OCEAN CITY — A federal lawsuit filed by a Boardwalk street performer over alleged First Amendment rights violations officially ended this week with Ocean City agreeing to a consent decree allowing certain performers or vendors to sell their wares and eliminating the registration requirement.
Last June, the City Council unanimously passed an emergency ordinance requiring all street performers to register each day at City Hall and pay a nominal fee for the registration. The ordinance also solidified language prohibiting street performers and artists from openly selling their wares on the Boardwalk and included specific language about where they could be.
One week later, artist Mark Chase, who became the de facto spokesman for the Boardwalk street vendors, filed suit in U.S. District Court claiming the town’s actions against him specifically, and street performers in general, were in violation of his rights under the First Amendment. Chase sought a preliminary injunction prohibiting the town from enforcing the code changes.
In September, U.S. District Court Judge Ellen Holllander issued a preliminary injunction ruling in favor of Chase and street performers in general on certain key elements of the suit, while siding with the town on others, including a prohibition against street performers setting up shop on the Boardwalk at North Division Street, citing public safety issues with most important access point to the Boardwalk and beach for emergency services.
This week, the parties reached a consent decree that essentially formalizes the elements of the preliminary injunction handed down last September. In short, the consent decree will allow street performers and vendors under certain definitions to sell their creations on the Boardwalk and also eliminates the registration requirement for buskers. In place, however, is the prohibition of street performers setting up displays and performances at North Division Street.
The consent decree was agreed upon by both parties hoping to avoid a prolonged legal battle, according to court documents.
“The plaintiff and defendant desire to resolve this action without the time and expense of continued litigation and they desire to enter a consent decree, which will resolve this action,” court documents read. “The court has examined this consent decree and finds that it is reasonable and just.”
The consent decree was formally signed on Tuesday, effectively ending the case. Ocean City Solicitor Guy Ayres said on Wednesday the consent decree confirms the ruling on the preliminary injunction last fall, and while the town basically lost on the sale of wares and the registration requirement issues, the prohibition at North Division Street remains intact.
“The consent decree effectively ends the case,” said Ayres. “Essentially, all the consent decree does is turn the preliminary injunction into a permanent injunction. The consent decree ruled in favor of the town on certain points and for the plaintiff on certain others, which, frankly, I didn’t think we had a chance of winning anyway.”
Meanwhile, the Rutherford Institute, an organization dedicated to the defense of civil liberties and human rights, which, in part, represented Chase in the suit, was claiming victory following the consent decree this week.
“This is a clear-cut victory for the First Amendment,” said Rutherford Institute President John Whitehead. “Street performers and artists have the same right as any other citizen to the freedom of expression. Hopefully, this case will stop police intimidation and harassment of those who merely want the right to freely express themselves.”
From the beginning of the debate, town officials asserted the intent of the emergency ordinance was rooted in public safety and was not an attempt to impede freedom of speech or expression.
The consent decree includes specific language about the types of expressive materials that may be sold by street vendors on the Boardwalk.
“For the purposes of this injunction, expressive material is defined as any item or items that have been created, written or composed by the person who sells, rents or exchanges them for a donation, or are inherently communicative and have only a nominal utility apart from their communicative value,” the consent decree reads.
According to the decree, items that meet the criteria include books, pamphlets, cassette tapes, compact discs, digital video discs, paintings, photographs and sculptures, although the list is not limited to those forms of “expressive communication.”
Items not allowed to be sold include housewares, appliances, articles of clothing, sunglasses, auto parts, oils, incense, lotions, candles, jewelry, toys and stuffed animals.