dissenting.
I dissent. In my opinion, tattooing is “sufficiently imbued with elements of communication so as to fall within the scope of the First Amendment.” State v. Ramsey, 311 S.C. 555, 430 S.E.2d 511 (1993).
*541The majority recognizes that, in determining whether conduct is protected by the First Amendment, the United States Supreme Court inquires whether an “intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those who viewed it.” Texas v. Johnson, 491 U.S. 397, 404, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989).5 In my view, there is no doubt that, in creating words, pictures, or images on the bodies of those who wear tattoos, White is intending to convey a message and the message is likely to be understood by those who view it.
In my opinion, White’s conduct in creating tattoos is a form of art which is entitled to the same protection as any other form of art. If a painter who creates an image on a piece of canvas has created a work of “art” thereby engaging in “speech” worthy of First Amendment protection, I see no reason why a tattoo artist who creates the same image on a person’s body should be entitled to less protection.6 In my view, whether or not something is “speech” protected by the First Amendment cannot focus upon the medium chosen for its expression.7
Although the majority cites several cases which have held that tattooing is not “speech,” those cases were decided in an era when tattooing was regarded as something of an antisocial sentiment.8 As noted in a recent synopsis,
The cultural status of tattooing has steadily evolved from that of an anti-social activity in the 1960s to that of a trendy *542fashion statement in the 1990s. First adopted and flaunted by influential rock stars like the Rolling Stones in the early 1970s, tattooing had, by the late 1980s, become accepted by ever broader segments of mainstream society. Today, tattoos are routinely seen on rock stars, professional sports figures, ice skating champions, fashion models, movie stars and other public figures who play a significant role in setting the culture’s contemporary mores and behavior patterns ...
The market demographics for tattoo services are now skewed heavily toward mainstream customers. Tattooing today is the sixth-fastest-growing retail business in the United States. The single fastest growing demographic group seeking tattoo services is, to the surprise of many, middle-class suburban women. '
Tattooing is recognized by government agencies as both an art form and a profession and tattoo-related art work is the subject of museum, gallery and educational institution art shows across the United States.
“TheChangingCulturalStatusofTattooArt” (http:Zwww.tattooartist.com/history.html); See also Lawrence Muhammed, Tattoo You, Chicago Tribune (Nov. 4, 1997)(recognizing that tattoos have begun to appeal to people from every walk of life, and that, contrary to popular belief, there is no serious health risk involved in getting a tattoo, either. In most tattoo parlors, needles and inks are single-serve, gloves are worn and other utensils are steam/autoclave-sterilized, the same method used by hospitals for surgical equipment).
Consistent with the more modern trend, it is my opinion the process of tattooing is indeed a protectable form of speech.9
Accordingly, since tattooing may be considered speech, it is subject to a higher level of scrutiny than that imposed by the *543majority. As White concedes, section 16-17-700 is, in effect, a “content-neutral” regulation which is subject to an intermediate level of scrutiny, i.e., it will be sustained if it a) furthers an important governmental interest, b) that interest is unrelated to the suppression of free speech, and c) the incidental restriction on speech is no greater than essential to the furtherance of that interest.10 See Turner Broadcasting System, Inc. v. F.C.C., 512 U.S. 622, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994). In interpreting “content-neutral” ordinances, this Court has noted that “[pjermissible time, place, and manner restrictions are justified by a substantial governmental interest unrelated to free speech and allow[ ] for adequate alternative avenues of communication ...” Harkins v. Greenville County, 340 S.C. 606, 613, 533 S.E.2d 886, 890 (2000).
Here, section 16-17-700 effectively provides no alternative avenue of communication; it makes it unlawful for a person to tattoo any part of the body of another person, but provides that “[lit is not unlawful for a licensed physician or surgeon to tattoo part of a patient’s body if in his medical opinion it is necessary when performing cosmetic or reconstructive surgery.” It taxes the brain to. conceive of a manner in which White may practice his tattoo artistry. Even assuming, arguendo, he were to attend medical school and obtain a medical degree and license to practice medicine, he would still not be permitted to exercise his artistry for the purpose of expressing a communicative idea; the statute forbids tattooing unless it is medically necessary while performing cosmetic or reconstructive surgery. The statute is, in effect, a complete ban on any and all tattooing when done for artistic or communicative purposes. In my view, such a complete ban on the right of free speech cannot stand.
Although I agree, wholeheartedly, that the state may stringently regulate tattooing, the present record is insufficient to demonstrate that the restriction on White’s speech is “no greater than essential” to the furtherance of the state’s interest in protecting the health and well-being of its citizens.11 *544Accordingly, I would hold section 16-17-700 violates White’s First Amendment right of free speech.
. Johnson held burning an American flag constitutes speech worthy of First Amendment protection.
. As noted recently in a New York Times article, "Some people buy a van Gogh. Some people buy art by Tattoo Lou. They wear it or they hang it. But it is all art." New York Times; Long Island Weekly Desk, In this Artist’s Hands, Skin is the Canvas (Sunday, July 1, 2001).
. Indeed, it would be ludicrous to suggest that because Michelangelo chose the ceiling of the Sistine Chapel upon which to paint, his renderings are not communicative.
. Moreover, certiorari to the United States Supreme Court was not sought in any of the cited cases, and it appears that Court has never addressed this issue.
. The majority, by its emphasis of the word "process,’' appears to indicate that although the process of tattooing is not “speech,” the end product thereof may be, such that the tattoo wearer may be entitled to First Amendment protection as the conveyor of a message. In my view, this is akin to saying that an author who is paid a commission to write a book by a publisher, or an artist commissioned to paint a rendering, does not engage in speech, but that the publisher, and purchaser of the painting, do engage in speech. I find such an analysis completely untenable.
. White concedes section 16-17-700 meets the first two prongs.
. In fact, as noted by White in brief, some 46 states permit and regulate tattooing, and "[n]ot one reported death has been associated with tattooing in its five thousand year history.”