Massachusetts Tattooing Ban Declared Unconstitutional

October 23, 2000 12:00 am

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BOSTON, MA - Tattoos are expression protected by the First Amendment, just as much as paintings, drawings, engravings, and printed works, a Superior Court judge here today declared in a case brought by the American Civil Liberties Union of Massachusetts.

Acting on behalf of Stephan Lanphear, an award-winning tattoo artist, the ACLU had challenged a state law making it a crime for anyone other than a physician to engage in tattooing. Massachusetts is one of only five states which prohibit tattooing unless done by a health care professional.

"Tattooing is an ancient art form which has been practiced in virtually every culture for thousands of years," Judge Barbara Rouse said in her ruling. The judge noted that people "obtain tattoos to demonstrate commitment to other persons, to institutions, to religious beliefs, and to political and personal beliefs."

Lanphear is licensed as a tattooist in New York City and has long wanted to practice his art in Massachusetts but was barred by the law imposing criminal penalties.

In rejecting the government's claim that the law punished only conduct (the act of tattooing), Judge Rouse said the act of creating expressive material "is intrinsically part of the expressive content of the art." The First Amendment protects the act of creating written materials and protects the making of a painting, so it also protects the making of a tattoo.

After concluding that tattoo art is expression protected by the Constitution, Judge Rouse held that the government's asserted public health interest in a ban on tattooing could better be served by licensing and regulation, which would ensure that tattooing is conducted under sanitary conditions.

In opposing the law, the ACLU noted that the ban does not protect the public health because it has led to a large totally unregulated underground tattooing industry. Judge Rouse pointed out that "the Commonwealth agrees that unregulated tattooing poses greater public health risks than regulated tattooing."

The lawsuit, Lanphear v. Commonwealth of Massachusetts (Suffolk Superior Court No. 99-1896), was brought by ACLU of Mass. cooperating attorney Harvey Schwartz of Boston and staff attorney Sarah Wunsch.

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