Late last month, a federal district court judge denied Ocean City, Maryland’s motion to dismiss First Amendment claims brought by a group of street performers. Ocean City passed an ordinance that designated a limited number of performance spaces on the city’s famous Boardwalk, which are assigned by a lottery system every Monday morning. Performers are required to be present at the Town Clerk’s office for the lottery drawing. The performers are then assigned to designated performance spaces, which are limited in size, and performers are restricted from performing in the same space for more than two weeks at a time. The city’s ordinance also precludes performers from using paint, dye, or ink, which prohibits them from doing face-painting or other such activities.
The group of street performers filed federal and state constitutional claims. In its order, the court noted that the artistic performances of the street performers fall within the protection of the First Amendment, and that the limitations in the ordinance must constitute content neutral time, place, and manner restrictions. The court denied the motion to dismiss on the grounds that the complaint alleged that the code provisions were broader than necessary to achieve the city’s asserted interests, which, given that the court cannot at the pleading stage make a determination regarding the regulations’ content neutrality and tailoring, was sufficient for the litigation to move forward.