Ocean City Today

Judge issues split decision in Boardwalk busker lawsuit

OC can enforce some regs, but its weekly lottery is out for constitutional reasons
May 10, 2018
Photo by: File photo

(May 11, 2018) United States District Court Judge Richard Bennett allowed only three of the regulations developed by the Boardwalk Task Force and scrapped the rest, including Ocean City government’s lottery system to determine where performers get to perform each day.

The regulations the city can enforce include preventing any performances anywhere on Boardwalk after 1 a.m., barring any performances at the ends of North Division and Dorchester streets, and prohibiting a busker from placing or allowing an item exceeding six feet in height above ground on the Boardwalk.

But the city can no longer require all performers that choose to set up between First and Ninth streets to show up at City Hall one week in advance to register for a selected spot — the lottery system developed by the task force, nor can it require performers to remain in a designated spot, or to occupy only one spot on the Boardwalk.

The city also can no longer ban performances before 10 a.m. or prohibit signs or advertising on umbrellas used by the performers.

Bennett’s decision calls these regulations unconstitutional and in violation of both the First Amendment to the Constitution and of Article 40 of the Maryland Declaration of Rights.

The performance hour restriction was rejected by Bennett largely on First Amendment grounds, but also on prior restraint. Prior restraint is judicial suppression of instances of expression, rather than based on the subject matter.

Bennett concluded the restrictions enacted placed a substantial burden on speech that neither implicates nor hinders Ocean City’s interests.

“As this Court stated over twenty years ago in Markowitz, Ocean City must determine the forms of expressive activities that “actually harm or substantially threaten” the City’s interests and “develop an ordinance which directly addresses the evil posed by each activity,” Bennett concluded.


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