ACLU Challenges New Ocean City Noise Law

OCEAN CITY — Ocean City’s street performer laws are under attack again this week after the American Civil Liberties Union (ACLU) filed suit in U.S. District Court on behalf of a Boardwalk violinist, alleging the town’s 30-foot noise ordinance on the historic promenade is unconstitutional.

The ACLU filed suit in federal court on Wednesday on behalf of violinist William Hassay, Jr. challenging the town’s noise ordinance changes on the Boardwalk they believe is an attempt to silence musicians. In the suit filed this week against the Mayor and Council and acting-Police Chief Michael Colbert, the ACLU alleges the enforcement of the town’s 30-foot noise ordinance on the Boardwalk infringes on Hassay’s, and other performers’ fundamental right under the First Amendment to engage freedom of speech and expression in a public forum.

Last year, the Mayor and Council approved an ordinance setting the acceptable limit on noise in any form on the Boardwalk to 30 feet. Essentially, the ordinance was directed at several Boardwalk merchants who habitually play loud music from speakers on their stores, but caught up in the fray were the numerous Boardwalk street performers and musicians whose music often extends beyond the set 30-foot limit.

The ACLU filed suit in federal court in Baltimore on Wednesday challenging what it asserts is an unconstitutional noise ordinance that has been silencing musicians. With the summer season rapidly approaching, the suit seeks a preliminary injunction to suspend the enforcement of the noise ordinance while the case is under review.

“When will Ocean City officials learn that there doesn’t have to be tension between protecting the free speech of performers and ensuring a good time for all on the Boardwalk?” said ACLU of Maryland Legal Director Deborah Jeon. “Bill Hassay has added beauty to the Boardwalk for nearly two decades, created memories for families and taken pride in entertaining the public there. Summer is coming and it’s time to let the music play.”

Ocean City Solicitor Guy Ayres said late yesterday he had just received the suit and had not had time to fully digest the weighty document, but that he had read enough to grasp its objective.

“What they are contending is that the 30-foot rule is so arbitrarily low that even a human voice in a normal tone can be heard from 30 feet away,” he said. “The reality is, that violinist and anybody else that performs are not playing up there in a vacuum. When the guy next to him starts getting drowned out, he turns up his volume and then the first guy turns up his volume again. It becomes a battle of the bands up there.”

Ayres said the 30-foot rule was an attempt to limit the escalation of the music, from either musicians or speakers on store fronts so that it is not discernible from the rest of the ambient noise on the Boardwalk. “There has to be some way to control the noise,” he said. “They wouldn’t have set the level that low if there wasn’t a reason. If you can hear that particular musician through all of the other noise on the Boardwalk from the thousands of people, the stores and amusements and rides, than it is probably too loud. We don’t go around arresting people, but we do tell them to turn it down or issue citations as a measure of last resort.”

According to the ACLU, however, the 30-foot audibility restriction on music is unconstitutional and arbitrary. The ACLU worked with an independent acoustical engineer who analyzed ambient sound on the Boardwalk. To put the noise restriction in perspective, the engineer determined even the jingling of a dog collar is audible more than 30 feet away on the Boardwalk. Thus, according to the ACLU, performers are effectively prohibited from playing any music that anyone could hear. For his part, Hassay said this week he only want to be allowed to continue playing as he has for years.

“All I want is to play my music and share the emotions, the joy and the romance of the violin with people on the Boardwalk,” he said. “I hope to return to the Boardwalk this summer and once again help to create memories that vacationing families will long remember.”

According to the complaint, on two separate occasions in June 2012, Hassay was threatened by Ocean City Police officers with citations for violations of the noise ordinance when he attempted to perform his music on the Boardwalk. As a result, he was unable to perform throughout the remainder of the summer.

The ACLU’s challenge of the 30-foot rule is just the latest in a string of recent actions taken against the town over its street performers on the Boardwalk and alleged freedom of speech and expression and First Amendment rights violations and lately the cases have been going against the town. In 2011, the town was sued by spray paint artist Mark Chase, who successfully challenged an unduly restrictive permitting plan for street performers on the Boardwalk. In 2009, Ocean City officials agreed to rescind an amplification ban for street performers on the Boardwalk after the ACLU challenged its unconstitutionality.

“While these challenges have almost always been successful, Ocean City’s retreats have typically been short-lived,” the complaint reads. “That is, after a suspension or rescission of the offending laws in the immediate aftermath of challenges, Ocean City officials often have merely shifted course and developed some alternative measure aimed at restricting performances and speech on the Boardwalk.”

The ACLU complaint suggest Ocean City’s promotion of the Boardwalk is essentially paramount to false advertising because of the restrictions in place.

“In promoting its Boardwalk, Ocean City touts its festive atmosphere featuring rides, arcades, performers, shops and restaurants,” the complaint reads. “In short, it’s three miles of highly concentrated fun.”

The complaint points out the Boardwalk has been declared by the court as a public forum in which freedom of speech and expression should not be restricted but encouraged.

“Yet, while promoting the Boardwalk as a fun and festive tourist mecca, Ocean City has for at least 25 years waged war against free speech and artistic performances on the Boardwalk,” the complaint reads. “As this court has conclusively ruled, the Ocean City Boardwalk is also the quintessential public forum for purposes of constitutional analysis, but time and time again, in a variety of ways, Ocean City and its police department have enforced restrictions against those who seek to engage in protected First Amendment activities on the Boardwalk.”

The suit filed on Wednesday seeks a judgment against Ocean City declaring the 30-foot audibility restriction is unconstitutional and to declare the threatened enforcement of the noise ordinance infringes on Hassay’s right to free speech. The suit seeks a preliminary and permanent injunction from enforcing the 30-foot rule and award Hassay damages for the losses he suffered as a result of the resort’s threatened enforcement of the noise ordinance during the summer of 2012.

6 comments on “ACLU Challenges New Ocean City Noise Law

  1. As a visitor to Ocean City now and again, having street performers looking to be compensated for their talents, would take away from the charm of the boardwalk. Let it remain a place to casually stroll without being panhandled for your change. Of course its up to those who live in Ocean City, but I would vote against it if asked.

  2. I don’t suggest eliminating any activity that brings business to OC like Bike Week.I’m just saying consider it before isolating others. These events bring tourist revenues to OC no matter how loud they are. The “noise ordinance” is simply a silly feel good reaction from a few.

  3. If you want to control noise, please start with the Harley crowd and that unneccesary, obnoxious noise!!!!!!!!!!!!!!!!

  4. Pan Handling?? Absolutely not. I am a professional Bagpiper who wears an $1100 Kilt & uniform. Who plays $1200 Bagpipes. And when not at the beach,I have Middle class family income. When folks pay me on the boardwalk, they pay for my professional musical abilities to entertain them. If I was a bad performer. They would not pay and I certainly dont look poor in full uniform.Plus it’s just not possible to play my instrument more then 2 hours. So the shops are not bothered. But my biggest question is: Where are the complaints from the Public that you came up with this ordnance?? Maybe this is just a vendetta from some shop owners and board members?? Folks Love Boardwalk musicians. My best memory of the beach growing up was the man who played 2 trumpets at once.

  5. And i quote from the article -”They wouldn’t have set the level that low if there wasn’t a reason. If you can hear that particular musician through all of the other noise on the Boardwalk from the thousands of people, the stores and amusements and rides, than it is probably too loud.” What an idiotic statement. The arcade – too loud – the music from the rides at Trimpers – way too loud and obnoxious – the “barkers” on the boardwalk screaming at you to play the games – the music from the boardwalk bars – too loud. When I want to talk to someone near the amusements or arcade, we have to go away from the area! These musicians are a great asset to the boardwalk. The violinist played beautiful music and NO they do not drown out Trimpers or the arcade. Someone’s worried about the dollars going into someone’s hat as opposed to Boardwalk venues.

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