OCEAN CITY — Parties on both sides of a civil suit, filed in April challenging the town of Ocean City’s enforcement of the 30-foot rule in its noise ordinance affecting Boardwalk street performers, are anxiously awaiting a judge’s decision this week following a hearing on a proposed preliminary injunction in federal court on Monday.
On April 10, the American Civil Liberties Union (ACLU) filed suit in federal court on behalf of violinist William Hassay, Jr. against the Mayor and Council and then-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 in freedom of speech and expression in a public forum.
While the suit ultimately seeks a reversal of the town’s changes to its noise ordinance on the Boardwalk, the legal process could take several months to unfold. In the meantime, Hassay’s attorneys are seeking a preliminary injunction, which, if approved, would force the town to suspend the enforcement of the 30-foot rule on the Boardwalk until the case is resolved.
A hearing on the preliminary injunction was held in federal court on Monday, but after hours of testimony from both sides, Judge Ellen Hollander has not yet issued a ruling on the temporary halt on the enforcement of the 30-foot noise rule on the Boardwalk, maintaining the status quo for the time being.
“The judge heard evidence and oral arguments from witnesses on both sides and that took all day,” ACLU attorney Debbie Jeon said. “The judge did not issue an immediate ruling, but we’re hoping she will make a decision as quickly as possible.”
Jeon said despite not making a ruling on the preliminary injunction, Hollander appeared to be sympathetic to Hassay’s alleged plight and seemed inclined to endorse the temporary halt to enforcement of the 30-foot rule.
“The judge expressed a lot of concerns about the ordinance,” she said. “If the judge is going to grant in injunction, we would hope it would be sooner rather than later as the summer season is now entering the second week of June.”
The judge heard testimony from both sides during the course of the day-long hearing on Monday. In its opposition to the preliminary injunction in the form of a motion filed last week in advance of the hearing on Monday, Ocean City attorneys asserted granting a halt to enforcement of the 30-foot rule would in essence imply Hassay has a winnable case, which the town believes the ACLU has not yet proven.
“In order to receive a preliminary injunction, a plaintiff must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor and that an injunction is in the public interest,” the motion reads. “Because Hassay cannot show a likelihood of success as to any of his claims, the town should not be enjoined from enforcing its noise ordinance and Hassay’s motion for preliminary injunction should be denied.”
The town’s motion further points out Ocean City’s amended noise ordinance does not discriminate based on content, but merely the volume of noise.
“The contention that music is restricted more heavily than other forms of speech including yelling, shouting, hooting, whistling and singing, and the noise ordinance is therefore content-based is unpersuasive,” the motion reads. “The noise ordinance does not restrict or prohibit any noise on the basis of its content, but only sets a uniform volume restriction relating to the time, place and manner of Boardwalk noise. It is the volume of noise that is restricted, not the message expressed therein.”
Jeon said other street performers testified in favor of the preliminary injunction on Monday. Also testifying on behalf of Hassay was an acoustical engineer, who took tests on the Boardwalk this spring and told the judge the enforcement of the 30-foot rule was tantamount to shutting down Hassay and other musicians.
“The acoustical engineer testified it is not possible for Mr. Hassay or any musician for that matter to comply with the noise ordinance,” said Jeon. “Mr. Hassay does not use an amplifier and his violin cannot be turned down or turned up. It doesn’t have a dimmer switch. He can either play or he can’t.”
Another street performer, Milton Dean, who came before the Ocean City Mayor and Council in May to speak in favor of the 30-foot rule, testified in favor of the town’s noise ordinance on Monday, saying the rule was enforceable without infringing on the rights of the buskers. However, Dean’s testimony was disputed by noted street performer Mark Chase, a spray paint artist who won a similar case against Ocean City last year. According to Chase, Dean said the 30-foot rule was enforceable, yet he measured the distance from which Dean’s music could be heard from at least 100 feet.
Jeon said a decision is likely within the next week.