IN THE SUPREME COURT OF VIRGINIA
LASTING BEAUTY, L.L.C.
and DENISE HUMPHRIES,
Petitioners / Appellants,
v.
RECORD NO.:
Chesapeake Circuit
Court No.: 04-626
CITY OF CHESAPEAKE
and JAMES T. DAVIS, CZA,
Zoning Administrator,
Respondents / Appellees.
AMICUS CURIAE MEMORANDUM OF SUPPORT
FOR PETITIONERS / APPELLANTS
PETITION FOR APPEAL
ASSIGNMENT OF ERROR1
The trial court erred in failing to determine that the City’s zoning scheme
governing tattooing unconstitutionally burdens free speech and expression rights
guaranteed by the United States and Virginia Constitutions.
QUESTION PRESENTED
Did the trial court err in failing to determine that the City’s zoning scheme
governing tattooing unconstitutionally burdens free speech and expression rights
guaranteed by the United States and Virginia Constitutions? (Assignment of Error A).
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Although the Petition for Appeal lists five separate Assignments of Error, this Memorandum will
only address one and the corresponding Question Presented.
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TABLE OF CONTENTS
ASSIGNMENT OF ERROR .....................................................................................................1
QUESTION PRESENTED ........................................................................................................1
TABLE OF CONTENTS ...........................................................................................................2
TABLE OF CITATIONS ..........................................................................................................3
STATEMENT OF THE CASE..................................................................................................4
SUMMARY OF ARGUMENT .................................................................................................4
ARGUMENT .............................................................................................................................4
CONCLUSION ..........................................................................................................................8
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TABLE OF CITATIONS
Cases
Pages
City of Chesapeake, et. al., v. Lasting Beauty, LLC, et. al., Chancery No. 04-626
Memorandum Opinion p. 5 (Chesapeake Cir. Ct. March 23, 2006) ................................. 4, 5, 7
Commonwealth v. Lanphear, 50 Mass. App. Ct. 1107 N.E.2d 1281 (2000) .............................6
Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, 515 U.S. 557 (1995)
................................................................................................................................................7, 8
Lanphear v. Commonwealth of Massachusetts, Mass. Superior Court Slip Opinion 99-1896B (October 20, 2000) .................................................................................................................6
MacNeil v. Bd. App. Boston, No. 02CV01225, 2004 WL 1895054 (Mass. Super. Aug. 8,
2004) ..........................................................................................................................................6
Minneapolis Star Tribune v. Minnesota Comm’r of Revenue, 460 U.S. 575 (1983) .................5
Satellite Broad. & Commc'n Ass'n v. FCC, 257 F.3d 337 (4th Cir. 2001) ................................7
Spence v. Washington, 418 U.S. 405 (1974)..........................................................................7, 8
State v. White, 560 S.E.2d 420 (S.C. 2002) ...........................................................................5, 6
United States v. O'Brien, 391 U.S. 367 (1968) ......................................................................7, 8
Other:
Levins, Hoag. "The Changing Cultural Status of Tattoo Art" Tattooartist, 1998. August 2,
2006 (http:/www.tattooartist.com/history.html) ........................................................................6
Muhammad II, Lawrence, “Tattoo You,” Chicago Tribune, Nov. 4, 1997, ONLINE
EDITION, pg. ZONE .................................................................................................................6
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STATEMENT OF THE CASE
Amicus adopts the Statement of Facts and the Statement of the Case and Summary of
Material Proceedings Held in the Trial Court presented in the Petitioners / Appellants’
Petition for Appeal.
SUMMARY OF ARGUMENT
Although this case raises a number of issues worthy of this Court’s consideration, the
question of whether tattooing is an art form deserving of First Amendment protection by
itself justifies granting the Petition for Appeal. As the lower court recognized, ‘[n]either the
United States Supreme Court, nor the Supreme Court of Virginia has addressed this issue.”
City of Chesapeake, et. al., v. Lasting Beauty, LLC, et. al., Chancery No. 04-626,
Memorandum Opinion p. 5 (Chesapeake Cir. Ct. March 23, 2006) (hereinafter
“Memorandum Opinion”). Thus, this case presents an opportunity for this Court to provide
definitive direction where none currently exists. Moreover, this case has implications not
only for tattooing in the City of Chesapeake, but potentially for regulating other forms of
expression by localities throughout the state. Amicus respectfully urges this Court to grant
the Petition for Review in order to determine whether it is constitutionally permissible for
localities (and their courts) across Virginia to emulate the City of Chesapeake in regulating
artistic expression.
ARGUMENT
Amicus believes that review of this case is amply warranted by several errors in First
Amendment analysis by the court below. In determining that the Chesapeake ordinance did
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not implicate the First Amendment, the court below relied heavily on a decision of the South
Carolina Supreme Court that upheld a state law permitting only licensed physicians to apply
tattoos. Memorandum Opinion pp. 5-7 (citing State v. White, 560 S.E.2d 420 (S.C. 2002)).
This reliance is misplaced for several reasons. First, the reasoning of White is fundamentally
flawed in that, for First Amendment purposes, it distinguished the “process” of tattooing
from the tattoo itself. White, 560 S.E.2d at 423 (“Appellant has not made any showing that
the process of tattooing is communicative enough to automatically fall within First
Amendment protection.”). In dissent, Justice Waller recognized that such a distinction
represented a departure from traditional First Amendment jurisprudence. “In my view, this is
akin to saying that an author who is paid a commission to write a book by a publisher, or an
artist commissioned to paint a rendering, does not engage in speech, but that the publisher,
and purchaser of the painting do engage in speech. I find such an analysis completely
untenable.” Id. at 425 n.9 (Waller, J., dissenting).
Indeed, the process of creating many an expressive work involves no intent to
convey a message until the work is completed. In order to protect the creation of expressive
works, the lower court’s reasoning would require that the process of creating be a
performance in its own right, apart from the creation. A logical conclusion of this reasoning
is that government could make a law unreasonably restricting use of the printing press
without implicating the First Amendment. Yet, such a conclusion was rejected by the U.S.
Supreme Court when it held that a tax applied only to ink and paper used by newspapers
placed an undue burden on the First Amendment rights of the press. See Minneapolis Star
Tribune v. Minnesota Comm’r of Revenue, 460 U.S. 575 (1983).
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The lower court’s reliance on White is also misplaced because the South Carolina
Supreme Court itself relied heavily on cases that failed to view tattooing in its proper context.
As Justice Waller notes in his dissent, in the time since the cases relied upon by the majority
were decided the cultural status of tattoos has increased while serious health risks have
diminished. See White, 560 S.E.2d at 425 (Waller, J., dissenting). Citing the increase in
mainstream popularity of tattoo art and its acceptance in respected galleries and scholarly
institutions, Justice Waller concludes that, “Consistent with the more modern trend, it is my
opinion that the process of tattooing is indeed a protectable form of speech.” Id. at 425.1
In addition, the White majority failed to consider the lengthy and detailed analysis
provided in Lanphear v. Commonwealth of Massachusetts, Mass. Superior Court Slip
Opinion 99-1896-B (October 20, 2000), aff’d, Commonwealth v. Lanphear, 50 Mass. App.
Ct. 1107, 737 N.E.2d 1281 (2000) which concluded tattooing was protected by the First
Amendment. See also MacNeil v. Bd. App. Boston, No. 02CV01225, 2004 WL 1895054
(Mass. Super. Aug. 8, 2004). The mere fact that there is a split among other jurisdictions on
1
In his dissenting opinion, Justice Waller quotes the following synopsis:
The cultural status of tattooing has steadily evolved from that of an anti-social activity in the 1960s to
that of a trendy fashion statement in the 1990s. First adopted and flaunted by influential rock stars like
the Rolling Stones in the early1970s, tattooing had, by the late 1980s, become accepted by ever
broader segments of mainstream society. Today, tattoos are routinely seen on rock stars, professional
sports figures, ice skating champions, fashion models, movie stars and other public figures who play a
significant role in setting the culture's contemporary mores and behavior patterns ...
The market demographics for tattoo services are now skewed heavily toward mainstream customers.
Tattooing today is the sixth-fastest-growing retail business in the United States. The single fastest
growing demographic group seeking tattoo services is, to the surprise of many, middle-class suburban
women. Tattooing is recognized by government agencies as both an art form and a profession and
tattoo-related art work is the subject of museum, gallery and educational institution art shows across
the United States.
"The Changing Cultural Status of Tattoo Art" (http:/ www.tattooartist.com/history.html); See also Lawrence
Muhammad II, Tattoo You, Chicago Tribune (Nov. 4, 1997)(recognizing that tattoos have begun to appeal to
people from every walk of life, and that, contrary to popular belief, there is no serious health risk involved in
getting a tattoo, either. In most tattoo parlors, needles and inks are single-serve, gloves are worn and other
utensils are steam/autoclave-sterilized, the same method used by hospitals for surgical equipment).
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this issue warrants this Court’s granting the Petition for Appeal in order to provide definitive
direction to the localities and citizens of Virginia.
This Court should also hear the case in order to insure that Virginia courts apply the
analysis of United States v. O'Brien, 391 U.S. 367, 377 (1968) when determining the
constitutionality of content-neutral laws that nonetheless place burdens on the exercise of
expressive activity. (See Satellite Broad. & Commc'n Ass'n v. FCC, 257 F.3d 337, 355 (4th
Cir. 2001) (law at issue is "a content-neutral measure that imposes incidental burdens on
speech and is therefore subject to intermediate First Amendment scrutiny under United States
v. O'Brien")). O’Brien holds that “a government regulation is sufficiently justified if it is
within the constitutional power of the Government; if it furthers an important or substantial
governmental interest; if the governmental interest is unrelated to the suppression of free
expression; and if the incidental restriction on alleged First Amendment freedoms is no
greater than is essential to the furtherance of that interest.” O’Brien, 391 U.S. at 377.
Yet, the lower court failed to apply or even mention the O’Brien standard in
assessing the Chesapeake ordinance. Instead, the lower court merely dismissed First
Amendment concerns by claiming the act of creating a tattoo was pure conduct, arguing that
under the holding of Spence v. Washington, 418 U.S. 405 (1974), the “Defendants were
required to show how the act of tattooing or applying permanent makeup is intended to
convey a particularized message and whether there is a likelihood that the message would be
understood by those who viewed it." Memorandum Opinion p. 7. But this interpretation of
Spence is at odds with subsequent U.S. Supreme Court holdings on the issue. For example,
in Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, the Court stated a
“narrow, succinctly articulable message is not a condition of constitutional protection, which
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if confined to expressions conveying a ‘particularized message,’ cf. Spence v. Washington,
418 U.S. 405, 411, 94 S.Ct. 2727, 2730, 41 L.Ed.2d 842 (1974) (per curiam ), would never
reach the unquestionably shielded painting of Jackson Pollock, music of Arnold Schöenberg,
or Jabberwocky verse of Lewis Carroll.” Hurley, 515 U.S. 557, 569 (1995) (citation to
Spence in original). Given the lower court’s complete silence both on the U.S. Supreme
Court’s elaboration of its the holding in Spence, and its holding in United States v. O’Brien,
amicus urges the granting of the Petition of Appeal in order to allow this Court to fill that
jurisprudential void.
CONCLUSION
For the foregoing reasons, amicus curiae urge this Court to grant the Petition for
Review filed by the Petitioners / Appellants.
Respectfully submitted,
______________________
J. Joshua Wheeler
VA State Bar # 36934
Counsel for Amicus Curiae
The Thomas Jefferson Center for the
Protection of Free Expression
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