisinhdnicnsdanicienincnnbbonesntnis 8

S.C. CODE ANN. § 16-17-7000... ceecceeseeeeeeees 2,8

IN THE

Supreme Court of the Anited States

No. 01-1859

RONALD P. WHITE,

Petitioner,

Vs

SOUTH CAROLINA,

Respondent.

On Petition for a Writ of Certiorari to the

Supreme Court of South Carolina

BRIEF OF AMICUS CURIAE

CENTER FOR INDIVIDUAL FREEDOM

IN SUPPORT OF PETITION

FOR A WRIT OF CERTIORARI

INTEREST OF AMICUS CURIAE '

The Center for Individual Freedom (the “Center”) is a non-

partisan, non-profit organization with the mission to protect

and defend individual freedoms and individual rights guar-

anteed by the U.S. Constitution, including, but not limited to,

free expression rights, property rights, privacy rights, freedom

of association, and religious freedoms. Of particular impor-

tance to the Center in this case is the need to vigilantly

safeguard an individual’s constitutionally protected right of

free expression without regard to the medium employed.

' This brief is filed with the written consent of both parties. No counsel

for a party authored this brief in whole or in part, nor did any person or

entity, other than Amicus or its counsel, make a monetary contribution to

the preparation or submission of this brief.

2

SUMMARY OF ARGUMENT

If ever there has been a case that merited summary reversal

by this Court, this is the case. The decision below , squares

with neither this Court’s long-standing constitutional pro-

tection for artistic expression under the Free Speech and Free

Press clauses of the First Amendment nor this Court’s

precedents applying First Amendment analysis to “time,

place, or manner” restrictions.

The central flaw in the South Carolina Supreme Court’s

decision is not that it erred in crafting a balance between the

expressive interests of tattoo artists and their clients, on the

one hand, and the State’s interest in public health and safety,

on the other. Rather, the court refused to engage in any

examination of the Petitioner’s expressive interests at all on

the erroneous grounds that, in the absence of some “par-

ticularized message,” tattooing simply is not expression and,

even if it were, the State’s asserted interest in public health

and safety obviates the need to engage in First Amendment

analysis.

This Court’s precedents make clear the dual error of the

state court’s analysis. First, constitutional protection under

the First Amendment extends to artistic expression even when

the art does not convey “a narrow, succinctly articulable

message.” Second, a state’s assertion of a public health and

safety interest does not preempt First Amendment scrutiny;

instead, the asserted interest is an integral part of that

analysis. Had the court below properly examined the

regulation as a “time, place, or manner” restriction, it would

have been compelled to strike it down because a complete

>The South Carolina Supreme Court upheld Petitioner Ronald P.

White’s conviction for engaging in the art of tattooing. See State v. White,

348 S.C. 532, 560 S.E.2d 420 (2002). The State of South Carolina com-

pletely bans and criminalizes tattooing by anyone other than a licensed

physician or surgeon, and even then it is allowable only when medically

necessary. See S.C. CODE ANN. § 16-17-700.

3

ban on the art of taitooing is not “narrowly tailored” to

advance the State’s legitimate interest in public health

and safety.

ARGUMENT

I. THE SOUTH CAROLINA SUPREME COURT’S

REFUSAL TO RECOGNIZE FIRST AMEND-

MENT PROTECTION FOR THE ART OF

TATTOOING DISREGARDS THIS COURT’S

PRECEDENT.

Faced with this Court’s well-established precedents to the

contrary, the South Carolina Supreme Court held that the

First Amendment is inapplicable to artistic expression unless

the art at issue “is ‘sufficiently imbued with elements of

communication.” State v. White, 348 S.C. 532, 538, 560

S.E.2d 420, 423 (2002) (quoting Spence v. Washington, 418

U.S. 405, 409 (1974)). Applying this standard, the court

below found that the art of tattooing is not expression “within

the boundaries of [the] First Amendment” because “tat-

too[ing] is not sufficiently communicative to warrant [consti-

tutional] protection{ ].” White, 348 S.C. at 537-538, 560

S.E.2d at 423. This decision stands in stark conflict with this

Court’s unanimous pronouncement in Hurley v. Irish-

American Gay, Lesbian & Bisexual Group, 515 U.S. 557

(1995), that “a narrow, succinctly articulable message is not a

condition of constitutional protection” for expression under

the First Amendment.’ /d. at 569.

* The South Carolina court was led astray by its failure to appreciate

the nature of the issue in Spence v. Washington, 418 U.S. 405 (1974),

which was an “as applied” challenge to a statute aimed generally at

“conduct.” The Spence Court’s examination of the communicative nature

of Spence’s conduct—taping a peace sign on a flag—came in the context

of deciding whether a regulation not aimed primarily at expression could

constitutionally be applied to someone who claimed that his particular

violation of the law was for expressive purposes. Such a claim neces-

sarily requires an analysis of whether his conduct conveyed a discernible

4

For more than a half century, this Court has consistently

held that the umbrella of the First Amendment shields artistic

expression without regard to the medium employed by the

artist, see, e.g., Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495,

502 (1952) (First Amendment protection for motion pictures),

or whether the art “convey[s] a ‘particularized message,”

Hurley, 515 U.S. at 569 (quoting Spence, 418 U.S. at 411).

Specifically, this Court has noted that First Amendment

protections unequivocally extend to “pictures, films, paint-

ings, drawings, and engravings,” Kaplan v. California, 413

U.S. 115, 119-20 (1973), as well as live and recorded

entertainment, including motion pictures, radio and television

programs, and musical and dramatic works, see Schad v.

Borough of Mt. Ephraim, 452 U.S. 61, 65 (1981). Thus, the

freedom of expression protected under the First Amendment

reaches “beyond written and spoken words as mediums of

expression . . . and unquestionably shield[s] [the] painting of

Jackson Pollock, [the] music of Arnold Schoenberg, [and the]

Jabberwocky verse of Lewis Carroll.” Hurley, 515 USS. at

569. Were the South Carolina court’s analysis to prevail, —

much of the most critically acclaimed art and literature would

lose its constitutional protection by virtue of the critics’

inability to agree about what message it conveys.

If painting and verse, and even an offensive slogan

emblazoned on a jacket, are “unquestionably shielded” by the

First Amendment’s freedom of expression, then so, too, must

the tattoo art created by Petitioner Ronald P. White. /d.; see

also Cohen v. California, 403 U.S. 15 (1971). After all, the

only difference between the Petitioner’s art and the

“unquestionably shielded” painting, verse, and slogan is the

medium employed by the artist. Petitioner has simply chosen

message. This case, however, is a facial challenge to a restriction banning

what is asserted to be an entire class of expression, so the question is

simply whether it is expression, not whether it is the expression of a

clearly discernible particularized message.

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to execute his art on the skin of individuals who commission

the art rather than on canvas or paper. While such a

distinction in artistic medium may implicate different state

regulatory interests, it does not remove the resulting expres-

sion from the purview of the First Amendment. Therefore,

this Court’s intervention is necessary to establish that the

First Amendment’s protection of an individual’s right of

artistic expression extends beyond particularized messages

conveyed via traditional media.

II. SOUTH CAROLINA’S LEGITIMATE PUBLIC

HEALTH INTEREST IN REGULATING THE

ART OF TATTOOING DOES NOT COM-

PLETELY EXEMPT THE RESTRICTION

FROM SCRUTINY UNDER THE FIRST

AMENDMENT.

The decision below rejects application of any First Amend-

ment scrutiny whenever a state invokes public health and

safety interests to justify a challenged regulation, even when

the restriction burdens constitutionally protected expression.

Specifically, the South Carolina Supreme Court held that the

State’s ban and criminalization of the art of tattooing was

wholly immune from First Amendment scrutiny because the

“invasion of human tissue” implicated the State’s interest in

the “protection of public health and general welfare.” White,

348 S.C. at 538-39, 560 S.E.2d at 423-24. This analysis is

flatly inconsistent with this Court’s precedents, which require

an examination of a state’s articulated interest as an integral

part of the First Amendment scrutiny applicable to all

restrictions that burden expression. See, e.g., Turner Broad.

Sys., Inc. v. Federal Communications Comm'n, 512 U.S. 622,

662 (1994).

This Court has never held that a state’s asserted interest in

public health and safety exempts a regulation that burdens

expression from ali First Amendment scrutiny. Rather, a

state’s interest is an important part of the First Amendment

6

calculus, and an examination of that interest is necessary even

when the asserted interest concerns public health and safety.

For example, in Hill v. Colorado, 530 U.S. 703 (2000), this

Court subjected a statute restricting expression near abortion

clinics to First Amendment scrutiny notwithstanding the

unquestioned legitimacy of the states’ interest in “protect[ing]

the health and safety of their citizens.” /d. at 715 (citation

omitted). The statute was upheld not simply because it was

intended to protect health and safety but because it satisfied

the requirements that this Court has established for laws

regulating the “time, place, or manner” of expression. The

South Carolina Supreme Court, however, never engaged in

that critical inquiry.

Iii. SOUTH CAROLINA’S BAN ON THE ART OF

TATTOOING CANNOT BE UPHELD AS A

VALID TIME, PLACE, OR MANNER

RESTRICTION.

Despite this Court’s clear mandate that “[w]hen the

Government restricts speech, the Government bears the

burden of proving the constitutionality of its actions,” United

States v. Playboy Entertainment Group, Inc., 529 U.S. 803,

816 (2000), the court below relied on “a general presumption

of validity for legislative acts when subjected to constitutional

attack, which can be overcome only by a clear showing that

the act violates some provision of the Constitution,” White,

348 S.C. at 536, 560 S.E.2d at 422. Only when the

challenging party can show that there is “‘no room for

reasonable doubt that it violates some provision of the

Constitution,” the court held, does the burden shift to the

state to defend it. Jd. at 537, 560 S.E.2d at 422 (citation

omitted). With all due respect to the South Carolina court,

Amicus submits that the court placed the burden of proof on

the wrong party.

7

Once the burden is placed where it belongs, the uncon-

stitutionality of the restriction could not be more obvious.

When a regulation that restrains expression “is justified

without reference to the content of [the] regulated speech,”

Hill, 530 U.S. at 720, it is subject to intermediate scrutiny

under the First Amendment and is constitutionally per-

missible only when “‘it furthers an important or substantial

governmental interest; . . . the governmental interest is

unrelated to the suppression of free expression; and . . . the

incidental restriction on alleged First Amendment freedoms is

no greater than is essential to the furtherance of that

interest,” Turner Broad. Sys., Inc., 512 U.S. at 662 (quoting

United States v. O’Brien, 391 U.S. 367, 377 (1968)).’ The

regulation must also leave open ample alternative channels

for expression. See Ward v. Rock Against Racism, 491.U.S.

781, 791, 797-98 (1989); accord Clark v. Community for

Creative Non-Violence, 468 U.S. 288, 293 (1984). It was the

obligation of the State to establish that its restriction satisfies

these requirements, but the court below did not require the

State to carry that burden.

The South Carolina statute can satisfy some of the “time,

place, or manner” requirements, but it plainly cannot satisfy

all of them. Assuming the State’s interest was in fact to

protect public health and safety—as opposed to singling out a

particular art form because of its traditional association with

outcasts or its incompatibility with orthodox religious

beliefs—that interest is legitimate and unrelated to the content

* This Court has noted that “the four-factor standard of United States v.

O’Brien, 391 U.S. 367 (1968), for validating a regulation of expressive

conduct . . . is little, if any, different from the standard applied to time,

place, or manner restrictions.” Clark v. Community for Creative Non-

Violence, 468 U.S. 288, 298 (1984). Nonetheless, it should be noted that

the encroachments on expression challenged in O’Brien and Clark

targcted predominantly non-expressive conduct—burning a draft card and

camping in a public park, respectively—and, unlike the South Carolina

restriction, only incidentally limited constitutionally protected expression.

8

of any particular tattoo. However, there is no evidence in the

record below that a complete ban and criminalization of the

art of tattooing leaves open ample alternative channels of

expression.

The restriction most clearly founders with regard to the

requirements that it actually further the State’s legitimate

interest and restrict no more speech than necessary in doing

so. The extent to which the statute. actually furthers the

State’s interest in public health and safety remains a mystery

because, as the state court noted, the State “failed to introduce

current evidence of the risks associated with tattoos.” White,

348 S.C. at 540, 560 S.E.2d at 424. Thus, whether the

restriction substantially furthers the State’s important interest

is impossible to ascertain, and the restriction should be struck

down on that ground alone.

The restriction also plainly fails to satisfy the narrow

tailoring requirement. The means utilized to further the

State’s asserted interest must not be “substantially broader

than necessary to achieve the government’s interest,” Ward,

491 U.S. at 800, and may not “burden substantially more

speech than . . . necessary to further the government’s

legitimate interest[ ],” id. at 799. Thus, “the requirement of

narrow tailoring is satisfied ‘so long as the . . . regulation

promotes a substantial government interest that would be

achieved less effectively absent the regulation.’” Jd. (quoting

United States v. Albertini, 472 U.S. 675, 689 (1985)). Under

this standard and given the record below, South Carolina’s

ban and criminalization of an entire art form is extraordinarily

overbroad.

South Carolina, having passed its regulation in 1966, is one

of only two remaining states that completely ban the art of

tattooing. See OKLA. STAT. tit. 21, § 841; S.C. CODE ANN.

§ 16-17-700. At least one similar restriction was recently

struck down as violating the First Amendment. See Lanphear

v. Massachusetts, No. 99-1896-B (Super. Ct., Suffolk County,

9

Mass., Oct. 20, 2000) (declaring a Massachusetts statute

banning the art of tattooing “void as violative of the First

Amendment”). A complete ban appears substantially broader

than necessary to achieve the State’s asserted interest in pub-

lic health and safety because modern sterilization techniques

can ensure the safety of tattooing without foreclosing the

entire art form as an expressive medium. The very fact that

only two states retain statutes completely banning the art of

tattooing strongly suggests that South Carolina’s ban imper-

missibly burdens substantially more expression than neces-

sary. In short, South Carolina has not proved—and probably

cannot prove—that its legitimate asserted interest in public

health and safety would be achieved less effectively absent a

complete ban. After all, forty-eight states have chosen

substantially less restrictive means, such as sterilization and

licensing requirements, to protect their citizens from any

dangers associated with the art of tattooing, and South

Carolina has provided no explanation at all for why the

course chosen by almost all other states would fail to protect

its legitimate interests. Therefore, South Carolina’s chosen

means—banning and criminalizing an entire art form—are

constitutionally impermissible.

10

CONCLUSION

For the foregoing reasons, the Petition for a Writ of

Certiorari should be granted.

* Counsel of Record

August 19, 2002

Respectfully submitted,

RENEE L. GIACHINO *

REID ALAN COX

CENTER FOR INDIVIDUAL FREEDOM

901 N. Washington Street, Suite 402

Alexandria, VA 22314

(703) 535-5836

KINGSLEY R. BROWNE

WAYNE STATE UNIVERSITY

LAW SCHOOL

471 W. Palmer Avenue

Detroit, MI 48202

(313) 577-0476

Counsel for Amicus Curiae