Opinion | Jimmy Buffett, legal authority (on tattooing, of course)

[T]attooing [is] virtually indistinguishable from other protected forms of artistic expression. As [the Ninth Circuit] observed, “[t]he principal difference between a tattoo and, for example, a pen-and-ink drawing, is that a tattoo is engrafted onto a person’s skin rather than drawn on paper. . . . [A] form of speech does not lose First Amendment protection based on the kind of surface it is applied to.” . . .

Protected artistic expression frequently encompasses a sequence of acts by different parties [such as the person commissioning the tattoo and the tattoo artist -EV], often in relation to the same piece of work. The First Amendment protects the artist who paints a piece just as surely as it protects the gallery owner who displays it, the buyer who purchases it, and the people who view it.

Any other interpretation of the First Amendment in this context would deprive it of the force and effect the Supreme Court has told us it deserves. A regulation limiting the creation of art curtails expression as effectively as a regulation limiting its display. The government need not ban a protected activity such as the exhibition of art if it can simply proceed upstream and dam the source. Consistent with the Supreme Court’s teaching, the right to display a tattoo loses meaning if the government can freely restrict the right to obtain a tattoo in the first place. For this reason, the Supreme Court has never “drawn a distinction between the process of creating a form of pure speech (such as writing or painting) and the product of these processes (the essay or the artwork) in terms of the First Amendment protection afforded.”

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