Settlement Reached in Ocean City Boardwalk Free Speech Case

November 22, 2013

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CONTACT: Meredith Curtis, ACLU of Maryland, 410-889-8555media@aclu-md.org

 

BALTIMORE - Thrilled that the music will play forever more on the Ocean City Boardwalk, the American Civil Liberties Union (ACLU) of Maryland today announced a settlement has been reached with Ocean City officials in ACLU's federal court challenge to an unconstitutional noise ordinance that had silenced some popular Boardwalk performers since the summer of 2012 . The lawsuit was brought on behalf of William F. Hassay, Jr., an accomplished violinist who has played for families on the Boardwalk for nearly two decades. Following a preliminary injunction granted in June, Hassay and other musicians have been allowed to perform on the Ocean City Boardwalk, which they have done without incident.


"The First Amendment does have meaning in America, and I am proud to be part of defending our free speech rights," said William Hassay Jr. "I was so excited to be back on the Boardwalk again this summer, sharing the joy and romance of my violin with many visitors who had wondered where I was after not being able to play for over a year."

 

The settlement imposes a permanent injunction on Ocean City's 30-foot sound restriction for the Boardwalk. It also recognizes the significant loss of income that Hassay experienced during the time that he could not perform his show on the Boardwalk by awarding him $21,000 in damages; in addition, it includes reimbursement of $11,000 in costs and $105,000 in attorney fees.

 

"Today, the First Amendment forecast for Ocean City looks bright and sunny," said Deborah Jeon, Legal Director of the ACLU of Maryland. "We are thrilled that musicians will no longer be silenced by Ocean City's unconstitutional sound restriction and hopeful that the Town will honor all performers' free speech rights in the future."

 

In April of 2013, the ACLU filed Hassay v. Mayor and City Council of Ocean City, Maryland, which challenged the 30-foot audibility restriction on music on the Boardwalk as a violation of the First Amendment. The restriction also just made no sense. The ACLU worked with an independent acoustical engineer who analyzed ambient sound at the Boardwalk and - to put the restriction in perspective - the jingling of a dog collar is audible more than 30 feet away on the Boardwalk.  Thus, performers were effectively prohibited from playing any music that anyone could hear.

 

On June 10, United States District Judge Ellen L. Hollander heard evidence and oral argument in the case. Those who testified at the hearing included Hassay, other performers from the Boardwalk who opposed the ordinance, and the independent acoustical engineer.

 

In enjoining the 30-foot rule as unconstitutional in early July - thus allowing Mr. Hassay to return to the Boardwalk for the summer - Judge Hollander wrote:


In the words of the Supreme Court, '[m]usic is one of the oldest forms of human expression.'  Yet, by restricting the audibility of music on the boardwalk to a distance of thirty feet, Ocean City has effectively banned this form of expression from the boardwalk, a traditional public forum.

 

The victory announced today is not the first time that courts have upheld free speech rights in Ocean City. Previously, a Maryland federal court ruled that the Boardwalk is a public forum, meaning that Ocean City may not place any undue burdens on constitutionally protected speech. But in the summer of 2012, Hassay was threatened with arrest, up to three months imprisonment, and a $500 fine for playing his violin on the Boardwalk. Police were purportedly enforcing a noise ordinance that deems all music played on the Boardwalk from an instrument or device to be "unreasonably loud," and thus criminally prohibited, if it is "audible" from a distance of 30 feet.

 

William Hassay, Jr. is represented by lead counsel James W. Burke and attorneys Jonathan P. Guy, Kathleen A. Orr, and Matthew Jeweler of Washington, D.C.'s Orrick, Herrington & Sutcliffe LLP, who are all workingpro bono, as well as ACLU of Maryland legal director Deborah Jeon.
Over the past decade, the Orrick firm have been pro bono partners with the ACLU several other successful cases, including a First Amendment case challenging Baltimore County's unconstitutional restrictions upon political yard signs; a cutting-edge challenge to the Annapolis public housing authority's "banning" and criminal prosecution of residents' friends and family members for visitation as invited guests; and an appellate brief addressing the powerful Baltimore Development Corporation's claim that as a quasi-public agency it was entitled to operate in secret, free from compliance with state open meetings laws or the public information act.  

 

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