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KNIGHT: Striking a sour note on the boardwalk

ACLU tells Ocean City that violin strains constitute free speech

- The Washington Times - Tuesday, May 28, 2013

What do you do if you're a street fiddler who wants to play as loud as you want, and the cops tell you to pipe down?

Well, you could make a federal case of it.

On April 10, the American Civil Liberties Union (ACLU) filed a lawsuit in U.S. District Court in Maryland against Ocean City, Md., on behalf of William F. Hassay Jr., who has earned money playing his violin on the boardwalk seasonally since 1995, according to the suit.

In 2012, responding partly to complaints about boardwalk merchants blasting passers-by with loud music that some found objectionable, the City Council approved an ordinance limiting noise that can be heard to 30 feet. Street musicians who play for tips and use amplifiers were caught up in the auditory dragnet. Last June, police officers approached Mr. Hassay and asked him to turn down his amplifier to conform to the new standard.

For the record, although I once lived in Ocean City as an ink-stained wretch at the local paper, I have not heard Mr. Hassay play in person. I have no idea whether he is God's gift to music, but I seriously doubt it, since his choice of song on an ACLU-uploaded video is John Lennon's atheist anthem "Imagine." Mr. Hassay may, in fact. be one more thing that vacationers walking the boardwalk munching on fries and ice cream find irritating, such as bare-chested, tattooed guys in beer hats.

As the resort's publicity team proclaims of the famed boardwalk, "It's three miles of highly concentrated fun." It actually is. I miss it. Ironically, given the tons of fun, the resort's television ads feature "Rodney," a lifeguard who literally kidnaps people to get them to Ocean City. (OK, the ads are fun, too.)

In any case, rather than lowering the volume, Mr. Hassay quit playing altogether and reportedly left town. Then he got the ACLU to sue the city, saying he has lost substantial income and that the city violated his First Amendment rights to freedom of expression in a public forum. The ACLU's complaint alleges that Mr. Hassay earned $250 to $300 each night, and as much as $25,000 each summer.

This should be of considerable interest to the Internal Revenue Service, but only if Mr. Hassay claims a Tea Party affiliation.

A few weeks later, the city filed a motion for dismissal, noting that the police never issued a citation nor threatened to arrest Mr. Hassay. The ACLU's complaint, the city notes, does not claim that the police asked Mr. Hassay to stop playing or to leave the area, just to turn down the volume.

Sounds like a federal case to me. Does it to you?

"Hassay's only allegation of injury appears to be that the town's maintenance of the noise ordinance 'chills' or deters Hassay's, and others similarly situated, rights to free speech," the city's answer reads, according to the Maryland Coast Dispatch. "Nowhere in the complaint does Hassay contend that he or any other boardwalk performer was actually cited, arrested, asked to leave the boardwalk, compelled to leave the boardwalk or told to stop playing his music . In fact, Hassay was invited to continue to play his music and perform, or to move elsewhere and continue to play if he so chose ."

The ACLU complaint notes that the city tried in 2009 to ban amplifiers altogether, reversing that policy after a challenge from Mr. Hassay and the ACLU.

This year, when Mr. Hassay pulled back into town, his chariot was once again harnessed to the ACLU's easily aroused legal beagles.

That's one way to make noise.

Robert Knight is senior fellow for the American Civil Rights Union.

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