Similar to the Town of Ocean City's efforts to regulate Boardwalk artists and performers, Jean Marbella's article, “Wandering buskers and topless sunbathers take Ocean City to court” (May 23), fails to discuss or look into the serious harm and implications caused by speech regulations on the Boardwalk. Instead, the article takes a shallow dive at the situation and reads as an attempt to garner support for the town and its business owners' unconstitutional ventures to restrict expression.
The Boardwalk in Ocean City is a traditional public forum. That is fancy legal speak for a public place where the First Amendment and its protections apply robustly. A place where people are able to express themselves in the manner of their choosing, such as singing songs or pantomiming or making balloon animals for children. As an attorney and executive director of Maryland Volunteer Lawyers for the Arts, I have had the privilege of representing the group of Boardwalk artists and performers challenging the ordinance over the past two years with my co-counsel David Wright. These artists and performers have been fighting against an Ocean City ordinance that quarantined their rights to perform on the Boardwalk. Earlier this month, U.S. District Judge Richard D. Bennett ruled in favor of most of the artists and performers claims, gutting the ordinance just in time for the 2018 season.
Ocean City performers have been in and out of federal court on this issue since the early 1990s. The underlying tension in this decades-long saga is that the business owners on the Boardwalk do not like the performers or their presence. While Ocean City continually capitulates to the interests of the Boardwalk business owners, the court has continually ruled that the application of those interests (getting rid of the performers) is unconstitutional. The business owners complain about how it is unfair that they must pay rent, taxes, and other regulatory expenses while the performers need not pay. Many of the business owners also do not like the way that the artists perform. In terms of a First Amendment analysis, these concerns of the business owners are irrelevant. It is not supposed to be fair. The First Amendment prioritizes expression on the Boardwalk. The First Amendment does not give special protection to the business owners on the Boardwalk. The business owners could have thought about the costs associated with starting a business on the Boardwalk, dealing with individuals exercising their First Amendment rights being one such cost. Clearly, the business owners failed to take the Constitution into consideration before setting up shop.
Without this context, Ms. Marbella's article reads as propaganda for the Boardwalk business owners and the town's ostensibly innocuous claims for unconstitutional conduct. Similar confusion for readers is caused by her awkward juxtaposition of the performers' constitutional issues with those of the constitutional issues faced by a group of women who are fighting against the patriarchal ban on female bare-chestedeness.
With so few places left to engage in the exchange of differing ideas and expressions, the Boardwalk is quite a special place. Everyone agrees on its inimitable character. It is unfortunate that our paper of record, which should be better versed in the uniquely American institution of the First Amendment, would unwittingly attempt to buttress the unverified claims of those trying to prohibit and inhibit speech. I'm headed “downy ocean” this weekend, and I can't wait to hit the boards to see what everyone is saying, and, perhaps, to play a song or two.
Adam Holofcener, Baltimore
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