Ocean City Seeks Summary Judgment In Topless Case

Ocean City Seeks Summary Judgment In Topless Case
File photo by Chris Parypa

OCEAN CITY – Three years of legal positioning over the issue of female toplessness on the beach in Ocean City could be coming to an end soon, as the town has filed a motion for summary judgment in the high-profile civil suit filed in 2018.

The motion for summary judgment, and the accompanying memorandum in support, if approved, would effectively end the case, which was filed by local resident and female toplessness advocate Chelsea Eline and four other named plaintiffs. The plaintiffs will likely file a similar motion for summary judgment on their behalf, leaving a federal judge to decide what could be an end-game of sorts in the long-standing case. In fact, the memorandum in support of the town’s motion for summary judgment suggests an awareness the opposition in the case will essentially seek the same action.

“Both sides believe the case is now in a posture to be decided on cross-motions for summary judgment,” the memorandum in support reads.

In 2016, Eline sought an opinion from the Town of Ocean City and its police department on the legality of female toplessness. The town and the Ocean City Police Department (OCPD) then sought the opinion of the Worcester County State’s Attorney’s Office.

In turn, the Worcester County State’s Attorney’s Office, uncertain of the interpretation of Maryland’s indecency statutes, sought the opinion of the state’s Attorney General on the issue. For several months, Eline and her advocates, along with the town of Ocean City and the Worcester County State’s Attorney’s Office, eagerly awaited the Attorney General’s opinion.

In June 2017, with the Attorney General’s Office guidance still pending, and amid a backlash from concerned residents and visitors over the potential for Ocean City to allow women to go topless on its beaches and Boardwalk, the Mayor and Council passed an ordinance prohibiting the practice. The ordinance was passed as emergency legislation, making it effective immediately.

From the beginning, Ocean City officials have claimed a desire to be respectful of the rights of all residents and visitors to the resort and the passage of the emergency ordinance in June 2017 merely protects the town’s image as a family resort. However, the complaint filed in January 2018 dismisses the perceived loss in tourism numbers and the associated economic gains for the town as a reason for which to violate individual protections under the 14th Amendment.

Shortly after the town passed its topless ordinance, Eline and other named plaintiffs retained the services of noted civil rights attorney Devon Jacob to begin preparing a challenge. In January 2018, the formal complaint was filed in U.S. District Court.

Last December, Mayor Rick Meehan, City Council Secretary Mary Knight and Greater Ocean City Chamber of Commerce Executive Director CEO Melanie Pursel testified during a hearing on a requested preliminary injunction asserting female toplessness in public areas such as the beach and Boardwalk went against the public’s sensibilities.

The plaintiff’s lone witness at that hearing was noted University of Indiana professor Dr. Debra Herbenick, who testified at length about the changing public sensibilities regarding female bare-chestedness in public. Last Dec. 20, U.S. District Court Judge James Bredar ruled against the preliminary injunction that would have, if approved, allowed women to go topless in the same areas of the resort where men are allowed to go shirtless while the larger case runs its course.

Those are the essential facts in the case, facts that have not been disputed by either party, according to the motion filed on Friday.

“There are no material facts in dispute and Ocean City is entitled to judgment as a matter of law as to the constitutionality of the ordinance,” the memorandum in support reads. “The undisputed facts as described above make clear that the subject ordinance promotes and protects the prevailing sensibilities of Ocean City visitors and residents vis-à-vis public exposure of the female breast as gauged thoughtfully and in good faith by Ocean City duly-elected officials and leaders.”

From the beginning, Ocean City officials have contended the notion of allowing female toplessness offends the sensibilities of most residents and visitors to the family-oriented resort. At the preliminary injunction hearing last December, resort officials presented evidence of hundreds of emails, letters and phone calls bearing out that sentiment. Ocean City has contended the Mayor and Council, as leaders and residents of the resort, have an innate understanding of the public’s sensibilities regarding the female topless issue.

“The ordinance was adopted to advance Ocean City’s legitimate interests in promoting decency, protecting morals and prevailing sensibilities, and protecting the order, health, safety and well-being of the populace by prohibiting public nudity,” the memorandum in support of the motion reads. “Advancing these interests constitutes an important governmental objective for the town of Ocean City, as it does for any city or municipality, but in particular in light of Ocean City’s long-standing and highly valued identity as a family-oriented vacation, recreation and travel destination.”

The memorandum in support of the motion for summary judgment suggests the notion of female toplessness in public areas rails against the family-friendly character of the resort.

“This identity and character of Ocean City is the bedrock of its tourism-based economy and must be preserved and protected by the Ocean City government for the benefit of taxpayers, residents and visitors,” the memorandum in support reads. “The subject ordinance, in the view of the Mayor and Council, advances such important governmental objectives and it is directly related to and formulated and intended to accomplish those objectives.”

The memorandum goes into great detail on at least a dozen prior cases when courts have ruled against female toplessness in public areas. It also points out the plaintiffs in the Ocean City case hang their collective hats on a fairly recent case in Fort Collins, Colo. that went the other way. In that case, the court conceded it was “going out on a lonely limb.”

“Legally speaking, the plaintiffs continue to rely on the razor-thin reed that the Fort Collins case constitutes — a case in which both the trial and appellate court admittedly deviated from direct and well-settled precedent throughout so many jurisdictions and struck out in a novel and previously uncharted direction,” the memorandum in support reads.

The memorandum suggests the plaintiffs have hinged their case on the notion there should be no differences in the laws regarding toplessness for men and women under the Equal Protection Clause.

“The plaintiffs’ argument, in essence, is that any differing treatment of men and women preserves gender stereotypes and constitutes the sexualization of women, consequently an ordinance that defines nudity to include the exposure of the female breasts but not to include exposure of the male breast is impermissible and in contravention of the Equal Protection Clause as an absolute matter,” the memorandum reads.

The memorandum also suggests overturning Ocean City’s ordinance regarding female toplessness would disrupt the resort’s wholesome family image.

“The plaintiffs have taken an activist stance in this case and are advocating for a dramatic and fundamental change to existing law and jurisprudence, which would deviate from the Fourth Circuit precedent and the officially-stated view of the Maryland Attorney General,” the memorandum reads. “They seek to disrupt the character and moral balance of a historically family-oriented tourist destination, visited and enjoyed by so many people whose expectations and sensibilities do not contemplate and will not tolerate female exposure of the breast in such a densely-populated and family-oriented setting such as Ocean City and its beaches. They seek to do so base on nothing more than cherry-picked and self-serving published materials discussing a range of loosely-related societal topics and a single case out of Colorado that has no binding effect here.”

The memorandum disputes the testimony of Herbenick. During the preliminary injunction hearing last year, Herbenick testified her research suggested public sentiment toward female toplessness in public areas has changed to the point it is widely considered acceptable. However, her testimony was based largely on broad generalizations and was not specific to Ocean City or like-minded communities.

“Dr. Herbenick offers no reliable or credible expert opinions that could properly assist a fact-finder,” the memorandum reads. “She has conducted no study, survey or analysis of any kind on the subject of sensibilities toward public nudity in Ocean City or anywhere else. She has conducted no interview of any Ocean City residents or visitors or officials on the subject. She had done virtually nothing at all to reach any finding or conclusion as to the sensibilities of Ocean City visitors and residents on the matter at hand.”

It remains to be seen if the town’s motion for summary judgment will be approved and it appears likely the plaintiffs will file a similar motion on their behalf, leaving the issue for a federal judge to decide sometime in 2020.

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.