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Abstract

What level of First Amendment protection should we afford tattooing? General public consensus formerly condemned tattoos as barbaric, but the increasingly diverse clientele of tattoo shops suggests that tattoos have become more mainstream. However, the law has struggled to adjust. The recent proliferation of municipal near-bans on tattooing has brought tattooing to the forefront of First Amendment debates, with cases such as Anderson and Coleman leading the way toward recognizing tattooing as pure speech. Tensions between formal and informal copyright norms in the tattoo industry further highlight the collaborative and expressive nature of the artist-customer relationship and its resulting products, revealing a need for more robust First Amendment protection. This Note examines the three primary schools of thought in First Amendment–tattoo jurisprudence and advocates for full speech protections for tattooing by requiring courts to apply strict scrutiny to all content-based speech regulations. This approach would better align with existing informal copyright norms by encouraging further creation of expressive speech and avoiding subjective judicial inquiries.

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