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The City of Houston’s busking ordinance has come under fire from a local musician who is challenging the law as a violation of his First Amendment right to free speech. Article XI of the Code of Ordinances of Houston, Texas, Sidewalk Sales and Performances, requires any vendor or performer to apply for and secure a permit to sell merchandise or food or to conduct a performance on the sidewalk in the city’s theater/entertainment district. Implicit in this ordinance is that street performances are limited to a certain sector of the city, in this case, “the area including to the mid-point of and bounded by Preston Street on the north, Dallas Street on the south, Milam Street on the east, and Interstate Highway 45 on the west.” In other words, street performances are limited to an area encompassing approximately 17 blocks. This reading is supported by Article I of Chapter 28-6, which prohibits performances “with a view to taking up a collection from the bystanders” except as permitted by section 40-261.
In January 2020, Anthony (Tony) Barilla, a professional musician and accordionist, filed a lawsuit against the City of Houston in the United States District Court for the Southern District of Texas, alleging that the City’s busking ordinance is a violation of the Free Speech Clause in the First Amendment. Barilla did not renew his busking permit for several reasons, including the permit fees, the limitation placed on the areas in which he could perform for tips, and the Heckler’s Veto requirement, which compels those seeking a permit to obtain written permission from owners whose property abuts the place where the permit applicant intends to perform. In the complaint, he claimed that the busking ordinance restricts free speech rights in a public forum and does not treat all speech equally since protesters and panhandlers are not subject to the same permitting requirements. Additionally, he alleged that the ordinance imposed a prior restraint on his free speech and that the requirements under the ordinance did not serve a compelling interest. Barilla sought a declaration that the ordinance was unconstitutional and the entry of a permanent injunction against the enforcing of the ordinance and its requirements. The court granted the City’s motion to dismiss, finding that it had no subject matter jurisdiction as Barilla lacked standing. Barilla appealed, alleging that he was subjected to a heightened pleading requirement. Oral arguments were heard on April 28,2021. You can learn more about the case and read the complaint and appellate briefs here.
Many cities throughout the United States have embraced busking or have at least loosened any restrictions that might have been in place. For instance, San Antonio allows busking, without any registration necessary, in all downtown pedestrian areas except those specified in its Downtown Street Performers Policy. Similarly, Austin requires no permit for busking unless the performance is to take place in a city park. In both Michigan and Missouri, courts have ruled that busking or street performances are protected by the First Amendment, and any ordinances placing restrictions on such performances have been repealed.
Some cities have even taken it a step further. For example, in Paris, France, not only do musicians have to obtain one of the coveted licenses that will enable them to perform in the cavernous and acoustically-superb Metro corridors, they also need to audition for that license in front of a jury. Austin has a Street Performance Program (currently on hold), which pays street performers an hourly rate of $150 to each musician for a two-hour set. However, performers who are not part of the program can still busk in Austin without a permit with certain exceptions. As cities reopen and people once again flock to the city centers and parks, more opportunities will arise for street performers. Buskers in Houston will just have to wait and see what the future holds for them.