Buskers’ First Amendment lawsuit allowed to proceed – Ocean City Today

By Katie Tabeling | Apr 27, 2017

(April 28, 2017) Boardwalk performers who disagree with Ocean City governments registration system could have their day in court, as a U.S. District Court judge has denied the citys motion to dismiss their lawsuit.

The decision issued last Tuesday by Judge William M. Nickerson was that the plaintiffs argument that the regulations restrict their First Amendment rights have merit.

In 2015, several Boardwalk buskers and local activist Tony Christ filed suit seeking $1 million in punitive and compensatory damages as a result of the citys ordinance that established a first come, first serve sign-up system for roughly 30 spaces. The performers and Christ also sought injunctive relief.

Last year, Ocean City adjusted its regulations to a lottery drawing for spaces and officials worked with performers to hear their complaints this past summer. However, the lawsuit continued.

The suit was rejected twice by the court because of procedural missteps, but then attorney David Gray Wright took the case on behalf of the plaintiffs and filed a third suit last September.

While not reaching the merits of the motions to dismiss it is clear that Plaintiffs action arises under the First Amendment of the United States

Constitution, which can be enforced against municipalities through due process clause [in the 14th Amendment, Nickerson wrote in his opinion.

Last year, City Solicitor Guy Ayres filed a motion to dismiss the lawsuit, arguing that the complaint was little more than legal conclusions that the ordinance violates the First Amendment.

Nickerson disagreed and said that the third complaint detailed exactly how performers were limited.

Significantly, in support of this portion of its motion [to dismiss], Ocean City cites no case law in any way related to free speech and expressions claims, he wrote. Upon review of the allegations in the third amended complaint and the relevant case law, the court concludes that the plaintiffs allegations are more than sufficient to state claims for relief.

Several examples Nickerson referenced included magician and ventriloquist Joseph Smith, whose act draws large crowds and would need a larger space than permitted by the ordinance.

Another example was Bob Peasley, a singer and guitar player who suffers from partial paralysis and uses a wheelchair. His physical restrictions make it difficult for him to be physically present for the weekly lottery, the complaint contends.

Considering that, Nickerson wrote that the complaint aptly demonstrates how the ordinance has limited buskers artistic endeavors.

They have further alleged that these restrictions are substantially broader than necessary to achieve Ocean Citys interest, he wrote. While Ocean City may be able to refute those allegations, at this stage in the proceedings, the court must accept them as true and draw all inferences in the plaintiffs favor.

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Buskers' First Amendment lawsuit allowed to proceed - Ocean City Today