Eight local street performers challenged the Ocean City street performance ordinance in federal court -- and won.
Last year, a federal judge made news when he allowed a lawsuit filed against the Ocean City government to go forward. The plaintiffs were eight street performers who argued that the town's street performance ordinance was overly restrictive and a violation of their First Amendment right to free speech. Initially, the street performers -- also referred to as "buskers" -- were having a hard time convincing a judge to hear their case. Their first two lawsuits were tossed for procedural errors. But on the third attempt, United States District Court Judge William Nickerson agreed to let the performers' case go forward. At the time, the judge allowed the case to proceed because "it is clear that the plaintiffs’ action arises under the First Amendment of the United States Constitution, which can be enforced against municipalities through the 14th Amendment’s due process clause." However, the judge was quick to make sure they understood that he was not ruling yet on the merits of their case. The allegations against the city were well-documented. One street performer named Bill Campion creates balloon animals for children. For the past 21 years, he has been walking up and down the Ocean City boardwalk performing for children and adults alike. However, under the township's revised street performance ordinance, Campion would have been forced to enter a lottery and, if his name were drawn, he would have been limited to just one spot on the boardwalk. The case ended up being heard by a different judge: Judge Richard D. Bennett in the U.S. District Court of Maryland. After hearing both sides' arguments, he ruled on behalf of the street performers and struck down Ocean City's ordinance as unconstitutional.
In the decision, Judge Bennett criticized the Ocean City town council for going too far in cracking down on free speech. While he recognized the need for the township to regulate activities on the boardwalk, especially performances that pose a danger to passersby, he ruled that the regulations were too harsh.
"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,'" the decision read.
While Ocean City would be completely within its rights to ban fire-breathers from performing on the boardwalk, someone like Bill Campion -- an elderly balloon artist confined to a motorized scooter -- should be classified in a different category. Ocean City can heavily regulate dangerous and disruptive street performances, but cannot treat all street performers as if they are inherently dangerous and disruptive.
The judge did, however, uphold some of the township's street performance ordinance. Ocean City can still ban street performing after 1 a.m. The city is also allowed to restrict the performances on the streets as well as ban performance props that are larger than six feet tall.
One aspect of the case that the judge did not rule on is damages. Now that Ocean City has been found to have violated the constitutional rights of street performers, a payout is possible.
Campion told reporters that the now-unconstitutional regulations severely hurt his income.
"What has happened, they hurt us financially," Campion said. "I used to do three to four hours of tying balloon animals. Now it takes me two days to make the same money I used to make in that time. I've been outside since 8 a.m., it's 3:30 p.m. now, and I've only made $22."
The plaintiffs have filed a fourth motion before the judge so that he can rule on damages. In any case involving violated constitutional rights, payouts are usually significant, especially if plaintiffs can prove they were financially harmed.
What do you think? Do you like the boardwalk street performers? Let us know in the comment section below!
