October.26.2013
A litigation team from our Washington, D.C., office, led by James Burke with Matthew Jeweler and Kathleen Orr and supervised by Jonathan Guy, recently represented a musician in obtaining a preliminary injunction prohibiting Ocean City, Maryland, from enforcing a noise ordinance on the town’s oceanfront boardwalk, a popular summer attraction. The closely watched First Amendment case has been the subject of significant media attention.
William F. Hassay, Jr., our client and the plaintiff in the litigation, is a former symphony violinist who has performed on the boardwalk during the summer months for nearly two decades. In 2012, however, Ocean City added a new restriction to its noise ordinance that deems all instrumental and amplified music to be "unreasonably loud" if it is audible from a distance of 30 feet. That summer, Mr. Hassay was threatened with arrest, up to three months imprisonment and a $500 fine for violating the ordinance by playing his violin.
Following a contested evidentiary hearing and oral argument conducted by James and Matthew, U.S. District Judge Ellen Hollander ruled that the 30-foot restriction was likely unconstitutional, relying heavily on testimony from an acoustics expert the Orrick team retained. "I do not question the legitimacy of defendants' interest in restricting excessive noise on the Boardwalk," Judge Hollander wrote in her published decision. "But, the means employed by Ocean City to achieve its goals reach far broader than necessary. The 30-Foot Audibility Restriction, which categorically prohibits music played at the level of 'most normal human activity'…is not narrowly tailored to prevent excessive noise."
Mr. Hassay returned to the boardwalk two days after Judge Hollander issued her opinion, just in time to perform for the 2013 Fourth of July weekend. "Literally the world brightened up for me when I read the news," Mr. Hassay said.
In a letter to the firm, Debbie Jeon, legal director for the ACLU of Maryland and Orrick's co-counsel, noted that Judge Hollander's preliminary injunction ruling is the latest in a series of pro bono wins that Orrick has achieved in partnership with the ACLU of Maryland. "The Orrick team has gone above and beyond the call in the time and careful attention they have devoted to this pro bono matter, despite the many competing demands on their time... Moreover, all have been an absolute pleasure to work with—extremely smart and capable, genuinely nice, and committed to providing the same excellent representation on this pro bono matter that they would to any of the firm's paying clients."