Oceanside Unchains the Melody

When a street musician was cited and found guilty of violating an Oceanside municipal code banning any form of live music on any public sidewalk, he reached out to the ACLU of San Diego & Imperial Counties, believing his free speech rights had been violated. Just last week, after negotiations between the San Diego ACLU and the city of Oceanside, a district court judge approved a settlement that ensures the fundamental right to engage in speech in a public forum. The law firm Cooley LLP served as co-counsel.

The musician, Mark Mayville, occasionally plays an electric guitar with a portable, battery-powered amplifier, near the Oceanside pier. As street performers often do, Mayville displays a jar to accept voluntary donations from listeners and passers-by, but does not actively solicit tips, charge for requests, or sell any merchandise. In March 2011, two police officers insisted that Mayville stop playing his guitar and detained him, citing him for violation of Oceanside’s noise ordinance. At his hearing, he was found guilty, fined $275, which was suspended for a year as long as he was not cited for the same violation during that period. Mayville subsequently contacted the San Diego ACLU, which sent a letter to the city explaining that the noise ordinance violates the First Amendment. The city replied, suggesting that it had not intended to prohibit the playing of music nor use of amplified sound. After a series of negotiations, the City of Oceanside agreed to issue interpretive guidance on the city’s noise ordinance, stating:

• “Musicians and/or singers shall be permitted to perform in the City, subject to all applicable requirements and laws, as follows:
  • Musicians…shall be permitted to perform, with or without reasonable amplification, unless the noise level…
    • injures or damages the health or safety of the public or, in…residential neighborhoods where tranquility [is] a legitimate concern; or
    • significantly or unreasonably exceeds the ambient noise level…”

In spite of this clarification, Mayville was harassed twice by officers as he tried to play music near the Oceanside Pier, and was told by a supervising officer on a separate occasion that he was not allowed to play music because that constituted conducting business without a license. Fearing harassment, detention, and arrest, Mayville has not returned to play music at the pier since June 2012.

Because the Oceanside Police Department continued to restrict Mayville’s free expression activities, the San Diego ACLU and Cooley LLP filed a complaint asking the court to declare Oceanside’s anti-solicitation ordinances, as applied to Mayville’s musical performances, unconstitutional, and instructing city officials to discontinue enforcement of any ordinance that restricted an individual from free expression activities such as those Mayville was engaged in. After negotiations, the parties reached an agreement, and the settlement was finalized and approved by a U.S. District Court judge this week, ensuring the right of performers to engage in free expression in public forums in Oceanside.