On The Front Lines
Federal Court Prohibits Maryland Officials From Preventing Street Performer From Selling Paintings on Ocean City Boardwalk
OCEAN CITY, Md. — In response to a First Amendment lawsuit filed by attorneys for The Rutherford Institute, a federal district court has enjoined the Town of Ocean City, Md., from enforcing ordinances forbidding a visual artist from selling his works on the Ocean City Boardwalk and requiring that boardwalk performers register with the Town. Institute attorneys filed the lawsuit on behalf of Mark Chase, a visual artist and street performer who was prohibited from creating and selling his paintings on the boardwalk of Ocean City and was allegedly subject to a campaign of harassment by police officers over his efforts to practice his street art. In ruling that Chase's performances are expression protected by the First Amendment, the court noted that Ocean City had failed to show any compelling reason for forbidding Chase from selling his artwork on the boardwalk. The court also ruled that the registration requirement for street performers was overbroad in violation of the Constitution.
"The court's opinion is a victory for the First Amendment," said John W. Whitehead, president of The Rutherford Institute. "Street performers and artists have the same rights as any other citizen to the freedom of expression. Hopefully, this case will stop police intimidation and harassment of those who merely want the right to freely express themselves."
Since 2010, Mark Chase has engaged in street art in Ocean City, painting pictures on the boardwalk and selling his works. Chase uses quick drying spray paint which allows people to see his creative process from start to finish. The boardwalk in Ocean City, a home to street performers and other artists for many years, is a bustling exchange of people, services, and ideas, an ideal location for an artist to engage the community. On May 7, 2011, Chase set up his art equipment on the Ocean City boardwalk and began to paint. Soon thereafter, he was approached by police officers who told him to remove the sign listing the prices for his work because of city ordinances forbidding the sale of goods or wares on the boardwalk. Police also informed Chase that he cannot solicit compensation for his work, but must only accept what passersby offer.
The city council had already passed a law requiring performers to purchase permits in order to practice their art on the boardwalk. Since then, street performers have been subjected to increasing pressure from city officials, most recently with the adoption of emergency orders forcing them further from the main drag of the boardwalk in what is perceived as another attempt to quash free expression. Then on June 21, Chase again set up his equipment on the boardwalk, only to have police once again shut him down, threatening him with arrest and informing him that they would continue to shut him down no matter where he set up. Coming to Chase's defense, The Rutherford Institute filed a lawsuit against the city arguing that its actions endanger the rights of all individuals to engage in displays of free expression on the boardwalk.
In the order issued on September 9, 2011, U.S. District Judge Ellen Lipton Hollander preliminarily enjoined Ocean City from enforcing restrictions on the sale of "expressive material" by street performers such as Chase and the requirement that street performers register with the Town pending a full trial. Affiliate attorney John Garza of Maryland is assisting The Rutherford Institute with the lawsuit.
