On The Front Lines
First Amendment Victory: Ocean City Officials Agree to Respect Street Performer’s Right to Artistic Expression on the Boardwalk
BALTIMORE, Md. — In response to a First Amendment lawsuit filed by attorneys for The Rutherford Institute, the town of Ocean City, Md., has agreed to cease enforcing ordinances limiting expressive activity on the Ocean City Boardwalk. The conflict arose after city officials forbade Mark Chase, a painter, visual artist and street performer, from creating and selling his works on the boardwalk and required that boardwalk performers register with the town. Chase was also allegedly subject to a campaign of harassment by police officers over his efforts to practice his street art. Under the terms of the settlement, the town will no longer enforce regulations that prohibit individuals from selling goods on the boardwalk and requesting or soliciting tips. Nor will it require persons engaged in soliciting on the boardwalk to register with the town.
“This is a clear-cut victory for the First Amendment,” said John W. Whitehead, president of The Rutherford Institute. “Street performers and artists have the same right 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, including the adoption of emergency orders forcing them further from the main drag of the boardwalk. 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 First Amendment lawsuit against the city in July 2011, arguing that its actions endanger the rights of all individuals to engage in displays of free expression on the boardwalk. In September 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. 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. Affiliate attorney John Garza of Maryland assisted The Rutherford Institute in its defense of Chase’s First Amendment rights.
