UPDATE: Judge Rules For Ocean City In Topless Ban Challenge

UPDATE: Judge Rules For Ocean City In Topless Ban Challenge
File photo by Chris Parypa

OCEAN CITY — Convinced Ocean City officials have a better understanding of the public sensibilities of its residents and guests than the plaintiffs in the case, a federal judge on Tuesday dismissed a civil suit that wanted women to be able to go topless in the resort.

In January 2018, a civil suit was filed in U.S. District Court challenging an emergency ordinance passed by the Mayor and Council in June 2017 prohibiting females from going topless in the same areas as men are allowed to go shirtless, including the beach and Boardwalk, for example. The plaintiffs in the case, including local resident Chelsea Eline and four others, argued the emergency ordinance passed by the Mayor and Council in June 2017 violated their constitutional rights allowing them, and ostensibly any other woman who chose to do so, to go topless in certain areas of the resort where men are allowed to go shirtless.

The case centered on who was best suited to assess the public sensibilities of Ocean City’s residents and visitors. Ocean City asserted the very elected officials who passed the emergency ordinance were best suited to gage the community’s collective opinion on the female public topless issue based on interactions with residents and guests.

“Protecting the public sensibilities is an important government interest based on an indisputable difference between the sexes,” the town’s rationale for the emergency ordinance reads. “Further, a prohibition against females baring their breasts in public, although not offensive to everyone, is still seen by society as unpalatable.”

Meanwhile, the plaintiffs relied heavily on the report and testimony of noted University of Indiana professor Dr. Debra Herbenick about the changing public sensibilities regarding female bare-chestedness in public. In the end, U.S. District Court Judge James Bredar ruled the town’s elected officials were better suited to assess their community’s public sensibilities on the topless issue and ruled in favor of Ocean City, granting the town’s motion for summary judgment on Tuesday.

“Ocean City’s stated purpose for enacting the ordinance is that protecting the public sensibilities is an important governmental interest,” the memorandum in support reads. “The court has held that protecting the moral sensibilities of that substantial segment of society that still does not want to be exposed willy-nilly to public displays of various portions of their fellow citizens’ anatomies that traditionally in this society have been regarded as erogenous zones is an important government interest under the equal protection analysis.”

Council Secretary Mary Knight, who testified in the case during a preliminary injunction hearing, said on Tuesday the judge’s dismissal of the case was welcome news for Ocean City and the majority of its residents and visitors.

“This is great news and the ruling definitely reflects the sensibilities of our visitors,” she said. “In my 14 years serving on the council, by far this subject was the one that I received the most calls, emails, and comments about asking the town to fight to preserve our family atmosphere. I am very happy with the ruling.”

Mayor Rick Meehan was also encouraged by the outcome.

“We are very pleased with the court’s ruling, as it has always been the intention of Ocean City to protect the moral sensibilities of our residents and visitors,” he said.  “We take pride in being a premier family resort destination for eight million visitors each year. We very much appreciate the court’s determination that the Mayor and Council’s actions on behalf of Ocean City’s residents and visitors were proper and fully constitutional.”

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 opinion 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.

Last December, Mayor Rick Meehan, 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 resort officials testified they had a true understanding of the public’s opinion on the female topless issue from the hundreds of phone calls, test messages, emails and personal interactions with residents and visitors. Meehan and Knight testified those interactions represented a fair sampling of the public’s feelings on the issue.

The plaintiffs later filed a motion to dismiss Meehan and Knight as expert witnesses, challenging their qualifications to gage public sentiment on the topless issue. That motion was denied as moot on Tuesday because of the larger ruling on the town’s motion for summary judgment, but the judge did not discount the importance of the resort officials’ testimony.

“Elected representatives best speak for and represent the views of their constituent communities because community members go to their elected representatives with their fears and hopes for their community,” the memorandum reads. “The elected officials then take action to reflect those concerns, as occurred here with the passing of the ordinance. If the constituents believe their elected representatives are no longer listening to their concerns or accurately speaking for them, then the community may vote those representatives out of office. This process holds elected officials accountable to their constituents and best ensures that the views of the community are reflected in the acts of their elected representatives. It provides confidence that the action taken by city officials truly does reflect public sensibilities.”

In contrast, the judges 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.

“The court noted it did not find Dr. Herbenick’s opinion persuasive,” the memorandum in support of the ruling reads. “The court found that Dr. Herbenick’s opinion was not strictly relevant to the issue at hand because 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 her report, Herbenick presented a series of photographs of female beachgoers in Ocean City dating back to 1906 in an attempt to illustrate how public sentiment has changed over the decades on the relative covering of the female body. However, while the judge agreed public sentiment on the coverage of females on the beach had certainly changed, Ocean City was not yet ready for the next step in the evolution.

“These photographs demonstrate the massive transformation in swimwear over the course of the last century, from long skirts to the modern bikini,” the memorandum reads. “But while these photographs show that community norms have changed regarding appropriate beachwear, they do not demonstrate that community norms in Ocean City have evolved to embrace public female toplessness.”

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.