Victory! Busking now legal in Houston
In 2018, accordionist Tony Barilla wrote in the Houston Press about his quest to play music on the city’s street corners—a quest that led him into a frustrating maze of bureaucracy. Busking was outright banned in most of Houston. Musicians could play in public spaces only if they didn’t accept tips.
Tony was happy to learn there was an exception for the city’s Theater District, but he ran into brick wall after brick wall while trying to obtain the necessary permit. Even city employees who wanted to be helpful—after all, busking is good for tourism!—were unable to answer his questions. At one point Tony found himself knocking on business doors with homemade permission slips because the city required “abutting property owners” to sign off before granting a busking permit.
The process needed to change, Tony wrote. Busking is an old, valued tradition in cities around the world. Houston was restricting the free expression of musicians and discouraging entrepreneurship.
Yet Tony seemed to have little hope that he could singlehandedly overturn Houston’s busking ordinance.
“[I]t’s going to take someone other than me to make this happen,” he wrote. “I’m certainly not self-confident enough to think I can change public policy… I’m no hero. I’m just an accordionist.”
Four years later, with Pacific Legal Foundation’s help, Tony has successfully done what he thought impossible: He’s changed Houston’s busking policy.
On December 20, the U.S. District Court for the Southern District of Texas announced its decision in Anthony Barilla v. City of Houston: It ruled Houston’s busking ordinance unconstitutional.
The city had tried to convince the court that its ordinance was necessary for pedestrian and traffic safety. In a deposition, Houston’s director of planning and development, Margaret Wallace Brown, pointed to “the safety and welfare of those traveling through and around downtown” as justification for restricting busking.
And yet, the court noted in its opinion, “when asked about the facts that support the idea that busking on sidewalks interferes with traffic and pedestrian safety, Ms. Brown did not know of any.”
The court also found that by requiring all street performers to obtain a permit before performing for tips in the Theater District—even individual performers who don’t take up much space—Houston hadn’t narrowly tailored its restriction on musicians’ free expression. Houston “would allow a large group to perform on the sidewalk without a permit as long as the group does not solicit tips, but a single performer seeking tips must have a permit,” the court pointed out—a disparate treatment that makes no sense when sidewalk traffic flow is the purported interest at stake.
For Tony, a talented musician who has toured the world with multiple bands and written music for This American Life, the ruling means he and other musicians can now play in Houston public spaces without breaking the law.
Joshua Polk, one of the PLF attorneys who worked on Tony’s case, said: “With this win, buskers are now able to pursue their passion for music, practice their craft, and earn tips free of Houston’s unconstitutional restrictions on protected expression.”
Read media coverage of the case:
- ABC13: Street musician suing city of Houston to play for tips
- Reason Magazine: Musician Sues Houston For His Right To Play His Accordion In Public
- The Center Square: Houstonian sues city over busking law prohibiting him from playing accordion for tips
- PLF: Make busking protected speech in all of Houston, not just the Theater District
- Houston Chronicle: Houston musician sues city for ‘dumb law’ that restricts busking (subscription)
- Bloomberg Law: Musician’s Challenge to Houston Busking Ordinances Reinstated (subscription)
