ANNAPOLIS — In a victory for Ocean City’s boardwalk musicians, a federal judge on Wednesday temporarily blocked enforcement of the town’s year-old noise ordinance, calling it a violation of the constitutional right to free speech.
Ocean City’s prohibition on amplified sound that is audible 30 feet away unconstitutionally limits performers to playing at sounds no louder than a speaking voice, chilling their First Amendment right, Judge Ellen L. Hollander wrote in a 35-page memorandum opinion.
“In effect, the 30-foot audibility restriction is tantamount to a complete ban on the use of musical instruments and amplified sound on the boardwalk,” Hollander wrote.
“I do not question the legitimacy of defendants’ [Ocean City’s] interest in restricting excessive noise on the boardwalk,” she added in issuing a preliminary injunction. “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 normal human activity, is not narrowly tailored to prevent excessive noise.”
Hollander’s opinion and restraining order permits violinist William F. Hassay Jr. to resume playing on the boardwalk while the case works its way through court.
Hassay, who had been playing there since 1995, stopped in June 2012 when a police officer told him to turn down the volume on his violin playing or face possible punishment of up to three months in prison and a $500 fine.
The American Civil Liberties Union-Maryland filed suit on Hassay’s behalf in U.S. District Court in Baltimore in April, alleging the ordinance violated his right to free speech.
Ocean City countered that the ordinance imposed a reasonable and constitutional limit on the growing presence of amplified sound on the Boardwalk both by street performers and stores. The sound was disturbing seasonal and permanent residents who live nearby, the town added.
On the eve of the Fourth of July, Hollander sided with Hassay and issued a preliminary injunction after concluding that the violinist’s First Amendment argument is likely to prevail if and when his case goes to trial.