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Page 34
The Dispatch/Maryland Coast Dispatch
July 12, 2013
. . Temporary Suspension Of Noise Ordinance Granted
FROM PAGE 4 “Further, the balance of the equities favors the plaintiff and an injunction is in the public interest. Accordingly, I will enter a preliminary injunction against the enforcement of the 30foot audibility restriction as to the Boardwalk.” In her opinion, Hollander essentially said she understood the intent of the town of Ocean City’s noise ordinance on the Boardwalk, but the ordinance did not hold up to First Amendment scrutiny. “I do not question the legitimacy of the defendants’ interest in restricting excessive noise on the Boardwalk,” the opinion reads. “But the means employed by Ocean City to achieve its goals reach far broader than necessary. The 30-foot audibility restriction, which categorically prohibits music played at the level of most human activity, is not narrowly tailored to prevent excessive noise. Therefore, the 30-foot audibility restriction fails to satisfy the second prong of intermediate scrutiny.” In the wake of the preliminary injunction ruling, street performers and musicians, including Hassay,
formances does not alter the status of his musical expression because protection under the First Amendment is not lost if the speech is sold rather than given away.” According to the civil suit, on two separate occasions last June, Hassay was threatened by Ocean City police officers with citations for violations of the noise ordinance while playing his violin music on the Boardwalk. As a result of the alleged coercion, Hassay stopped playing for the remainder of the season, causing great financial loss and perhaps more importantly, a violation of his basic First Amendment rights to freedom of expression in a public forum. However, the town of Ocean City this spring filed a motion to dismiss the suit, asserting Hassay was merely approached by an OCPD officer after complaints from retailers in the area where he was performing and asked to turn down the volume of his music to conform to the 30-foot rule. The town’s motion to dismiss asserts the officer never issued a citation or threatened Hassay with arrest, but rather intended to educate the Boardwalk performer on the recent changes in the town’s ordinance. “What Hassay does not allege in his complaint, however, is a substantive injury or objective harm caused by the noise ordinance or its enforcement,” the town’s answer reads. “Hassay’s complaint merely alleges that as a result of the noise ordinance, he had a conversation with several Ocean City Police officers which resulted in his feeling that he was deterred, or ‘chilled,’ from exercising his First Amendment rights. However, the record before the court in the matter is clear that, as it relates to Hassay, no enforcement of the noise ordinance ever occurred.”
Violinist William Hassay, a street performer at the heart of the federal civil case, is pictured on the Boardwalk on Tuesday. Photo by Shawn Soper
were out en masse along the Boardwalk this week, just as they have been all summer. While most attracted large crowds, their volume was decidedly lower than it has been in the past, suggesting an effort to at least comply with the rules despite the victory on the preliminary injunction. In her opinion filed last week,
Hollander said under any definition, the Ocean City Boardwalk qualifies as a public forum and Hassay’s music qualifies as a protected form of free speech. “Indisputably, Hassay’s music qualifies as protected speech and Ocean City does not contend otherwise,” the opinion reads. “That Hassay receives donations for his per-
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