(Oct. 10, 2014) With the peak season of 2015 only eight months away – practically the blink of an eye in the legal world – the Town of Ocean City has committed to proceeding with a review of its embattled policies regarding Boardwalk street performers.
Last month, it became known that the city had interviewed and was considering two outside legal firms that specialize in constitutional law to review the city’s strategy regarding the sticky First Amendment issue.
“The council has now authorized me to retain the Venable Law Firm in Baltimore,” City Solicitor Guy Ayres said this week. “They’re working up a timetable now with the course of action they intend to follow. I expect to have something back shortly.”
Complaints from visitors and business owners about Boardwalk performers have risen steadily in over the past several years, and sharply over this past summer season, particularly with the addition of a pole dancer, albeit a clothed one.
But given that the city has gone to court three times – and lost three times – on performer regulations, options for control must follow a very fine legal line.
Essentially, Venable would be tasked with reviewing the city’s past and present ordinances regarding performance or solicitation in public space, as well as the court cases surrounding them.
Changes could then be made to improve control over the number and activities of performers, without conflicting with any free speech rights, as has been the case in the past.
Any new legislation could, of course, also result in a suit that would take the city to the mat for the fourth time. Under the contract, however, Venable would agree to represent the city in any resulting court cases.
“They’ve given us an hourly rate, and agreed to a cap in total cost,” Ayres said. “That does not include litigation, if there is litigation resulting.”
“They [Venable] do have First Amendment experience, and municipal law experience,” Ayres said. “One of the attorneys is someone I’ve worked with before.”
In 2011, the city was hit with a lawsuit from Boardwalk spray-paint artist Mark Chase in conjunction with the Rutherford Institute, claiming that the city’s permitting process for street performers impeded free expression. If the city had no compelling reason to require permits other than for the sake of control itself, it was argued, it was a violation of the First Amendment.
Although the city may still restrict placement of performers for public safety and emergency access, the permitting scheme was thrown out by U.S. District Court Judge Ellen Hollander.
A little over a year after the Chase case, the city was hit with another suit, this one by the American Civil Liberties Union and Boardwalk violinist William Hassay, who claimed that the use of a 30-foot noise restriction by the OCPD to stop one of his performances was arbitrary and also in violation of the Constitution.
Again, Hollander found the city’s regulations to be too non-specific. In order to restrict free speech, the policy would need to be unbiased and uniformly applicable, which it was not.
But the rulings did uphold the city’s right to limit performers’ placement for public accessibility, as long as reasonable alternative locations were provided. The city has both the power to keep public rights-of-way clear of obstruction, and provide right-of-access to private property.
Over this past summer, however, many Boardwalk businesses complained that crowds of spectators surrounding performers – such as the “Pole Doll” – were forcing foot traffic to flow away from their storefronts.
The Ocean City Police Department, however, has expressed a reluctance to curtail the crowds in too stringent a manner, fearing further litigation. Watching or participating in a form of constitutionally protected expression is also protected.
Although not recently, the city has also had difficulty dealing with the common complaint that street performers are not subject to the same financial burdens as owners of actual Boardwalk businesses.
In 1995, the city attempted to stop the group One World One Family Now, a spiritual and environmental advocacy group, from selling T-shirts on the Boardwalk. The organization sued, and took the case to court, arguing that their operation supported protected speech.
Judge Marvin Garbis ruled against the city, stating that the ability to receive money does not negate the First Amendment protections offered.