News Release From DelMarVa Today OCMD Via ACLU

I thought I had lost this. Posting it now, since I found it.

“Ocean City lifts unconstitutional ban on strolling caricature artist from performing on the Boardwalk

June 2, 2005

Deborah A. Jeon, Managing Attorney 410-889-8550 ext. 120
Rick Griffiths, Attorney (410) 889-8550 ext. 134

Caricature artist Adam Pate will be allowed to do his lightning fast portraits of passersby on Ocean City’s Boardwalk this summer, after a letter from the ACLU of Maryland spurred the City to reverse its initial rejection of his application under an ordinance that imposes unconstitutional restrictions on free speech. Mr. Pate was told by City Solicitor Guy R. Ayers III that he was forbidden from performing on the Boardwalk because he accepts tips for the caricatures he draws. But when the issue of free speech on the Boardwalk last arose, back in 1995, a federal judge ruled that it was unconstitutional to discriminate against speech that contains commercial content. ACLU managing attorney Deborah A. Jeon, who filed the 1995 case, threatened a return to court if the City did not lift the restrictions on Mr. Pate.

Ten years ago, the court ruled that there exists no real substitute for the Boardwalk as a forum for artists, said ACLU attorney Rick Griffiths, who co-drafted the letter. The First Amendment clearly protects the type of expression Mr. Pate wishes to engage in. It was in the public interest of all who visit and enjoy Ocean City’s premier venue to remove this unnecessary and unconstitutional restriction.

The current Peddlers and Solicitors ordinance of Ocean City’s Town Code imposes a year-round ban on soliciting donations on the Boardwalk. But because the Boardwalk is a traditional public forum, it should only be subject to reasonable and content-neutral time, place and manner restrictions when there is a substantial government interest in regulating protected speech. Mr. Pate performs his drawings rapidly and with creative spontaneity, which people find entertaining and educational. That he solicits tips with a notice on his drawing board does not affect the sincerity of his artistic expression. The ACLU could see no justification under the First Amendment to exclude Mr. Pate from this traditional public forum.

People around the country love my quick caricatures, and they have recommended that I go to Ocean City’s great Boardwalk, said Mr. Pate. This is the first time I’ve ever had any trouble doing my pictures in public places. I have a right to perform, and now Maryland beachgoers can have fun watching me this summer.

The current ordinance is very similar to an Ocean City ordinance ruled unconstitutional in the ACLU of Maryland’s 1995 case, Markowitz v. Mayor and City Council of Ocean City. In his ringing defense of free speech rights in that case, U.S. District Court Judge Marvin Garbis called the ordinance vastly overbroad and said courts have allowed government to restrict free speech only when necessary to protect the public safety of health. The ACLU had brought suit on behalf of a member of the Libertarian Party who wanted to collect signatures on the Boardwalk, along with a puppeteer and a juggler who regularly performed on the Boardwalk.

City Solicitor Ayres confirmed in a May 26 letter to the ACLU of Maryland that Mr. Pate will be allowed to perform on the Boardwalk, saying that his proposed activity was not prohibited by the City ordinance after all.”


A Guy Walks Into a Bar (Continued…)


YOU SHOULD KNOW: At least in America, cops have a right to stop you, ask you for your ID and ask you questions about whatever they feel like. They have NO RIGHT to search you or your belongings, take fluids from your body, touch you roughly or confiscate any of your property without probable cause or a warrant. You have a right to use your cell phone video camera or any other recording device to record them at any time.

You have a constitutional right to practice free speech in any PUBLIC place, you do not need to ask anybody’s permission. Be careful to make sure that it is a PUBLIC place and not PRIVATE PROPERTY. That is another story. Each and every kind of performer has a right to express themselves under FEDERAL LAW, which means -(in case it’s not absolutely clear to the city, county and state lawmakers AND COPS) -supercedes local laws. Your mileage may vary however by degree of how much the local law wants to harass you, what they think they can get away with and how far you want to push your luck by dissenting. If you do choose to dissent, a fantastic way to get the most out of this experience is to boldly hold up your cell phone video camera and recite your rights to the officers as they’re pushing your face into the ground and going through your pockets with your arms behind your back, kicking you in the stomach, pepper spraying you in the mouth and hitting you over the head with a stick. (flip them off, spit, cuss, fight back and kick the window of the squad car at your discretion)


“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Let me first say that most police officers are friendly and helpful. It is not the officer’s job to start trouble and harass people, but that certainly doesn’t mean that it doesn’t happen, …often. There’s a word for the type of person who wants a job where they can walk around/ride motorcycles around/cruise around in comfy cars …aimlessly, basically because they are hoping for a random person to ‘do something wrong’ so that they can dominate them with a stick, a gun or some handcuffs and a badge that gives them permission to do so. This word is “SOCIOPATH”. A friendly and helpful police officer does not get angry when they get through an entire day without having to stop some sort of trouble from happening. A sociopath however will go crazy if there’s nobody to bully…

They have bad days and sometimes they just get bored… If one of these pricks is eyeballing you, obviously the best idea is to stay out of their way. If they harass you or others around you, be quiet, leave, whatever it is they ask you to do. Just try to NOT get physically abused, taken into custody or arrested if you can help it so you can raise a harassment complaint against them to the city when you are some place safe. If going to the city about it is a dead end call the ACLU. 212-549-2500, (Trust me. I am a card carrying member. I have called them several times in this situation and I’m glad I did!) If you DO get harassed, remember where and when you were and make note of any shops or street lights with cameras on them if there wasn’t anybody close by to record the exchange first hand. If there is an altercation, get their badge number and name if possible.

Be advised: ALWAYS CARRY ID WITH YOU. IF YOU ARE HASSLED BY THE COPS AND DO NOT HAVE A VALID FORM OF ID, THAT IS CONSIDERED “PROBABLE CAUSE” AND THEY CAN LEGALLY TAKE YOU INTO CUSTODY AND HOLD YOU FOR UP TO 24 HOURS WITHOUT ACTUALLY ARRESTING YOU FOR NO REASON AT ALL. If this happens, they are still not allowed to rough you up. They will pat you down, put you in a squad car and hold you in a cell, but they are not able to go through bags, boxes or sealed compartments like the trunk of your car without a warrant. They may not take bodily fluids from you or cause you to breath into any apparatus either.

In order to avoid a confrontation, it is best to check out the pitch before attempting to busk there, verify that it is public property and if there are other entertainers around, ask them the protocol and if the fuzz is friendly or not. Once again, keep in mind that since you have a constitutional right to practice free speech in any public place, you do not need to ask anybody’s permission -however a little politeness goes a long way towards a pleasant busking experience. Therefore, a prudent performer may also choose to call ahead to the city clerk of courts, solicitor or controller (or go visit the chief of police in a pinch) to see what the official protocol is before performing wherever. In my experience, most performers have no idea of what their actual rights are (one of the reasons I’m writing this) so it’s best to ask the city, in my opinion, and then go from there. Either way, one would have an idea of what to expect when they start busking, for better or worse. The old adage that it is “easier to ask for forgiveness than for permission” does not ring true.

Incidentally if there is a concern about whether creating tangible, tactile, individual, physical artwork that can be taken away is covered by the first amendment, (caricatures, face paint, balloons, etc… anything that can be called a ‘souvenir’ so to speak) consider that the materials were not worth anything before being manipulated by the artist, and that entertaining manipulative service is done in exchange for a freely given donation/tip to the artist and not a stated amount of compensation. The artwork cannot be produced without the paper/balloon/paint/etc… so it is considered just another form of artistic expression that is freely given away and not a product that has an estimated value.

The only things I can think of that would be possibly at the city’s discretion are potentially dangerous or destructive materials or equipment, like fire, water, paints, certain chemicals, chainsaws, giant swords, heavy objects, wild animals, firearms, explosives, etc… I highly recommend getting the OK from the city before putting your thing down on the pitch with these materials in your act. I do not know who would be liable if there were an accident. Chances are it would be the city, which I believe would possibly give them a legal reason to deny you the right to practice your act in certain areas without some restrictions.

It is important to specify that BUSKING is covered under the 1st Amendment. Retail operations are something completely different, are not considered protected speech and I do not have any opinion whatsoever on the subject. If you are charging a set retail price for something, if your operation can not easily be picked up and moved or you are producing something that is meant to be consumed- you are not busking and you DO ACTUALLY NEED TO FIND OUT WHAT THE CITY’S RULES, FEES, PERMITS, ETC… ARE FOR WHAT YOU ARE DOING.