NEW FOR THURSDAY: For Now, Judge Rules Resort Can’t Enforce 30-Foot Rule
OCEAN CITY — Ironically just in time for the Fourth of July and all of the crowds and noise the holiday brings, a federal judge on Wednesday issued a preliminary injunction prohibiting the town of Ocean City from enforcing its 30-foot noise ordinance as it relates to street performers.
On April 10, the American Civil Liberties Union (ACLU) filed suit in federal court on behalf of violinist William Hassay, Jr. challenging the town’s noise ordinance changes on the Boardwalk the organization believes are an attempt to silence musicians. In the suit filed against the Mayor and Council and then-acting-Police Chief Michael Colbert, the ACLU alleges the enforcement of the town’s 30-foot noise ordinance on the Boardwalk infringes on Hassay’s, and other performers’ fundamental right under the First Amendment to engage in freedom of speech and expression in a public forum.
While the suit ultimately seeks a reversal of the town’s changes to its noise ordinance on the Boardwalk, the legal process could take several months to unfold. In the meantime, Hassay’s attorneys were seeking a preliminary injunction, which, if approved, would force the town to suspend the enforcement of the 30-foot rule on the Boardwalk until the case is resolved, likely the rest of the current summer season.
A hearing on the proposed preliminary injunction was held on June 10 during which both parties presented the merits of their respective cases. On Wednesday, U.S. District Court Judge Ellen Hollander issued an opinion granting the preliminary injunction and essentially prohibiting the town from enforcing the 30-foot rule for street performers on the Boardwalk until the case is resolved, likely the remainder of the summer season.
“In the absence of preliminary injunctive relief, the plaintiff will suffer irreparable injury, in the form of deprivation of his right to freedom of expression, as guaranteed by the First Amendment,” the opinion reads. “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 30-foot audibility restriction as to the Boardwalk.”
In her opinion, Judge 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.”