This post was authored by Otten Johnson summer associate Chelsea Marx.  Chelsea is a rising third-year law student at the University of Denver Sturm College of Law.

Just in time for summer, the federal district court in Maryland has determined that the show must go on for a group of performance artists challenging an ordinance restricting public performance on the Ocean City boardwalk.  In Christ v. Ocean City, which we first reported on last year, a federal district judge concluded that Chapter 62, a new ordinance limiting performance to designated spaces at designated times, was mostly unconstitutional.

The Ocean City Boardwalk Task Force hoped Chapter 62 would survive scrutiny after a lengthy history of successful First Amendment challenges to prior regulations of speech on the boardwalk.  The Mayor and City Council charged the five-member Boardwalk Task Force to draft a new ordinance addressing the “issues that had plagued the Boardwalk” with respect to public safety, traffic congestion, and managing competing uses for limited space.  A cast of eleven street performers, including a puppeteer, stick balloon artist, magician, mime, portrait sketch artist, and musician, filed suit asserting that Chapter 62 violated the First Amendment.

Further background and details of the ordinance are detailed in our earlier post.

On cross-motions for summary judgment, the court held that most of the provisions in Ocean City’s ordinance restricting performances on the boardwalk to designated places at designated times were facially unconstitutional.  Although the court determined the regulations were content neutral and therefore not subject to the highest level of scrutiny under the law, it concluded that the majority of Chapter 62 did not survive intermediate scrutiny.  Under intermediate scrutiny, the government must demonstrate that the restrictions are narrowly tailored to further the government’s proffered significant interest and leave ample alternative channels of communication.

Here, the court determined that Chapter 62’s registration requirement for performance space; restriction of performance space to a limited number of designated spaces, and blanket prohibition against performances before 10:00 a.m. were all overly broad in violation of the First Amendment.  The court concluded that Ocean City failed to narrowly tailor these restrictions so a substantial burden was placed on speech without advancing the city’s goals.

However, the court did determine that a few particularized provisions in Chapter 62 were constitutionally permissible because they were narrowly tailored and left ample alternative channels for the performers expression.  Ocean City may enforce a blanket prohibition against performing on the Boardwalk after 1:00 a.m., when any performance may present a safety or traffic hazard.  Similarly, the Court concluded that an absolute ban on performances at two highly congested intersections was constitutional because it advanced public safety while leaving alternatives for expression.

Ultimately, the court’s decision was primarily a victory for the street performers.  However, given their history, Ocean City will likely seek to continue to craft restrictions on boardwalk performers.

Christ v. Town of Ocean City, ___ F. Supp. 3d ___, 2018 WL 2129682 (D. Md. May 9, 2018).