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Fiddling around at the beach

Our view: Boardwalk violinist wins a free-speech case while Ocean City officials get a well-deserved lesson in how not to protect summer vacationers

July 8, 2013

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Regular visitors to Ocean City in the summer months may be familiar with the music of William F. Hassay Jr. The 61-year-old substitute teacher has been supplementing his income since 1995 by playing his violin on the boardwalk from 3 p.m. until midnight for audience tips — until June of last year, that is.

That's when Ocean City Police decided he was in violation of the town's noise ordinance, specifically a provision that applies only at music from radios, phonographs and musical instruments. Because Mr. Hassay's violin playing could be heard from 30 feet away, it was considered an "unreasonably loud noise," and he was given a citation for which he could be fined up to $500 and/or put in jail for up to three months.

Last week, U.S. District Court Judge Ellen Lipton Hollander recognized that rule for what it was — a violation of free speech. And Mr. Hassay is back on the Ocean City Boardwalk playing his violin (with occasional accompaniment from his boombox). But the episode ought to serve as a lesson not only to the beach resort but to others who regard music — even the commercial variety — as somehow less protected than other forms of communication.

But it's also a lesson in how government should tread lightly on individual freedoms, especially those spelled out in the U.S. Constitution. No doubt few, if anyone, regarded the violinist as a serious problem on the boardwalk. That the former concert violinist (he was First Violinist with the Alabama Symphony Orchestra) earns about $25,000 annually in tips from passersby might have provided the first clue.

Admittedly, the boardwalk can get loud in the summer, perhaps even obnoxiously so. Some have complained about the ruckus. At least one local hotel owner says his guests frequently have to withdraw from the front porch in the evenings to find peace and quiet.

But where Ocean City made its mistake was in categorizing music as something to be judged differently from other sources of "noise." Indeed, in the lawsuit brought by Mr. Hassay and the American Civil Liberties Union, it was noted that judging whether sound was audible from 30 feet was not a terribly effective way to reduce noise. Even conversations can be heard from far greater distances (although Ocean City's noise ordinance gives human speech a 50-foot limit).

Mr. Hassay's victory in the case is a win for all Ocean City boardwalk musicians. Judge Hollander's order instructs police not to enforce the 30-foot enforcement provision on anyone who performs on the boardwalk entirely.

If excessive noise continues to be a problem, the town might simply stick with rules that set maximum decibels emitted by anyone anywhere. After all, merely being inaudible at 30 feet doesn't mean someone or something isn't loud, it might simply be masked by even louder noises. At some point, any form of noise can become a hazard. According to the Occupational Safety and Health Administration, there is a potential for hearing damage at 90 decibels or greater.

Meanwhile, officials may want to ponder whether they're focusing their limited police resources on the right menaces. The noise patrol isn't the only questionable effort afoot: Last month, Ocean City Councilman Brent Ashley proposed a "decency" law that would essentially apply a dress code to the boardwalk. Those caught wearing "saggy pants" or failing to cover the "breast or pectoral area" might face a $25 fine.

What is this, an effort to cultivate more business for the ACLU? Mr. Ashley has said his goal is to reduce the presence of thugs and hoodlums, but such a dress code — particularly one that seems to be aimed at people of particular cultures and races — appears problematic, at best.

Want to make Ocean City a better, safer place for family vacations? Banning violinists and saggy shorts hardly seems the place to begin. We strongly suspect that Ocean City's new police chief, Ross Buzzuro, a 28-year veteran of the Baltimore City Police Department and a former Northern District commander, has some better ideas. Here's one: Leave the fiddling around on the boardwalk to Mr. Hassay and allow police to focus on more important matters like pedestrian fatalities on Ocean Highway and summer's customary uptick of robberies, fights and other more serious crimes.