Hassay v. Mayor of Ocean City, 955 F. Supp. 2d 505

Hassay, a long-time Ocean City boardwalk violinist, was warned in June 2012 that his music violated the 30-Foot Audibility Restriction.
Ocean City adopted the 30-Foot Audibility Restriction in February 2012 as part of its Noise Ordinance to curb boardwalk noise.
The ordinance prohibits, among other things, sound from musical instruments audible at 30 feet on the boardwalk, with related restrictions for voice and other sounds at greater distances.
Hassay filed suit in April 2013 seeking a preliminary injunction to enjoin enforcement of the 30-Foot Audibility Restriction on the boardwalk during litigation.
Experts and boardwalk witnesses described ambient noise and testing data; Hassay testified his performances could not meet the strict 30-foot limit without rendering music unintelligible.
The court granted the injunction, concluding the 30-Foot Audibility Restriction likely violated Hassay’s First Amendment rights and was not narrowly tailored to a significant governmental interest.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the 30-Foot Audibility Restriction is content based or neutral	Hassay argues it targets musical instruments, a protected form of speech.	Ocean City treats sound from instruments and amplifiers the same regardless of message.	Assuming content neutral, it fails intermediate scrutiny.
Whether the 30-Foot Audibility Restriction is narrowly tailored to a significant government interest	Restriction bans music at a level that prevents intelligible communication and expression.	Restriction reduces boardwalk noise while allowing some speech, thus narrowly tailored.	Not narrowly tailored; it prohibits most normal activity and silences protected expression.
Whether the restriction leaves open adequate alternative channels for communication	Lower-volume performances or other venues do not meaningfully substitute boardwalk music.	Alternative channels exist within the ordinance framework and other boardwalk uses.	Fails to leave ample alternative channels for Hassay’s musical expression on the boardwalk.
Whether Hassay suffers irreparable harm absent injunction	Enforcement would irreparably chill First Amendment rights and income.	Injury is compensable and can be addressed by policing noise rather than banning speech.	Irreparable harm established; likelihood of success on the merits supports relief.

Ward v. Rock Against Racism, 491 U.S. 781 (U.S. 1989) (time/place/manner restrictions require intermediate scrutiny)
Ladue v. Gilleo, 512 U.S. 43 (U.S. 1994) (total bans on entire media infringe First Amendment speech)
Deegan v. City of Ithaca, 444 F.3d 135 (2d Cir. 2006) (realistic forum-based tailoring of noise restrictions required)
Doe v. United States, 968 F.2d 86 (D.C. Cir. 1992) (narrow tailoring depends on forum-specific characteristics)
City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410 (U.S. 1993) (time/place/manner restrictions must be content-neutral and narrowly tailored)
Frisby v. Schultz, 487 U.S. 474 (U.S. 1988) (First Amendment in public forums; expressive activity protected in bustling forums)
Snyder v. Phelps, 131 S. Ct. 1207 (U.S. 2011) (traditional public forums provide robust First Amendment protections)