The Ocean City boardwalk. Source: Bill Price III, from Wikimedia Commons.

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.
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A Street Preacher (though not the one in this case) | by frankieleon, flickr. Used subject to reuse label.

The concrete pathways at the corner of University Boulevard and Hackberry Lane in Tuscaloosa, Alabama, may look and quack like

sidewalks, but as constitutional matter, the Eleventh Circuit considers them something less: an extension of the University of Alabama campus.  In a recent decision, that circuit concluded the sidewalks were not a “traditional public forum” within which the Constitution confines government control of speech and other demonstrations, but rather a “limited public forum” to which the University of Alabama could constitutionally control access. The practical result?  The unlicensed street preacher who sued ‘Bama won’t get a preliminary injunction against the university’s grounds-use policy.

The plaintiff preacher,
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“Sexy cops” patrolling the Las Vegas Strip. Source: loweringthebar.net.

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

Last month, street performers in the Ninth Circuit got a bigger tip than anticipated when the Ninth Circuit Court of Appeals reversed a Nevada federal district court’s order granting summary judgment to three Las Vegas police officers, where the police officers ticketed two street performers on the famous Las Vegas Strip.  In its ruling, the appeals court found that the street performers—who dressed up as “sexy cops” to take photos with tourists—could not constitutionally be required to obtain a business license for engaging in expressive activity and association.

Michele Santopietro is an actress turned street performer who occasionally dresses up as a “sexy cop” on the Las Vegas Strip.  In March of 2011, Santopietro and her colleague Lea Patrick performed as “sexy cops” on the Strip as they were approached by three individuals indicating a desire to take a photograph.  The “sexy cops” happily obliged.  Following the photograph, Patrick persistently reminded the three individuals that the “sexy cops” work for tips.  Unbeknownst to Santopietro and Patrick, the three individuals in question were real Las Vegas Metro police officers dressed down in street clothes.  Due to Patrick’s persistence and claim that the officer entered into a “verbal contract” to give a tip, the Metro police officers arrested the two women under Clark County Code § 6.56.030 which states: “It is unlawful for any person, in the unincorporated areas of the county to operate or conduct business as a temporary store, professional promoter or peddler, solicitor or canvasser without first having procured a license for the same.”
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The Fremont Street Experience in Las Vegas. Source: Vegas Experience.

Fremont Street in Las Vegas is one of the city’s major tourist attractions.  It is operated and managed by a private concessionaire, Fremont Street Experience, LLC.  The city government regulates street performances on Fremont Street, controlling the areas in which street performances take place, limiting noise made by street performers, designating times in which street performances are allowed, establishing a lottery system to allocate times and locations among street performers (25 to 38 performers, depending on the time of the day), and requiring that street performers obtain a city license.  In a prior case, the Ninth Circuit Court of Appeals found Fremont Street to be a traditional public forum.


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