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COMMOII9TEALTEOF I|ASSACHUSETTS

SUPERIOR COURT
NO.99-1896-8

SIIFFOLK, ee.

STEPtsAII A. IAIIPEEAR
& anotherl
v9.

COMMOI{IIEAIITE OF I,IA.SSACEUSETTS

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CROSS-MOTTODIS FOR SI'IO(AR:T iruDGMENT

INTRODUCTION
- The ptaintiffs,
tattoos,

receive

a tattoo

and a person desiring

artist

seek a declaration

to

the Massachusetts

that

ry
/o-/dz'

?h.Err?.-/,

statute prohibiting tattooing except by qualified physicians is

void

facially
Untied

States

Declaration
parties'
specified
is

of

because it

and article

Constitution

The matter

Rights.

cross-motions
below.

motion

I John R. Parkinson.

is

Amendment to

First
16 of

of

of

the

defendant

the

For the

court. on the
reasons

Stephan A.

the plaintiff
is

the

the Massachusetts

now before

summary judqrnent-

for

the motion

AJILOI|ED and the

the

violates

DENIED.

Lanphear

E
- f /. F t: ,
/L&'r
19
/y'-4''d
,l.J*.
/9
/*'

BACKGROT'ITD
are

The facts

Stephan A'

The plaintiff,

He is

Massachusefts.
york

is

practice

l-icensed

as a tattooist

works.

The plaintiff,

where he currently

(parkinson),

to

a resident

of

from Lanphear

Massachusetts
being

without

receive

tattoos

state.

Massachusetts has a statuter

G.L'

c'

not

are

(Lanphear),

Lanphear

who wishes

artist

tattoo

winning

and they

complicated

not

is
his

in

dispute.

an awardbusiness

in

City

of

by the

New

John R. Parkinson
who desires
to

reguired

to
leave

the

265, S 34,2 which

states:
as a qualified
Whoever-, not being registered
marks the body of any person by means
physician
be punished by a fine of not more
shall
of- tattooi.rg,
for not
or by imprisonment
than three hundred dollars
more than one Year' or bothcontend

The plaintiffs
currently

practices

Massachusetts
except

is

by a health

tattooing

only

one of

care

that

no Massachusetts

as an art
five

states

professi-onal ' I

physician

form and that

which prohibit
This

is

the

only

tattooing
statute

2c.L. c. 265, S 34 was first

enacted in 1957 and originally
of a person under 18 years of age-' . St '
only tattooing
prohibited
1957,c.75.Itwasame''ded:.nl-g62toitscurrentform,which
St' 1962' c' 2I4'
of any person'
tattooing
prohibits
3South Carolina permits tattooing
only by a licensed
Oklahoma only by a
(
S
.
C
.
A
n
n
'
S
1
6
1
?
7
0
0
)
;
C
o
d
e
physician
Ann'
i'licensed practitioner
of the heaLing arts-- .(okla' stat'
o
r
d
entist
p
h
y
s
i
c
i
a
n
}
i
i
e
n
s
e
d
a
b
y
only
2!, S 841; Florida
tit..
(Fla. stat'
Ann'
s
u
p
e
r
v
i
s
i
o
n
h
e
r
g
e
n
e
r
a
l
o
r
h
i
s
u
n
d
e
r
or persons
c
are
h
e
a
L
t
h
"
r
y
"
1
,
f
r
e
d
only by certai!
s 877, 04 (1) i Connecticut
'
1
9
a
9
2
a
(
b
)
)
A
n
n
'
S
S
t
a
t
'
(Conn. Gen.
orofessionals

in
not

governing

Massachusetts

charges

any criminal

facing

Lanphear is

The plaintiff

tattooing.

statute.

this

viol-ating

for

DISCUSSION

for

In order

an actual

Even if

plaintiff

must demonstrate

Indep.

controversy

that

and Brokers,

Ins,--Aqents

for

must exist

between the

v.

legal

requisiie

of

Assoc'

Massachusetts
Inc.

particular

the

controversy,

he has the

resolution.

its

secure

to

a petition

entertain

an actual

is

there

parties.

standing

to

court

this

retief,

declaratory

Judgment

Declaratory

for

Standard

1.

commissioner

Ins.,

of

3?-?

Mass.2go,2g2(:-977)(internafcitationomitted).The
the

that

contend

plaintiffs

act

of

tatLoos

and wearing

creating

areformsofexpressionprotectedbytheFirstAmendmenttothe
united

Declaration

protected

transcendent
exercising

those

aIl

that

prosecution

"Because of

P.ights.

of

constitutionally
required

and article

constitution

states

to

value
their

alL

to

rights

495 U.S. 103, 115 n.

expression,

subject

their

test

the

to

Court

Ithe

For free

soclety,

and not

has]

merely

loser"'

12 (1990), as quoted in

risk
-

expression
to

of

not

regulation

overbroad

be the

nature

sensitive

rights'

might

the Massachusetts

16 0f

of

those

Osborne v'
Benefit

v'

Cambridqe,424Mass.918,g2I(1997)'Declaratoryreliefis
appropriateherebecause.'thematterinvolves.thepossible

ohio'

for

the

a criminal

of

enforcement

of

Prevention

408 (1981),

quoting

to Animals,

Crueltv

Mobil

Corp. v.

Oil

Massachusetts

Soc'\

12 Mass, App. Ct.

401,

Knox v.

statute."'

361 Mass'

Gen.'

Attorney

401, 405 (1.9't2).

'In

prosecution

is

question,

in

statute

protected

by the

standing

requisite

does not

however,
that

he performs

if

he desi.res

receive
other

tattoos
to

states

have standing,
in

contention

to

request

practice

in

Massachusetts

the

receipt

sense that

not

threaten

and there

is

upon by the
pl-aintif

of

in

a person

this

the act
display

of

that

tattoos.

case.

in

tc

to
ir

question,

but

of

his

are

the

neither

The statute
criminal

with

does not

traveJ

Bonan v'

tattooing,

any rights

He therefore

to

be significantly

The statute
of

to

the matters

in

point'

contested

it. alleged

a plaintiff

for

will

such as Parkinson

no allegation
statute.

the

Parkinson,

opportunity

interest

rights

his

320 (1986) .

nor the

tattoos

of

the

be required

order

he must have a definite

265, S34, prohibits

c.

fn

is

nor

artist,

and not

tattoos.

receive

has the

judgment.

what he wants is

do so.

he contends

that

He therefore

as a tattoo

by the

prohibited

conduct

a dec]aratory

to

M a. ,s s . 3 1 5 ,
9@
8 @
@ @ @ @ @3@
G.L.

involves

criminal'

is

which

trade,

his

Amendment.

First

with

threatened

and which

by a resolution

affected

is

Lanphear

case,

this

does

prosecutior
infringed

have standing

as a

Is Tattooing
funendment?

2.

The United

States

many forms

of

"Constitution

supra at

Partv

(1977 );

632, 642 (1943);

v.

because

..the person

express

an idea,"

(1958).

No articulabte

constitutional

devoid

of

ideas'

take

v.

swastikas.

EelgClle,

of

lgitec!--.1!$gg

with

of

conduct
O'Brien,

Hurfev'

communitv

or refusj-ng to
319 U.S.

624,

CaLiforr:ia,
al-so
schad

or otherwi-se.

speech simply
intends
391 U'S'

message is
suDra at

entertainment

43-44

66 (1981) '

quality

or particularized

protection.
but

v.

43,

the humanbody is

nude, dancing,

j-n the

parades'

include:

Des Moines rndep.

Educ. v.

on the

engaging

The

S - I . g - b . i - C4. t3 2 U - S -

v.

Borouqh of Mount Ephraim, 452 U.S. 6I,

does not

are

and Bisexual-

Gav, Lesbian

Exhibition

whether

expression,

Conduct

of

conducL that

dispJ.aying red fl-ag, Stromberg v.

283 U.S. 359, 359 (1931).

Amendment

speech.

and displaying

Tinker

West Va. Bd. of

a flag,

protected

First

393 U.S. 503, 505-506 (1969)i saluting

Sch. Dist.,

the

spoken words as mediums of

conduct

America

of

an armband.

wearing

of

First

569 (1995) . Example-s of

symbolic

569; marching

Socialist

National

or

Irish-American

protected

constitutionally

salute

v.

Hurley

the

be deemed symbolic

Bo.ston, 515 U. S. 557.

Group of

Hurlev,

to

of

courts

of

forms

including

beyond written

fooks

expression".

protections

the

expression

expressive

sufficiently

and the

Supreme Court

Commonwealth have applied

to

by the

SynboJ.ic Speech Protected

value

to

thereby
361,

316

a condition

569' *[E]xpression
may

' be

protected

because
is

entertaining

between the

line

of

First

of

programs,

supra

Schad,

works.

at

drawings,

encompasses paintings,
Kapl-an v.

413 U.s.

California,

also

Amendment protection

First

55.

engravings,

forms

alL

and dramatic

such as musical

entertainment,

and live

to

and teLevisi-on

radio

pictures,

(1948)'

507,510

extends

Amendment protection

such as motion

entertainmenL,

Siqma Chi

of

993 F.2d 386, 390 (4th cir.

1993), quoting Winters v- New York. 333 U'S'

The uinbrellb

and the

informing

IOTA XI Chaoter

elusive-"'

too

Georqe Mason univ.,

v.

Fraternitv

rIt]he

works'

and printed

115, 1'79-L20 (1973) '

It

appears

beyondargumentthatthedrawnimageisprotected,whetheron
paper,metal.canvas'orsomeotherinanimatemedium.Theissue
is

an image drawn on skin,

whether
to

entitled

First

a tattoo'

is

speech

symbolic

Amendment protection'

Tattooingisanancientartformwhichhasbeenpracticedin
virtualJ-y

every

culture

murunies have been found

Egypt,

Libya,

man found

Asia,

frozen

for
in

of

thousands
al]

parts

of

and South America'

and perfectly

preserved

Tattooed

years'a
the

world

A five
in

including

thousand

year

old

between

the mountains

ItalyandAuStriaboresevera].tattoos.Incontemporarytlmes
tattooing

became the

domain of

a more limited

segment of

society

.'Body Art: Marks of Identity,,

opened
a An exhibit
entitled
in
Y
o
r
k
N
e
w
i
n
H
i
s
t
o
r
y
N
a
t
i
o
n
a
l
o
f
at the American Museum
in various
practices
November of 1999 a.,a expfored body art
over three millennia'
cultures

Iast

steadily

cultural-

decades the

several

and is

evolved

status

Hiding

Over the

tattooing

of

by a broader

now accepted

See Mark C. Taylor,

society.

activity.

viewed as an anti-social

and was frequently

has

segment of

(University

Chicago

of

Press, L99t) .
Today,
industry

in

purchased
Persons

form

of

to

museum, gallery,
United

States.

tattooing
of

tattoos

tattoo
City

art

Itattoos]
is

art

as a weII-established
has been described
in

entitled

Drawings

and cultural

for

"Pierced
Tattoos".

Hearts
"Much of

cannot be articulated

every artwork

to

its

creaLor

the

form.

political

subject

of
tl

journa]-s'

Professional

reference

other

shows across

art

books recognize
i-mportanr

The artistic
for

an exhibition

Drawing center

and True Love,

the

States.

and to
is

artwork

i-n the catalog

1995 sponsored by the

most commonly

United

institution
n.4.

infra

the

retaif

be the

to

beliefs,

related

and educational
see, e .9.,

growing

commitment io

religious

Tattoo

magazines

newspapers,

work in

demonstrate
to

and personal- beliefs.

fastest

believed

art

original

tattoos

sixth

and is

institutions,

to

the

countrys

the

obtai.n

persons,

is

tattooing

in

New York

a Century

of

symbolism or meaning of

and is

private

or collector.

to

the wearer,

By willing

it

aI
to

5T h e s i n g l e
growing demographic group seeking tattc
fastest
services is middle class suburban women. Hoag Lewis, a 1998
"The Changing Cultural, Status of Tattoo Art"
synopsis entitled'
- com/history. html ) .
( h t t p : / w w w .t a t t o o a r t i s t

beplacedonthebodythetattoocollectorlitera}lybecomesone
withtheart.,,Themediumonwhichthedrawnimageappearsshould
"speech";
whether somethlng is
when determining
not be relevant
the

symbolic

is

itself

tattoo

of

speech deserving

Amendment

First

prote'ction.'
Law c .

General
tattooing.

Therefore,

"the

process

actual

tattoo

conveyed by the
of

elements

of

issue

cruciaf

the

tattooing,
itself,

is

to

fal-l

communication

the

only

265, S 34 prohibits

in

this

case is

whether

image

as opposed to

the

'sufficiently

imbued with
the

scope of

the

within

of

act

actual

First

Amendmeat.---"'Yurkewv'Sinclair'495F'Supp'7248'
1,253 (D. Minn.

images and is
None of
jurisdictions
whether

the

People v.
hefd,

in

creative

act

of

the
in
act

the

from the

of

display

actual

the

tattooed

sPeech'

not

from other

cases the Commonwealth cites

which courts
of

tattooing

O'Sullivan,

without

that

distinguishable

is

tattooing6

The Commonwealth contends

Amendment analysis,

First

of

context

1980).

the

have addressed
is

"speech"

is

question

persuasive'

4 0 9 N ' Y ' S ' 2 d ' 3 3 2 ' 3 3 3 ( 1 9 7 8 )'

any discussion

whatsoever'

that

of
In

the court

"we do not

deem

6ceneraf Law c. 265, S 34 does not define the word

"tattooing"
as
defines
..tattooing.,,
The Random House Dictionary
patterns,
. . t h e a c t o , p . " " i i c e - " t t 'o, f m a r k i n g t h e s k i n w i t h i n d e l - i b l e
it and inserting
by mafing picturg"
l-eqenaJ,
1t
pictures,
English language
t
h
e
o
f
rne Random iouse Dictionary
pigments."
1 9 4 6 ( 2 n de d . 1 9 8 7 ) '
o

speech or

[tattooing]
cited

turn

conclusion

by Yurkew as the
"[w]herever

that

between protected

exists

the

Yurkew,

line.,,

of

because

Yurkew j-ntends

to

process

does not

the

Another
Licensinq
only

Id.

with

tattooing

is

v.

issue

this

the

"amorphous line"

Yurkew made

that

"merely
tattooing

through'the

Q1BI!4.

as speech

tattoos

protected

by the
375'

at

391 U'S'

Bradv, 492 N.E.2d 34, 39 (1986), cites

observation

its

have found that

court

the

even symbolic

simply

tattooing

that

in

and held

a level

side

Commonwealth' Medical

by the

speech nor

neither

analysis,

yurkew stating

1254, citing

at

and Yurkew in

o, sullivan

further

Ind.

Bd. of

to

conduct

of

First

for

unprotected

The court

an idea

express

submitted

case

presented

the

raise

on the

display

as conduct,

tattoos

creation

Amendment."

1253-

at

demarcation

of

conduct

falls

between the

and the

First

amorphous line

E!p!g

distinction

bright-Iine

the

tattooing

Amendment purposes
of

authoritative

its

for

supPort

sole

and unprotected

case was in

This

speech."

even symbolic

falls

agreed with
on the

between protected

that

"all-

process

courts

of
liithout

speech."
the

language rn
side

unprotected

of

conduct'

and unprotected

rd.
Finally,

in

Stephenson v.

1L0 F.3d L303 (199?),

plaintiff,
"It]he

s First
tattoo

is

the court

Davenport Communitv Sch'

dismissed

Amendment argument with

nothing

more than

in
the

a footnote
observation

'self-expression,'

Dist''
the
that

unlike

of

forms

other

or

expression

was protected,

tattoo

rather

"self-expression"

referenced

plaintiff's

the

There

process.

tattooing

between

distinction

the

for

basis

no rational

appea,rs to be

the

than

the

artistic

Stephenson and protected

in

the

case'

that

of

display

the

whether

with

was concerned

court

In

4.

130? n.

-I-d=at

amendment protections."

first

receive

which

conduct

expression.
IftheactoftattooingisdistinguishableinFirst
Amendment analysis
should

distinction
act

painting

of

paintings,
the

Star

true

of

and Tribune--ep-

575,582-583
the

burdens

more.

It

fol-Iows

then

forms of

expression:

then

a tax

the

Amendment.

regulation

right

to

the

see Minneapofis
460 U'S'

Revenue'

on the purchase of

implicate

has

press

used by the

Comm'r of

the press,

that

from

The supreme court

product.

First

the

of

display

from the

on paper and ink

would seem to

process

printing

the

same

tattoos,

newspaPers distinguishable

Minnesota

If

freedom of

of

by the

v.

(1983).

other

for

printed

the
a tax

that

of

display

be dist.inguished

protected

rights

burdens

hold

printing

and the

however,

the

should

dissemination

held,

from

of

ink

and paper

actuaf

the

Amendment even

First

disseminate

protected

speechwouldbeworthlessiftherighttocreatethespeechin
the

first

a tattoo

place
is

were not

intrinsically

protected'

equally
part

of

art.

1 n

The act

the expressive

of

content

creating
of

the

the

the

process

tattooing

and is

of

by the

protected

Constitution

16

and article

of

Any regulation

Rights.?

constitutional

comply with

therefore.

must,

from the

inseparable

expression

States

United

is

tattooing

Declaration

Massachusetts

the

of

act

itself

tattoo

Amendment to

First
of

the

of

display

the

that

conclude

requirements.

More
Does G.L. c. 265, S 34, Burden Substantially
the -commonweal.th's
speech than rs Necessary to Further
fnterests?
Legitinate

3.

now to

turn

265, S 34,

to

regard

without

if

governmental
the

than

is

.it

essential

to

the

Broadcastjnq-vs!e$---J.&quoting

QLB5!en,

suPra

at

and if

of

that

v- FCC, 512 U's'

c-

[A]

will

be

substantial

the

Amendment freedoms is

furtherance

expresslon]
or

expression;

First

on alleged

protected

G.L.

tattooing

tattoo'

governmental- interest

the

free

agree that

the

form of

prohibitinq

statute

prohibits

it

is,

an important

if

of

or

Iof

furthers

interest;

suppression

restriction

content

the

regulation

content-neutralsustained

that

content-neutral;

is

the

whether

The parties

is_ unconstitutional.

tattooing

to

of

an analysis

is

unrel-ated

incidental
no greater

interest."'

Turner.

622, 662 (1994)'

377

7A violation
of the First Amendment to the United SaLes
16 of
of articfe
constitutesr
Constitution
P - . ES , a v i o l a t i o n
v
'
S
c
h
o
ol
H
o
s
f
o
r
d
R
i
g
h
t
s
'
o
f
D
e
c
f
a
r
a
t
i
o
n
the Massachusetts
(1996) '
5
1
1
'
2
n
'
7
0
8
,
M
a
s
s
.
4
2
I
o
f
S
a
n
d
w
i
c
h
,
Committee
11

three

The Commonwealth has identified

operation

of

spreading

disease

adverse

tattooing

to

agrees

The plaintiff

the

tattooing,

and the

to

question,

therefore,

is

is

necessary

interests."

Turner

more speech than

substantially

legitimate

government's

at

sgra

statute

the

whether

'

and

The remaining

"burdens
to

the

further

system'

Broadcastinq

Rock Aoainst

Ward v.

662, quoting

tattoos

important

expression'

free

of

of

possibility

are

interests

these

that

of

receiving

by people

inks

suppression

unrelated

Inc.,

the

tattoo

sanitary

possibility

establishments,

through

reactions

general

the

it.s citizens:

of

health

the

re]_ated to

interests

ltovernmental

Racism,

491 U.s.

781, 199 (1989).

through

as a concern

understood

due to

tattooing

of

djsease'

by the

expressed

two concerns

The first
generalty

and the spread

Sanjtation

a.

commonwealth can be
will

disease

that

the

and/or

conditions

unsanitary

be spread

tattooingprocess.overtheyears,therehavebeenindividual
cases or outbreaks
associated

with

of

diseases

viral

as well

tattooing,

as staphy.lococcus,

syphilis,

has been a concern

that

transmission

The primary
of

hePatitis

as bacterial-

could

tattooing
of

concern

HIV transmission

B and C'

L2

infections

spread HIV'

has been the

B and C

Although

and tuberculosis'

been no documented incidents

tattooing.

such as hepat'itis

there

through

documented

such
there
have

such as in

in

infection

Commonwealth,

draw b.Iood from

in

are

individuals,

people

who are
or

the
of

acceptablt
which has
b'

regulated

not

is

regulated

not

to

reduc&

tat.tooing,

and phlebotomists,

risk

the

body piercing,

that

note

inherent

those

is

settings

ban is

with

that

below,

as described

to

to

a complete

and that

broken,

however,

He contends,

The Commonwealth admits

and dental

is

can be minimized

regulation,

instructive
to

simila-r

process.

barrier

skin

procedures.

precautions,

medical
is

It

levels.
risks

through

universal

use of

the

wherever

such as

diseases

tattooing

the

transmission

disease

justified.

not

therefore

the

of

levels

acceptable

present

and medical

dental

risk

the

that

is

risk

this

Indeed,

for

possible

is

through

be transmitted

to

hepatitis

it

that

concedes

Lanphear

engaged to
by thr

Jicensed

Corunonwealth.
precautions

Universal
processes

as multiple
The use of

diseases.
of

disposal
to

states

gloves

risk

of

the

and the

spreading
is

and other

infection.

to

contaminated

where tattooing

sterilizatiOn
of

barriers

potentially
the

minimize

invol-ve the

See, e.g.,

use of

and/or

sterilization
for

equipment,

the

example,

to

hel-

In

pathogens.

law generally

precautions

universal

infectious

spread of

blood-borne

regulated,

equipment and

requires

reduce the

risk

N.H. Code Admin' R' He-P 1103'01-

1103.02(1995).Regulatingtheqeneralsanitaryconditionof
tattooing

establishments

would also

-LJ

reduce the

risk

of

i-nfection

commonwealth concedes that

similar

are

establishments

shoPs and restaurants

barber

the

risks

in

nature

tattooing

from unsanitary

with

associated

those

to

the

procedures'

non-invasive

than

infection

of

risk

higher

has a

and therefore

procedure

an invasive

is

tattooing

Although

'

TheCommonwealthagreesthatunregulatedtattooingposes
greater
G.L.

risks

health

public

has been in

265, S 34,

weapon to

an effective

Commonwealth; there
trede,

tattooing

is

unregulated

evidence

of

without

Although

tattooinq'

been

has not

it

decades'

for

effect

prevent

operating

regulated

than

in

tattooing

the

illegal

a flourishing

anc

whatsoever

any regulation

incidentsofenforcementarefewandfarbetween.sThecurrent
has promoted

ban on tattooing

an underground

wit

industry

tattoo

nocontrolswhich,inturn,hascreatedincreasedhealthriskst
tattoos

of

recipients

in Massachusetts'

Hampshire and Rhode lsland

and tattoo

Tattooing

artists

is

in

legal

Ne

have established

businessesneartheMassachusettsborderinanapparenteffortt
attract

from the

clients

Commonwealth'

TheCommonwealth,sconcernsforthewelfareofitscitizeni
are

important

sufficiently
required

and substantial'
addressed

use of

through

universaf

However' these
Iicensing

precautions'

may be

and regulation'
and sanitary

o.f attempted
I I n f a c t , only one incident
a
t
t
e
n
t
t
on'
c
o
u
r
t
'
s
t
h
e
been brought to
L4

concerns

the

tattooing

enforcement

has

does not
the
just

,over the

Massachusetts

may not

infection

Thus,

tattooing
G.L.

c.

than

that

265,_S 34,

violates

physicians

necessary

to

the

b.
The third

of

to

regulation

degree

Commonwealth's
and infection,

disease

of

free

and

expression.

inks.
the

Commonwealth, that

The United

(FDA) considers

the

in

violations

a greater

to

tattooing

to

reactions,

may cause adverse

evidence.

Administration
and subject

the

and

662,

supra at

concern

of

restrlcting

that

protections

constitutional-

reactions

tattooing

by anecdotal

spread of

Adverse

risk

phlebotomy,

expression

further

located

or

and criminalizing

free

Broadcastinq,

See Turner

concludes

restricts

preventing

in

therefore

used in

is

which

court

of

Commonweafth has deemed

the

body piercing,

to

the

qualified

to

which

levels

respect

with

acupuncture.

interest

to

the

ban

can be reduced

it

avoided.

statutory

themselves

i1legaIly

Although

border.

completely

the

niay avail

operating

be completely

regulation

acceptable

artists

not

tattoolng,

because citizens

taLtoo

of

with

associated

do so either,

services

through

risks

the

ameliorate

these measures will-

Although

establishments.e

States

tattoo

as cosmetics,

is

inks

or dyes

supported

only

Food and Drug

inks
but

to

be coLor

has not

additives

approved or

eThe Massachusetts Department of PubIic Health (DPH) has

scheme that would
the cost of enacting a regulatory
investigated
as used in other
artists.
of tattoo
allow the regulated practice
The DPH concluded that the cost would be $100,000 for
states.
year and $50,000 for each year thereafter.
the first

15

prohibited
Although
maintains
database

reported

tattooing

inks.

year.

reactions

Marilyn

Larkin,

is

are,

the

not

addresS the

is

is

except

whether

to

statutory

of

risk

the

be "minimal"'
Requires

Art

whether
they
by

ban on tattooing

aboUt adverse

Care

risk

determj-ne

more burdensome than

Commonwealth's concern

each

was reported

Assuming that

legitimate.

the

substantially

to

FDA

the

1995, this

The degree of

1993).

are

to

Ancient

90's:

however,

material,

question

non-physicians

the

the

in

Tattooing

inks

from tattoo

injury

Commonwealth's concerns

the

to

or

FDA Consumer (Oct.

and Caution,

FDA describes

publj_shed by the

place,

reactions

adverse

of

1996 and 199?, one incident

In

adverse

In

consumer complaints.
incidents

three

Literature

involved

of

a database

in

system

reporting

no mandatory

is

there

tattooing'

dyes for

any particular

use of

the

necessary

is

reactions

to

ink.
The answer is

in

clearlv

or other

are

prone co causing

the

commonwealth may regulate

discl-osure

require
complete
about

allergic

of

speech than
See Turner

is

reactions
necessary

Broadcastinq'

inks

to

adverse

to
to

the

ink

address

tattooing

burdens
the

supra aL 562,

I O

inks

certain

then

reactions,

or

used i-n tattooing'

by non-physicians

ban on tattooing

adverse

the

risks

the

If

the affirmative'

consumers.
to

resolve

substantially

A
concerns
more

Commonwealth's interest'

Amendment to
G. L. c. 265 ' S 34 , Vio-lates the first
and artic-le 76 of the
United States Constitution
Decl.aration
of Rights,
Massachusetts

4.

Even where the

interests

that

are

to

speech,

regulation

of

speech such as G.L.

maintained

if

it

is

to

necessary
at

supra
662.

G.L.

licensed
burdens

does not
address

Ward,

377i
c.

expression.

the

265, S 34, can only

Commonwealth's interests.
'l

at

99; Turner

is

is,

to

therefore,

-W.Ea at

Broadcasiino,

except by

tattooing

and unduly

constitutionalLy

protected

unconstitubional.

Lanphear seeks decl-aratory

and under 42 u's.c-

O'Brien,

overbroad

substantially
right

be

more speech than

substantiaJ-Iy

Fees

4 2 U . S . C . S - 19 8 3 a n d A t t o r n e y ' s

5.

statute

c.

a content-neutral-

265, S 34, which prohibits

plaintiff's
It

burden

supra

physicians,
the

governmental

Commonweal"th has }egitimate

unrelated

judgment both

s 1983 (s 1983).

courts

is

settl-ed that

under S 1983.

is

avail-able

See, e-9.,

Steffel

v.

T h o m p s o n , 4 1 5 U , S . 4 5 2 , 4 15 ( I 9 ' 7 4 )

& Citv
(calling

Council

that

relief.").

not a "person"

judgment under S 1983); Chertkof

BaLtimore,

"settled"

declaratory
is

of

within

federal

rt

state

relief

declaratory

in

under the

declaratory

(permitting

the

v.

Mayor

497 F. Supp. 1252, 1-256 (1980)

S 1983 is

"an appropriate

The Conmonweal-thargues,
the meaning of

1 a

vehicle

for

however,

that

S 1983, and is,

it

not

therefore,

in vlill, v.

clear

(1988),

are

damages under S 1983.1r

the

past,

Deot. of

Michigan

states

that

in

issue

has wavered on the

subject
v'

Feliciano

See also

491 U.S.

Police,

state

not "persons"

made

Supreme Court

the

'7
I

58,
for

liability

to

it

Although

statute.r0

the

under

suit

to

subject

846 F'

Dubois,

Supp.1033,1043-1044(D'Mass.1994).Therefore,Lanphear
cannot

any award of
v.

this

maintain

action

attorney's

State Bd. of

under s 1983 and is

fees under 42 U.S.C.

2I

Educ. of N.C.,

Educ. of

entitfed

not

to

s 1988. S-1 and S-2

F.3d 49, 51 (4th Cir'

1 9 9 4)

ONDER FOR .'T'DGMENT

For all
motion

of

the

the defendant,

sunmary judgment
Parkinson,
the

motion

and is
of

the

is

corunonwealth of

A L L O V I E Da s t o

otherwise
plaintiff,

the

DENIED.

hereby

is

it

reasons,

foregoing

Massachusetts,

plaintj'ff'
It

Stephan A'

O R D E R E Dt h a t

is

further

Lanphear'

th,

for

John R'
O R D E R E Dt h a t
is

ALLOIIED' It

of his civil
10 ..Every person who [deprives an individual
a
n
action at law
i
n
i
n
j
u
r
e
d
p
a
r
t
y
t
h
e
t
o
l
i
a
b
l
e
b
e
s
h
a
l
l
ri-ghtsl
42
r
e
d
r
e
ss"'
f
o
r
p
r
o
c
e
e
d
i
n
g
or other proper
in equity,
suit

u.s.c. s 1983.
rlLanphear, s contention
that he resolved any issue about
"person"
by adding the Attorney
whether the Commonwealth is a
The Supreme Cour
merit '
w
i
t
h
o
u
t
i
s
p
a
r
t
y
d
e
f
e
n
d
a
n
t
Generat as a
heldinWillthat..neitheraStatenoritsofficialsactingin
v'
under S 1983'"
[f,L
are 'persons'
capacities
official
their
(1988)'
7
L
5
8
'
U
'
S
'
4
9
1
P
o
l
i
c
e
,
S
t
a
t
e
Michioan Dept. of
18

is

further

ORDEREDthat

265, S 34, void

States

as violative

Constitut.ion

Declaration

of

judgment
of

and article

shall
the

enter

First

16 of

the

declarinq

Amendment to

G.L. c.
the

Unitec

Massachusetts

Rights.

Dared:ocroberfil

Barbara
Justice

rooo

19

J.
of

Superior Court