1. Criminal case where White has a loss of liberty
a. Fundamental values are colliding
i. White is going to be put in jail for doing what he says is permitted and protected by the First Amendment
2. Court looks to see if tattooing sufficiently communicates a message
a. Is this conduct that is meant to convey an idea that the audience will be able to understand?
b. Burning a draft card is not protected conduct
c. Burning a flag is protected conduct
3. So, does the act of tattooing fall closer to draft card burning or flag burning?
4. Does a tattoo artist communicate?
5. Dissent argued that tattooing is protected free speech
a. Then, the analysis can shift to whether the state statute is appropriate under strict scrutiny
i. The statute basically silences the tattoo artist
6. Distinction between tattooing and painting is the medium
a. In one case, the medium is inanimate – the canvas
b. In the other case, the medium is animate – the body
7. Does the difference in medium make a legal difference?
8. Two tattoo artists
a. A requires the client to give him complete artistic freedom to create
b. B will only work off of a blueprint or sketch and will not add anything to the design
c. Everyone believed that both artists have equal First Amendment rightsi. They’ve decided to be artists and get to decide how to use their talent