Freedom of speech or freedom of expression. Is there any connection between it and tattoos? A recent case before the U.S. Supreme Court tattoo led to the denial of an immigrant visa. Even though the First Amendment was not the main focus point, the case itself made a brief antre for us to meditate about possible constitutional protection of tattoos. What conclusions does the USA case law offer, and why could (should) we get inspired by it?

Department of State v. Muñoz

Ms. Muñoz, the wife of a Salvadorian citizen who illegally entered the USA, took necessary legal steps to help him. This led to a long-lasting trial in the hope of her husband being allowed to immigrate to the USA. She was unsuccessful, and the U.S. Supreme Court (SC) ruled against her. SC concluded that she could not challenge her husband´s immigrant visa denial. The interesting and crucial was the public bodies´ evaluation of her husband´s “supposed gang tattoos.”[1]

Ms. Muñoz´s husband had no criminal record. However, public bodies were interested in his tattoos he had since his teenage years. These depicted “Our Lady of Guadalupe, Sigmund Freud, a ‘tribal’ pattern with a paw print, and theatrical masks with dice and cards.” The issue was that some of these images appeared on members of (Latin-American) criminal gangs. Therefore, the consular officer in Salvador (and for other reasons) determined that he was a member of a known criminal organization. 

Ms. Muñoz tried to prove these tattoos were innocent. Despite the expert reviews indicating the tattoos were innocent, they were not enough to change the decision. The whole problem brings a question… Whether having tattoos might be protected by freedom of speech? In other words, whether such sanction might be considered an infringement of the freedom of speech.

Tattoo is protected… by the Constitution?

Tattoos used to be seen predominantly as a part of rebellious subcultures (e.g., bikers, etc.); however, nowadays, they are part of mainstream culture together with a way of visually expressing yourself. For example, traditional Māori Moko amongst men was considered a way of being different from the rest of a group and/or making yourself appear more attractive to women.

The First Amendment to the Constitution of the United States (First Amendment) declares that “Congress shall make no law … abridging the freedom of speech “, i.e., it secures the freedom of speech. Tattoos might be considered a form of artistic expression and thus protected by it. However, it is crucial to distinguish between a) having a tattoo on your body and b) a tattoo artist creating a tattoo on your body. 

The tattooing process can be further divided into two subcategories: I. commercialized non-expressive form (e.g., reusable templates used by artists) and II. fine art (an openly expressive individualistic piece of art simply engraved onto someone’s skin). The protection of the first subcategory by the freedom of expression is, at least, debatable. On the other hand, the tattoo itself is considered protected by the First Amendment.[2] Therefore, restricting anybody just for having a tattoo should be considered a breach of his or her freedom of expression.

However, regarding the tattooing process, there are opposite conclusions of the SC. For example, in the Yurkew v. Sinclair case, SC found that “The process of tattooing, whatever its virtues or drawbacks, is not, in the view of the Court, "sufficiently imbued with elements of communication" and therefore it concluded that the First Amendment does not protect it. On the other hand, in the Anderson v. City of Hermosa Beach case SC concluded that “tattooing is purely expressive activity fully protected by the First Amendment. “ Protection of the artist is therefore uncertain.

Case law of other (lower) courts

Court of Appeals for the Eleventh Circuit (CA) in Brad Buehrle vs. City of Key West made some relevant conclusions. The case itself was about a tattoo artist being banned from opening a tattoo saloon in a historic city center. CA worked with an argumentation built upon an opinion of other courts (not SC) that the tattoo itself is a protected form of expression while the process of tattooing is not. 

CA concluded that “[t]he First Amendment protects the artist who paints a piece just as indeed as it protects the gallery owner who displays it, the buyer who purchases it, and the people who view it. “ To this, it added that „as with writing or painting, the tattooing process is inextricably intertwined with the purely expressive product. “ CA thus compared writing an essay to tattooing a tattoo where an artist creates the protected piece of art – the tattoo.

The superior court of Madera County (SM) mentioned the above-mentioned case law by connecting probation, tattoos, and freedom of expression. This all occurred in In re Antonio C. vs. The People case. Therefore, it is inevitable that Freedom of expression in the context of tattoos is also relevant to criminal proceedings.

In the case of a child´s criminal conduct, SM prohibited the offender from getting a tattoo and receiving comparable body markings. This probation condition was valid because it was relevant to the criminal conduct. SM concluded that “the state's compelling interest in protecting children justifies the restriction on [offender]'s freedom of expression through body marking. “

Inspiration for Czech legal practice

The conclusions mentioned above might be an inspiration for the Czech legal order. However, the question of whether it is necessary is more important. We may show the (i)relevance of some cases before the Czech Constitutional Court, where the word “tetování”[3] was used (they are relatively rare). 

For example, in IV. ÚS 3362/20 case tattoo was used to identify a suspect in the I. In ÚS 3893/19 case, a tattoo was used for identification of an animal stock (respectively whose the particular animal was). In I. ÚS 2514/17 case, the complainant’s tattoo led to his control made by road police, in II. ÚS 3647/10, a convict´s tattoo, amongst other aspects, was considered as proof of her inclination to an extremist group. In the I. ÚS 651/04 case offender´s (rapist´s) tattoo was only mentioned as one of his visual characteristics, which his victim did not recognize.

These cases might lead to a positive answer to a former question, mainly the one regarding road police control, where the fact that the driver had a tattoo was probably one of the main reasons for it. However, unfortunately, no one of these complainants argued by their freedom of expression; therefore, we do not have a solid ground to build on… maybe that might be the reason to get inspired.

Notes

[1] The syllabus of the case DEPARTMENT OF STATE ET AL. v. MUÑOZ ET AL. is available here.

[2] The SC in the Anderson v. City of Hermosa Beach case made such a conclusion: “We do not profess to understand the work of tattoo artists to the same degree as we know the finely wrought sketches of Leonardo da Vinci or Albrecht Durer, but we can take judicial notice of the skill, artistry, and care that modern tattooists have demonstrated. “

[3] The Czech word for tattoo.

Sources

Bacon, J. (2016, May 18th). Tattoo Rights Inked Into The Constitution: Why Tattoos Are Protected Speech Under the First Amendment [blog article]. Available from: https://uclawreview.org/2016/05/18/tattoo-rights-inked-into-the-constitution-why-tattoos-are-protected-speech-under-the-first-amendment/.

Knappenberger, R. & Reichman, K. (June, 2024). Married couple loses Supreme Court visa appeal over tattoos. courthousenews, com. Available from: https://www.courthousenews.com/married-couple-loses-supreme-court-visa-appeal-over-tattoos/.

Resolution of the U. S, Court delivered on 31st of July 1980 in the case Yurkew v. Sinclair, Civ. No. 4-80-239. Available from: https://casetext.com/case/yurkew-v-sinclair.

Resolution of the U. S. Court delivered on 9th of September 2010 in the case Anderson v. City of Hermosa Beach, No. 08-56914. Available from: https://casetext.com/case/anderson-v-city-of-hermosa-beach.

Resolution of the U. S. Court delivered on 21st of June 2024 in the case DEPARTMENT OF STATE ET AL. v. MUÑOZ ET AL., No. 23-334. Available from: https://supreme.justia.com/cases/federal/us/602/23-334/case.pdf.

Resolution of the Court of Appeals for the Eleventh Circuit delivered on 29th of December 2015 in the case Brad Buehrle vs. City of Key West, No. 14-15354. Available from: https://docs.justia.com/cases/federal/appellate-courts/ca11/14-15354/1108744029.

Resolution of the Superior Court of Madera County delivered on 25th of September 2000 in the In re Antonio C. case vs. The People, No. F034727. Available from: https://law.justia.com/cases/california/court-of-appeal/4th/83/1029.html. 

Robley, H. G. (2008). Maorské tetování. Žďár nad Sázavou: Sowulo Press. 

Walsh, R. J. (2011). Painting on a Canvas of Skin: Tattooing and the First Amendment. The University of Chicago Law Review, Vol. 78 (2011), p. 1063-1100. Also available from: https://lawreview.uchicago.edu/sites/default/files/78_3_Walsh.pdf.

Whitehurst, L. The Supreme Court rules against Californian woman whose husband was denied entry to US. (June, 2024). apnews.com. Available from: https://apnews.com/article/immigrant-visa-spouse-tattoos-supreme-court-4f1c7911a64a60aa60461971f34b5bae.

Decision of the Constitutional Court delivered on 27th of May 2021 f. n. IV. ÚS 3362/20.

Decision of the Constitutional Court delivered on 28th of January 2020 f. n. I. ÚS 3893/19.

Decision of the Constitutional Court delivered on 26th of September 2017 f. n. I. ÚS 2514/17.

Finding of the Constitutional Court delivered on 2nd of June 2011 f. n. II. ÚS 3647/10.

Decision of the Constitutional Court delivered on 21st July 2005 f. n. I. ÚS 651/04.

Photograph

 Just like brush colours the canvas, needle illuminates the skin. Maori mask, author: A.Aruninta, 15th of January, source: Wikimedia Commons, CC BY-SA 3.0.