“I impose my own set of aesthetics and value judgments as to what beauty is and what it isn’t in the context of the image that [customers] choose,” one tattooist says. “I [ ] manifest those qualities in a language.” That language, spoken fluently by an increasing number of self-described tattoo “artists,” consists of unique images, honed techniques, innovative color schemes, and other artistic methods or themes. As the tattooists themselves describe it, their work is nothing short of pure art—as expressive as Leonardo’s Mona Lisa or T.S. Eliot’s The Four Quartets. Yet, unlike Leonardo’s canvas or Eliot’s verses, the First Amendment status of so-called “skin art” has yet to be determined.
The First Amendment, applied to the states through the Fourteenth Amendment, forbids laws “abridging the freedom of speech.” The Supreme Court has interpreted this language as protecting not only basic political expression, but also nontraditional communicative media (such as dance, film, and music) and expressive conduct (such as burning an American flag). The Court has also declared—with little explanation—that the First Amendment protects “artistic expression.” Nonetheless, precedent leaves a fundamental question unanswered: What is artistic expression?