Fifth Circuit Holds That Busker Has Standing to File Pre-Enforcement First Amendment Challenge to Ban on Musical Performances for Money in Public Places

In Barilla v. City of Houston, No. 20-20535 (5th Cir. Sept. 10, 2021), a Fifth Circuit panel reverses dismissal on standing grounds of a First Amendment challenge to Houston’s ordinance clamping down on “bands, musicians, singers, mimes, and other artists who perform for gratuities on the sidewalk.”

“Barilla challenges three City ordinances (collectively, the ‘Busking Ordinances’) which prohibit busking anywhere outside of Houston’s Theater District and require a permit to busk within the Theater District. The Busking Ordinances (1) outlaw the ‘playing of bands’ on streets and in other public places in Houston, except for ‘sidewalk performers’ performing in the Theater District with a permit … ; (2) forbid ‘any person’ from ‘conduct[ing] sidewalk performances’ in the Theater District without a permit …; and (3) require permit applicants to obtain written permission from the owners of the properties abutting their requested performance site . . . . “

Plaintiff alleged that the combined effect of these ordinances would be to ban musical performance for tips anywhere withing the 665 square mile area of Houston, permitting them only in the Theater District with a license. Even in that limited area, permits are limited to a designated spot, requiring a $10 to $50 fee, and musicians may be fined $500 if the venture out of their zone.

Barilla allowed his permit to expire but, in his civil complaint, “avers that but for the Busking Ordinances, he would busk again in Houston.” But the “district court concluded that Barilla’s complaint failed to allege an injury[-in-fact] sufficient to confer standing, emphasizing that Barilla had not been cited for violating the Busking Ordinances nor threatened with a citation, nor had he been arrested or shown that he was in immediate danger of arrest.

The Fifth Circuit reverses. “On appeal, Barilla argues that the district court adopted an erroneously restrictive pleading standard for his First Amendment claim. We agree.” It states that in a First Amendment, pre-enforcement action, a plaintiff establishes standing by showing that he “(1) has an ‘intention to engage in a course of conduct arguably affected with a constitutional interest,’ (2) his intended future conduct is ‘arguably . . . proscribed by [the policy in question],’ and (3) ‘the threat of future enforcement of the [challenged policies] is substantial.’” The panel holds that Barilla satisfies each of these prongs.

First, Barilla shows his “intent to engage in conduct arguably affected with a constitutional interest . . . . Barilla’s complaint asserts that he wants to busk on Houston’s public streets. The complaint further alleges that Barilla previously applied for and received a busking permit and subsequently busked in the Theater District. These factual allegations sufficiently show Barilla’s serious intent to busk.”

Second, Barilla shows that his “desired conduct is arguably proscribed by the Busking Ordinances . . . . Barilla’s complaint asserts that he wants to busk and that he does not currently have a busking permit. The complaint further alleges that such conduct is proscribed by the Busking Ordinances, which outlaw all busking outside of the Theater District and busking without a permit within the Theater District.” The city tries to get around this by arguing that the Busking Ordinances do not apply to solo artists such as plaintiff. But on a plain reading of the language, it “renders it unlawful for ‘any person who is not a permittee’ to conduct ‘sidewalk performances’ in the Theater District, thereby subjecting all solo performers to the permitting requirement.”

Finally, Barilla shows a substantial threat of future enforcement. “We have not been presented with evidence at this early stage contravening Barilla’s assertions that the Busking Ordinances remain in force and that he faces a substantial threat of their enforcement. Moreover, the City did not disclaim its intent to enforce the Busking Ordinances to the district court, in its appellate briefing, or during oral argument, and instead stressed the Ordinances’ legitimacy and necessity. The complaint’s allegation that Barilla previously received a busking permit from the City—indicating recent enforcement of the permitting provision—bolsters his entitlement to the substantial-threat-of-enforcement presumption.”

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