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Fear of ink

Anti-tattoo regulations in Boston and Somerville violate the free-expression rights of artists and their customers

WHEN MASSACHUSETTS SUPERIOR Court judge Barbara Rouse overturned the state’s 38-year-old ban on tattooing last October, she issued a strong affirmation of free-speech rights. " Tattooing is an ancient art form which has been practiced in virtually every culture for thousands of years, " she wrote, noting that people " obtain tattoos to demonstrate commitment to other persons, to institutions, to religious beliefs, and to political and personal beliefs. " She added that the ban violated both the federal and state constitutions, asserting: " I conclude that the act of tattooing ... is expression protected by the First Amendment. "

But free speech, like any right, isn’t worth much if government regulates it with such a heavy hand that it becomes difficult if not impossible to exercise. And that’s exactly what is happening in Boston and Somerville. As freelance writer Loren King reports this week (see " Beating the Tattoo, " News and Features), officials in Boston and Somerville have erected high barriers to tattooists who wish to do business in commercial districts. Instead, body-art parlors in these cities are restricted to industrial zones — out-of-the-way, often seedy areas with little foot traffic and, thus, with little appeal to either artists or customers.

Such tactics would appear to be a direct violation of Rouse’s ruling, which makes it clear that tattooing may be regulated only for health and safety reasons. Her decision notes that even state officials who fought to keep the ban conceded that " the risks from unsanitary tattooing establishments are similar in nature to those associated with barber shops and restaurants. " But Boston, Somerville, and several other communities — including Salem, Lowell, and New Bedford — are using zoning regulations, rather than health codes, to deny tattoo artists and customers their First Amendment rights.

These burdensome regulations, which treat tattooing establishments as though they were storefront check-cashing operations or pawnshops, are based largely on misconceptions. Tattooing has become a legitimate, mainstream form of art and self-expression; you’re as likely to see a tattoo on a middle-aged accountant’s ankle as on a biker’s biceps. Yet Somerville alderman Bill Roche cites bygone images of Boston’s rough-and-tumble Scollay Square as justification for his city’s restrictive policy.

Worse, the zoning restrictions are an open invitation for narrow-minded residents to deny other people their free-speech rights: tattoo parlors may do business in a commercial district only if they are able to win an exemption from zoning boards, a process that involves public hearings. Boston officials actually boast that the process will allow local activists to decide whether they want tattoo parlors in their neighborhoods. But the First Amendment should never be subject to the NIMBY-minded whims of others. For instance, Fat Ram’s Pumpkin Tattoo was able to win local support in order to open for business in hip, arty Jamaica Plain. But if tattooists want to hang their shingles in more conservative areas, such as Allston or Hyde Park, they could be at the mercy of the most retrograde elements of the neighborhood.

Officials in Cambridge and Brookline, to name two communities, have shown that it’s possible to respect people’s constitutional rights. Both of these municipalities have decided to allow tattoo parlors in commercial districts; neither has been threatened with the emergence of a latter-day Scollay Square. In Cambridge, just one tattoo establishment has opened for business: Chameleon Tattoo and Body Piercing, in Harvard Square’s Garage mall. As Cambridge’s chief public-health officer, Harold Cox, says, " There was no stampede. There is no zoning issue in Cambridge. Tattooing is nothing to be afraid of. " And Brookline, despite its nonrestrictive zoning, has yet to attract its first tattoo parlor. Farther from Boston, Quincy (the scene of a body-piercing squabble several years ago), Springfield, and Provincetown have allowed tattoo parlors to open in commercial zones since February, when a temporary stay on tattooing was officially lifted.

Sadly, a return to court may be the only way to guarantee the free exercise of the right to give and receive tattoos. Both Sarah Wunsch, a staff attorney at the ACLU of Massachusetts, and Tom Lesser, a noted First Amendment lawyer in Northampton, say it may be necessary to sue cities such as Boston and Somerville in order to overturn their unconstitutional regulations. Wunsch speaks of how difficult it would be to sue on a community-by-community basis. But perhaps the ACLU could consider bringing a broader action by charging discrimination. After all, operating a tattoo parlor is not a highly lucrative business. As it stands, restrictions that make it difficult for tattooists to do business in commercial districts force them to spend money they don’t have on legal fees — a technique that in itself may be unconstitutionally discriminatory, aside from the free-speech issues.

The much-preferred alternative would be for city officials to wake up, respect Judge Rouse’s decision, and promulgate reasonable regulations based on legitimate health and safety concerns — not on fear and prejudice.

Contact the office of Boston mayor Tom Menino (617-635-4500 or and Somerville mayor Dorothy Kelly Gay (617-625-6600 ext. 2100 or to let them know you don’t appreciate their cities’ anti–First Amendment policies regarding tattoo parlors. Tell them to get zoning officials off tattoo artists’ backs and to rescind any regulations that don’t pertain directly to health or safety.

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Issue Date: August 16-23, 2001

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