Judge Rejects Topless Preliminary Injunction

Judge Rejects Topless Preliminary Injunction
File photo by Chris Parypa

OCEAN CITY — Convinced Ocean City officials have a better understanding of the public sensibilities than the plaintiffs in the case, a federal judge on Thursday ruled against a preliminary injunction that would have allowed women to go topless where men can in the resort

Last January, a civil suit filed in U.S. District Court challenged an emergency ordinance passed by the Mayor and Council in June 2017 prohibiting females from going topless in the same areas as men. The plaintiffs, including local resident Chelsea Eline and four others, filed a motion for a preliminary injunction that would allow them to go topless while the case was decided.

A hearing on the preliminary injunction was heard in federal court on Dec. 7, during which Mayor Rick Meehan, Council Secretary Mary Knight and Chamber of Commerce Executive Director Melanie Pursel testified on behalf of the town. The plaintiff’s lone witness was noted University of Indiana professor Dr. Debra Herbenick, who testified about the changing public sensibilities on female bare-chestedness.

U.S. District Court Judge James Bredar essentially ruled the town’s own representatives, including Meehan, Knight and Pursel, were better judges of the public sensibilities in the resort.

“Public sensibilities, or moral sensibilities, are inherently somewhat impressionistic,” the opinion reads. “That does not mean they cannot be measured, but assessment of public sensibilities does not require scientific sampling. The question is more whether Ocean City’s witnesses, by virtue of their roles and positions, are equipped to ‘take the pulse’ of the community and its visitors and the court finds they are.”

By way of contrast, in his ruling denying the preliminary injunction, the judge opined Herbenick’s lengthy testimony about the public’s changing sensibilities to female toplessness was general in nature and not specific to Ocean City.

“The court does not find Dr. Herbenick’s opinion persuasive,” the opinion  reads. “More important, it is not strictly relevant to the issue at hand. Instead of her testifying as to what Ocean City’s citizens’ public sensibilities are, she testified as to what she thought they should be.”

In short, the judge opined Ocean City officials were better suited to gauge public sentiment in their own community through interactions with its residents and visitors then a third-party expert.

“Plaintiffs did not muster any evidence to show that Ocean City’s citizens shared their view that women should be able to be bare-chested in public areas as men are,” the opinion reads.

The rejection of the preliminary injunction does not put an end to the case, however. The larger suit will continue.

About The Author: Shawn Soper

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Shawn Soper has been with The Dispatch since 2000. He began as a staff writer covering various local government beats and general stories. His current positions include managing editor and sports editor. Growing up in Baltimore before moving to Ocean City full time three decades ago, Soper graduated from Loch Raven High School in 1981 and from Towson University in 1985 with degrees in mass communications with a journalism concentration and history.