OCEAN CITY — All is apparently quiet on the Boardwalk street performer front as the summer season drags on into August after a federal judge in early July issued a preliminary injunction preventing the town of Ocean City from enforcing its 30-foot noise ordinance on the famous promenade.
In April, the American Civil Liberties Union (ACLU) filed suit in federal court on behalf of violinist William Hassay, Jr. challenging the town’s noise ordinance changes on the Boardwalk the organization believes are an attempt to silence musicians. In the suit filed 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 the noise ordinance on the Boardwalk, the legal process will likely take several months. In the meantime, on July 3 a federal judge issued a preliminary injunction essentially prohibiting the town from enforcing the 30-foot rule for street performers on the Boardwalk until the case is resolved.
While now untethered by the 30-foot rule on the Boardwalk, street performers have been practicing their art as they always have on the Boardwalk this summer, but there has not been the anticipated flaunting of the law. Anecdotally, the street performers are still drawing large crowds on most summer nights, but their volumes are decidedly toned down for the most part and there have been few reported incidents of conflicts with police or merchants.
“There have been very few if any issues related to the preliminary injunction regarding the street performers,” said OCPD Public Information Officer Mike Levy this week.
For their part, the ACLU is also reporting there have been few if any incidents or confrontations between city officials and street performers since the preliminary injunction was handed down just about a month ago. ACLU attorney Debbie Jeon said this week there has been a decided détente, or spirit of peaceful coexistence on the Boardwalk since the injunction.
“We are also hearing that things are going relatively smoothly for the city and its street performers since the issuance of the preliminary injunction, which is good news,” she said. “That suggests that performers are able to express themselves and the city is able to regulate excessive noise on the Boardwalk even without the 30-foot rule.”
Jeon said the larger civil suit and perhaps a permanent injunction against the town’s 30-foot rule will likely take several months, although she expects the issue to be resolved before next summer.
“The litigation itself is ongoing,” she said. “The parties have agreed on a schedule going forward that allows for about six months of discovery and motions in the hopes of having a final resolution by next season.”
In her opinion on the preliminary injunction, Judge Ellen Hollander essentially said she understood the intent of the town of Ocean City’s noise ordinance on the Boardwalk, but the ordinance did not hold up to First Amendment scrutiny.
“I do not question the legitimacy of the defendants’ interest in restricting excessive noise on the Boardwalk,” the opinion reads. “But the means employed by Ocean City to achieve its goals reach far broader than necessary. The 30-foot audibility restriction, which categorically prohibits music played at the level of most human activity, is not narrowly tailored to prevent excessive noise. Therefore, the 30-foot audibility restriction fails to satisfy the second prong of intermediate scrutiny.”
According to the civil suit, on two separate occasions last June, Hassay was threatened by Ocean City police officers with citations for violations of the noise ordinance while playing his violin music on the Boardwalk. As a result of the alleged coercion, Hassay stopped playing for the remainder of the season causing great financial loss and perhaps more importantly, a violation of his basic First Amendment rights to freedom of expression in a public forum.
However, the town of Ocean City this spring filed a motion to dismiss the suit, asserting Hassay was merely approached by an OCPD officer after complaints from retailers in the area where he was performing and asked to turn down the volume of his music
to conform to the 30-foot rule. The town’s motion to dismiss asserts the officer never issued a citation or threatened Hassay with arrest, but rather intended to educate the Boardwalk performer on the recent changes in the town’s ordinance.
“Hassay’s complaint merely alleges that as a result of the noise ordinance, he had a conversation with several Ocean City Police officers which resulted in his feeling that he was deterred, or ‘chilled,’ from exercising his First Amendment rights,” the town’s answer reads. “However, the record before the court in the matter is clear that, as it relates to Hassay, no enforcement of the noise ordinance ever occurred.”