OCEAN CITY — The town of Ocean City last week filed a motion to dismiss an amended $1 million federal lawsuit filed against it and other named defendants by a coalition of Boardwalk street performers in 2015, asserting the third-amended complaint falls short of defining the alleged First Amendment rights violations.
In November 2015, eight Ocean City Boardwalk street performers, led by Tony Christ, filed suit in U.S. District Court, seeking $1 million in punitive and compensatory damages and injunctive relief from the town’s new busker ordinance implemented during the prior summer that included the now defunct signup process. The town’s street performer ordinance was revised again last winter resulting in the elimination of the signup program that had performers waiting in front of City Hall overnight and replacing it with a lottery system in place all of this summer.
The new system in place this summer is not without its detractors, but the federal suit filed by eight performers last November pertains to ordinance adopted and implemented during the summer of 2015. The suit names the Mayor and Council for their alleged roles in the adopting of the ordinance. The suit also seeks another $1 million in punitive and compensatory damages along with injunctive relief from the town’s ordinance which the street performers allege violate the First Amendment rights.
Last week, the town of Ocean City filed a motion to dismiss the federal suit filed last year by the eight street performers, asserting the complaint consists of little more than flimsy legal opinions and not hard facts outlining the alleged First Amendment rights violations.
“The plaintiffs’ facial challenge is composed of little more than legal conclusions that the ordinance violates the First Amendment,” the motion to dismiss reads. “After each of the aforementioned descriptions of the ordinance’s text, the complaint states that the section is ‘overbroad,’ or ‘not narrowly tailored.’ The relevant section concludes by introducing various other First Amendment buzzwords such as ‘alternative channels’ and ‘impermissibly vague,’ which are also legal conclusions. Setting aside these legal conclusions, which this court is not required to aver as true, the plaintiffs’ facial challenge consists of little more than a set of brief summations of the ordinance’s language.”
The town’s motion to dismiss the suit also asserts the complaint is long on biographical information about the plaintiffs, but short on legal conclusions about rights violations.
“The complaint contains little more than a short biography for each plaintiff, including their performances and the length of time for which they have been performing on the Boardwalk,” the motion to dismiss reads. “That description is immediately followed by a bare assertion that the ordinance chills, limits, and impinges upon the plaintiff’s First Amendment rights.”
Nearly the entire basis for the suit is the perceived First Amendment rights violations, but the town’s formal answer asserts the complaint does not spell out any specifically.
“The plaintiffs’ facial challenges to the ordinance should be dismissed for failure to state a claim upon which relief can be granted,” the motion reads. “Namely, the plaintiffs rely on legal conclusions and a formulaic recitation of their alleged cause of action to plead their entitlement to relief, but fail to set forth facts showing a plausible entitlement to relief. The entire complaint is void of any substantive discussion of the First Amendment rights violated by defendants and factual allegations to support such an allegation. The complaint fails to touch upon a single factor required to be plead to illustrate an entitlement to injunctive relief.”
