On The Front Lines
Rutherford Institute Challenges Music Censorship on Maryland Boardwalk, Defends Street Artist Cited for Violating Noise Ordinance by Playing Music
OCEAN CITY, Md. —The Rutherford Institute has once again been called on to defend street performer Mark Chase’s right to engage in expressive activities on the Ocean City Boardwalk after police threatened to arrest Chase for violating the Town’s noise ordinance by using a portable stereo to play music as an accompaniment to his painting performances on the boardwalk. In a letter to the Town’s Chief of Police, Institute attorneys assert that the noise regulation, which is being used to stifle Chase’s ability to exercise his First Amendment right to freedom of speech, is unconstitutionally vague. Institute attorneys secured a First Amendment victory earlier this year when city officials agreed to cease enforcing ordinances limiting Chase’s ability to create and sell his artwork on the boardwalk and requiring that boardwalk performers register with the town.
The Rutherford Institute’s letter is available here.
“No matter what the medium, whether it’s spoken, written, sung, painted or played, expressive activities are clearly protected by the First Amendment,” said John W. Whitehead, president of The Rutherford Institute. “Government efforts to censor, silence or restrict these activities are not only unconstitutional but downright un-American. As the playwright George Bernard Shaw recognized, ‘The censorship method ... is that of handing the job over to some frail and erring mortal man, and making him omnipotent on the assumption that his official status will make him infallible and omniscient.’”
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. Last July, Institute attorneys filed a lawsuit on behalf of Chase against Ocean City alleging that various regulations on street performers generally and on Chase’s art performances specifically violated the First Amendment. In September 2011, the U.S. District Court for the District of Maryland granted Chase’s request for an injunction against Ocean City regulations that categorically banned commercial activity on the boardwalk, required street performers to register with the Town, and prohibited street performers from requesting or accepting compensation for their performances. In its ruling, the District Court held that Chase’s performance includes music he plays from a portable stereo that provides inspiration and sets a tempo for his work. The lawsuit was subsequently settled.
On May 4, 2012, Chase returned to the Ocean City boardwalk to perform, but was told his music violates the Town’s noise ordinance and that he would be arrested if he did not turn his music down. Ocean City amended its noise ordinance in February 2012 to forbid sound from an amplification device if the sound is “plainly audible at a distance of 30 feet . . . which is deemed to be unreasonably loud so as to disturb the peace, quiet and comfort of other persons or at a louder volume than is necessary for the convenient hearing of the individual carrying [the device].” In their letter to Bernadette DiPino, Ocean City’s Chief of Police, Institute attorneys assert that the Town’s noise ordinance is unconstitutionally vague because it leaves it wholly to the discretion of officers as to what volume of sound is “necessary” and what sound is “unreasonably loud.”
