OCEAN CITY — A federal judge on Wednesday ruled against the Town of Ocean City on the salient points of a civil suit filed in U.S. District Court by a group of Boardwalk street performers.
For the fourth time in as many tries, the Town of Ocean City was not successful in defending street performer regulations after U.S. District Court Judge Richard Bennett on Wednesday ruled in favor of the plaintiffs on the most important aspects of the town’s latest street performer ordinance. Bennett issued his opinion on Wednesday on the cusp of another summer season in Ocean City. Essentially, the federal court’s ruling eliminates the pre-registration requirement, location limitations and most of the time and space restrictions on street performing on the Boardwalk.
The case was first filed in 2015 by eight Boardwalk street performers and challenged many of the provisions on the town’s latest attempt to regulate busking along the famed promenade. The case was rife with procedural issues from the beginning, which delayed a final ruling from the federal court before Wednesday’s opinion was handed down.
In the end, however, the eight street performer plaintiffs were successful in arguing the town’s street performer ordinance violated their First Amendment rights to free speech. As a result, most of the provisions in the town’s ordinance will be struck down, likely resulting in a return to the old “wild west” days where almost anything goes on the Boardwalk related to street performing.
The town was successful in defending some of the regulations in its street performer ordinance, including a prohibition of any performances set up on key access points for emergency vehicles at North Division Street and Dorchester Street; a ban on any Boardwalk performances after 1 a.m.; and a ban on any signage or advertising above six feet over the Boardwalk.
“These three restrictions on performers and performing are facially constitutional under the First Amendment to the United States Constitution and Article 40 of the Maryland Declaration of Rights,” the opinion reads. “As to all other remaining regulations, the city’s motion for summary judgment is denied.”
Otherwise, all bets are off, essentially, with the rest of the provisions of the town’s street performer ordinance.
According to Bennett’s opinion released on Wednesday, Ocean City may not enforce the remaining regulations that the plaintiffs challenged, which, as enacted, require all performers wishing to perform between and including South 1st Street and 9th Street to register for a designated area beginning one week ahead of time. It also states Ocean City may not require performers to only occupy designated areas within that same stretch from South 1st Street to 9th Street.
The opinion also prohibits the town from enforcing the section of the ordinance that prohibits street-performing activity before 10 a.m.
In simplest terms, the court’s ruling essentially pulls most of the teeth from the town’s street performer ordinance including the pre-registration requirement, the limitations on spaces utilized by buskers other than North Division Street and Dorchester Street where vehicle access points for emergency vehicles are located and the ban on any performances before 10 a.m.
The town won on a few points, including the section of the ordinance that keeps important access points open for emergency vehicles such as police, fire, EMS and the veach patrol, for example. The town also won on the provision that prohibits street performing after 1 a.m. and another provision that prohibits street performing, signage, advertising and the like more than six feet above the Boardwalk.
“The city shall not enforce these provisions as enacted,” the ruling reads.
Throughout the years, Ocean City has attempted to regulate the where, when and how for street performers in the interest of keeping pedestrian traffic flowing on the Boardwalk in the summer months, and in the interest of public safety and some protections for Boardwalk businesses that pay for business licenses, pay rents and mortgages and are otherwise regulated. However, each time the town’s various street performer ordinances have been challenged in court, now four times, the buskers have prevailed largely on constitutional issues.
“The city council of Ocean City asserts that performing on the Boardwalk must be regulated because, among other reasons, the amount of available space is limited due to the size of the Boardwalk and the large crowds of visitors,” the opinion reads. “The council asserts that is particularly true between South 1st Street and 9th Street, where there have been conflicting claims for available spaces, significant congestion and consistent overcrowding.”
However, the opinion handed down on Wednesday ruled in favor of the street performer plaintiffs, effectively eliminating the pre-registration requirements, the time and location limitations and other provisions related to the content of the protected activity.
“It is established that all of the plaintiffs’ activities including singing, puppeteering, miming and drawing, are protected free speech under the First Amendment,” the opinion reads. “Further, it is established that the Boardwalk is a traditional public forum. In a traditional public forum, the government’s power to regulate speech is limited, though not foreclosed.”
In his opinion, Bennett suggested he understood the town’s desire to protect one of its most important assets and maintain public safety. In the end, however, free speech protections under the First Amendment trumped most of the town’s efforts to limit street performing with time and place restrictions and pre-registration requirements.
“This court recognizes Ocean City’s substantial interests in making the Boardwalk safe and orderly for its citizens, personnel and visitors,” the opinion reads. “However, with the exception of three provisions, Chapter 62’s restrictions place a substantial burden on speech that does not implicate or hinder the city’s interests.”
