Busking accordionist Anthony Barilla says the city’s “dumb” law means he can only work in areas with unpredictable foot traffic.
Last month, a Texas musician filed a lawsuit against Houston, saying city ordinances against busking violated his First Amendment rights.
On Friday, attorneys filed a motion to dismiss the federal-level suit. In it, lawyers said that Houston has a responsibility to keep its streets and sidewalks clean and safe. Removing anti-busking laws, claims the brief, could jeopardize residents’ health well-being.
As the Houston Chronicle notes, busking—the performance of music in public places, done in the hope of receiving tips—is unrestricted in most U.S. cities.
But the attorneys pushing back against the suit say that Houston isn’t like Seattle, New York or Portland. In fact, they claim the city’s warm weather and humid climate combine to make busking something of a health risk.
“Houstonians have a noted tendency to congregate in areas in doors, or even underground, to ‘avoid the heat of the summer, traffic, and inclement weather,’” the motion states. Removing the anti-busking ordinance would suggest that the city condones “unregulated competitors, obstructions of access, or objectionable noise,” all of which are potentially dangerous, economically and physically.
But composer Anthony Barilla, who filed the lawsuit, says the places Houston permits busking aren’t lucrative locations. He has a permit to perform in the city’s Theater District, and he isn’t a fan.
“The Theater District is not a great place to busk,” Barilla told the Chronicle in a late-January interview. He explained that the Theater District receives light foot traffic most of the day, save for whenever there’s a show.
“You don’t really think about Houston and foot traffic in the same sentence,” Barilla said, adding that the law is “dumb.”
“Houston is such a business-friendly town. This is my business,” Barilla said. “You’d think Houston, given our pro-business climate, that we wouldn’t be that way. The law is archaic. We haven’t caught up to the other world-class cities.”
Mollie Williams, an attorney at the Pacific Legal Foundation—which is representing Barilla pro-bono—explained how anti-busking regulations are harmful.
“By banishing buskers from the vast majority of public streets, Houston has harmed only Tony’s First Amendment rights but also his livelihood by restricting his ability to practice the trade that he loves,” Williams said. “Because the First Amendment prohibits this kind of censorship, the law should be struck down.”
Interestingly, the Chronicle notes that busking was banned across Houston for most of the 20th century. It was only in preparation for the 1990 G-7 summit that Houston’s former mayor, Kathy Whitmire, enacted an ordinance permitting street performers in the Theater District.
Whitmire’s intent, says the Chronicle, was to attract more people downtown.
With that law having been passed some 30 years ago, city attorneys now say that Barilla waited far too long to take the ordinance to court.
But, in their January filing, the Pacific Legal Foundation said that Houston can’t force individuals to obtain a permit to “express themselves on public streets.”
“Houston’s permitting requirement does not further any compelling, or even significant government interest,” the foundation said. “In particular, [it] services no purpose except for the illegitimate purpose of censoring disfavored speech.”