Is Tattooing Expressive Conduct That Qualifies as “Symbolic Speech”?
Was the South Carolina court right? What exactly counts as expressive conduct that amounts to “symbolic speech”? Of course, all conduct may be expressive to some degree. However, the U.S. Supreme Court has expressly rejected “the view that an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea.” A decision to the contrary would bring virtually all behavior within the scope of the First Amendment. Instead, the Court has emphasized that, to count as symbolic speech protected by the First Amendment, the “expression must be sufficiently imbued with elements of communication.” The South Carolina Supreme Court, in holding that tattooing did not qualify, emphasized the nature of the tattooing process, which it described as a purely mechanical process of injecting dye – not an expressive process. The court also stressed the medium: the human body. Because tattooing involves potentially unhealthy invasion
