ACLU settles with Ocean City, Md., on violinist's rights

Brian Shane | USA TODAY

OCEAN CITY, Md. — The American Civil Liberties Union and this Atlantic resort town have reached a settlement after a noise ordinance silenced a violinist who likes to play on the boardwalk.

The settlement in the free speech lawsuit challenging the ordinance imposes a permanent injunction on the town's 30-foot sound restriction for the boardwalk, the ACLU of Maryland said in a statement. It awards $21,000 in damages to violinist William F. Hassay Jr., 62, of Owings Mills, Md., for loss of income — namely, tips from boardwalk pedestrians — in the months he did not perform.

"The First Amendment does have meaning in America, and I am proud to be part of defending our free speech rights," Hassay said in a statement. "I was so excited to be back on the boardwalk again this summer, sharing the joy and romance of my violin with many visitors who had wondered where I was after not being able to play for over a year."

It's unclear whether Ocean City will appeal the ruling. Guy Ayres, a lawyer who represents the town, did not return calls seeking comment. The settlement also includes reimbursement of $11,000 in costs and $105,000 in attorney's fees.

Most of the $11,000 will reimburse out-of-pocket expenses incurred by the Washington law firm of Orrick, Herrington & Sutcliffe LLP, which represented Hassay in a pro bono capacity, ACLU spokeswoman Meredith Curtis said. The fees also will go to the ACLU "to support the organization's ability to protect people's rights in the future."

In summer 2012, Ocean City Police enforced a noise ordinance against Hassay, one that said any music played on the town's boardwalk from an instrument or device should not be audible from a distance of 30 feet. The 2.5-mile boardwalk that dates to 1902 has shops, restaurants, motels, arcades and a carousel.

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An incident report shows that a police officer that day told Hassay he had to move along, and Hassay agreed. Had he been arrested, Hassay would have faced up to three months jail time and a $500 fine.



The ACLU brought the lawsuit in April on Hassay's behalf, challenging the noise restriction and calling it a First Amendment violation against his free speech. A Maryland federal court already had ruled that the boardwalk is a public forum, meaning Ocean City could not place any undue burdens on constitutionally protected speech. About 7,000 people call the town on the Maryland-Delaware border home, but its population can increase to 300,000 and more on a summer weekend.

At a June hearing, U.S. District Court Judge Ellen Hollander heard testimony from Hassay, other boardwalk performers who opposed the ordinance and independent acoustical engineer. The judge ruled in Hassay's favor and granted a preliminary injunction that put a stop to the town's ordinance, which allowed all musicians once again to perform on the boardwalk.

In her 35-page opinion, released July 3, the judge said while the government may hold an interest in protecting citizens from unwelcome noise, this isn't one of those cases.

"Today, the First Amendment forecast for Ocean City looks bright and sunny," Deborah Jeon, legal director of the ACLU of Maryland, said in a statement Thursday. "We are thrilled that musicians will no longer be silenced by Ocean City's unconstitutional sound restriction and hopeful that the town will honor all performers' free speech rights."

Brian Shane also reports for The (Salisbury, Md.) Daily Times.