Free Speech

Musician Sues Houston For His Right To Play His Accordion In Public

The city limits busking to its tiny Theater District, and it makes you jump through hoops even to play there.

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Houston, Texas, covers 665 square miles, yet the amount of space where you are legally allowed to play music for tips is limited to the city's tiny Theater District. Now a musician is suing the city, claiming these busking restrictions are unconstitutional.

On Wednesday, Tony Barilla—a Houston-based musician who has recorded music for public radio's This American Lifefiled a lawsuit in the U.S. Southern District Court of Texas. He argues that these limitations on his ability to busk, and the permitting hoops he has to jump through to play even there, violate the First Amendment's free speech protections.

"The second a musician asks for tips while performing, the law is triggered," says Mollie Williams, an attorney with the Pacific Legal Foundation, which is suing on behalf of Barilla. "You can panhandle, you can protest, you can actually perform and not ask for tips, and the law won't apply to you. This law is targeting speech based on its content."

Barilla has written about his Kafkaesque experience trying to obtain a busking permit, a process that required contacting multiple government officials just to get the application. He was also forced to specify where in the Theater District he would be playing music, then obtain permission from the property owners abutting that location.

"It turns out that one's ability to get a permit in Houston doesn't depend on the city at all. It depends on the whim of about a dozen business owners," Barilla wrote.

Requiring buskers to get the permission of nearby property owners is also constitutionally problematic, argues the Pacific Legal Foundation.

"Whether an applicant is able to obtain a permit and exercise his right of free speech depends on the whims of a few people, who together enjoy a 'Heckler's Veto' over that speech," the lawsuit argues. "This limitation, like all of the busking restrictions, does not apply to other speakers, like protestors or panhandlers."

The complaint also notes that it is often difficult to find the property owner whose permission is needed.

Anyone violating Houston's busking restrictions can be subject to fines as high as $500. Barilla wants the court to strike down the regulations, thus allowing him to play wherever people might want to pay him.

Williams points out that there are all kinds of less restrictive ways the city could regulate street music, including limiting the times of day people can play or requiring performers to be a certain distance from business entrances.

"When the government gets to decide what speech is allowed and not allowed based on content, that becomes a pretty scary world," she says.

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  1. If this story isn’t too fucking local I’m not sure what is.

    There’s no overt libertarian angle and I’m pretty sure the musician has accused business owners of being hecklers in their own establishments.

    When this magazine isn’t garbage, it’s worse than garbage.

    1. I think the libertarian angle is that he shouldn’t need permission of private property owners to play his music on public property

      1. That’s how I read it.

        1. Regardless, it is troubling to hear it being suggested that the government does not have the right to determine what forms of nuisance-causing “musical expression” can be tolerated, and when and where perpetrators can indulge in them. Here at NYU, we recently had to call in the police to deal with some of the “artists” on Washington Square, and before that, we spent the better part of a decade making the point clear with respect to unwanted “parodies” that were creating havoc among some of our most distinguished faculty members and administrators. We continue to be thankful to New York City prosecutors for their assistance in helping us make it clear to the entire world, and particularly to the academic community, that the so-called “free speech” baloney we keep hearing about has no impact whatsoever on such basic principles. See the documentation of our nation’s leading criminal “satire” case at:

          https://raphaelgolbtrial.wordpress.com/

      2. Exactly. And, as far as being local, many large cities, including San Francisco, regulate “street performers” in many areas. In the case of Fisherman’s Wharf, in SF, even if you play for free, and don’t accept donations, you can still be cited, unless things have changed since I was there last.

      3. I think the libertarian angle is that he shouldn’t need permission of private property owners to play his music on public property

        You think the musician is also speaking out against the businesses being charged and assessed for not maintaining the sidewalk per local ordinances too? Or is he claiming ownership when it’s profitable and then using the government to push the costs off when it’s not.

        Because I’m 99.9% certain the businesses pay into the tax base that purchased and maintains the sidewalks and fairly certain that at least some pay out of pocket on top of it, while it’s not entirely clear that this musician can even claim to be part of the public that pays for them.

        Good ideas shouldn’t be written into law, but writing them into law doesn’t make them bad ideas. A win for the musician is in no way a clear win for liberty and is an exceedingly narrow one if it is.

        1. So you have evidence that this musician fails to pay the required taxes on his tips? Because if he is paying his taxes, then he also is paying into the tax base that maintains the sidewalks.

          1. So you have evidence that this musician fails to pay the required taxes on his tips?

            First, you skipped gingerly past several other concerns.

            Second, I’m not the one asserting he’s part of the public that owns the sidewalks.

            1. while it’s not entirely clear that this musician can even claim to be part of the public that pays for them.

              Pretty sure that’s not how public property works, Last I checked I don’t have to prove I pay taxes in order to walk on a sidewalk or drive on a road

              1. Pretty sure that’s not how public property works, Last I checked I don’t have to prove I pay taxes in order to walk on a sidewalk or drive on a road

                This is pretty oxymoronic, verging on voluntary self-defeating ignorance. You absolutely do pay taxes. If you’re walking on sidewalks that weren’t paid for by taxes, then (according to libertarian precepts) the rightful owner has every unfettered right to eject you from the sidewalks and keep you off for any reason they see fit.

                Regardless of how you imagine public property working, economics and physics still apply. Somebody had to provide the materials and labor to make the sidewalks and, unless you endorse seizure of that property and labor, they have to be remunerated and that remuneration has to come from somewhere.

                1. Mad, what’s wrong today? You’re usually better than this. You’re not arguing against what Kevin actually said. Let’s try again with some emphasis.

                  “Last I checked I don’t have to prove I pay taxes in order to walk on a sidewalk” which is certainly true. It’s even true that I don’t have to pay taxes to walk on the sidewalk. Hobos with no income pay not taxes yet their rights use the roads are as strong as yours or mine.

                  Property owners do have a right to eject hobos from private property – but they have the same right to eject you or me. Their property rights are not contingent on the taxpayer status of the trespasser.

                  That said, sidewalks are a special case. They are generally built by and maintained by the property owner but subject to a statutory easement allowing nearly all uses by the public. A strict libertarian might think that such easements are unjust infringements on property rights. But again, nothing in that logic has anything to do with the user’s status as a taxpayer.

                  1. should have been “…pay no taxes yet their rights to use…”

                    Can we PLEASE have an edit button?

                  2. That said, sidewalks are a special case.

                    A special case where libertarians side with customers over business owners? Now do gay Nazi wedding cakes and then lament how everyone’s pet cause is what’s killing libertarianism.

                    This is a musician vs. property owners/business issue and it’s only in Houston. The state is a minor player here and whether you side with the musician or the business owners, the state can claim greater territory.

                    Don’t like getting business owner’s permission to use their sidewalks for your purposes? Leave Houston. I hear San Francisco lets people shit in the streets for free and forbids merchants from letting their customers and employees from smoking on public sidewalks.

                  3. Mad, what’s wrong today?

                    Read the source material. It’s a whiny millennial view of capitalism/socialism. The City of Houston hasn’t brought it’s uppity merchants and citizens into line well enough to have an busker permit office as nice and efficient as, say, the City of Chicago’s. He was about to give up on being a busker entirely because more than half of the merchants he approached refused to give him permission or referred him to property owners he couldn’t or didn’t contact. Finally, got steered in the right direction and he proved capitalism works by becoming a proud customer of the City of Houston, potentially buying the only busker’s license the city has. Who knows, in a few years, the City of Houston could be flush with money from all the busker’s licenses they sell. And it would all be thanks to this intrepid musician who’s nowhere near being a libertarian and who’s concepts of capitalism are exceedingly tortured.

        2. You think the musician is also speaking out against the businesses being charged and assessed for not maintaining the sidewalk per local ordinances too?

          What exactly does that have to do with busking regulations?

          On a side note… am I the only one who had never heard the term “busking” until today?

          1. What exactly does that have to do with busking regulations?

            Busking is a business the same way owning a brick-and-mortar store with a sidewalk in front of it is a business. It’s a business regulation. If the city fines the business for not keeping the sidewalks clean (which many do) and then stipulates who can and can’t operate what kind of service the business can operate on that sidewalk (as many do) then the maintenance of the sidewalk is being taken from the business. Then the musician as part of the taxpaying public is, at best and rather overtly, playing the business and, at worst, deliberately using the local gov’t to pry services out of the local business.

            On a side note… am I the only one who had never heard the term “busking” until today?

            Can’t speak for others, but a couple times a year when I go to fill out paperwork for curbside donation events it stipulates what activities the local PD/municipality is vouching for or defending on public space and which activities/rights the local PD is relinquishing to the business owner.

            1. This is all slave mentality. “I get whupped. Why don’t he get whupped too?”

              1. So you’re opposition to slavery isn’t so much the whupping, abuse, or initiation of aggression as much as it is an opposition to the idea that people own things you don’t think they should be able to own? That all slaves get beat equally but some slaves deserve to get beat more equally than others? How libertarian of you.

                Seems like more principled libertarians would oppose the whupping directly while simultaneously seeking to maximize both parties’ property rights. But then, you’d have to admit that there’s no clear libertarian angle here and especially not one that’s not just local to Houston or even just this busker in this location.

              2. Seriously, read the source material. It’s a twisted, whiny millennial view of capitalism. He seems almost laudatory that he could walk into a city office in Chicago, plunk down $60, and walk out with a permit and that, once completed, he’d have reassured himself “Capitalism at it’s finest!”

                Like chucking $60 into the City of Chicago’s (or Houston’s) coffers resembles anything remotely approaching capitalism.

  2. I hope he succeeds. My son is a magician and juggler and tried for years to try to busk in Houston. He even started the Houston Buskers Association when he was a teenager to try to change city regulations so people could busk.

    Right now, the only “buskers” are people who are down and out and can badly play a line or two of a song that they learned somewhere. They play it as you walk by and then stop as soon as they see you’re giving them money. Good buskers are highly entertaining and very talented and deserve a chance to perform in public.

    1. Seems like if you knew a bunch of buskers, especially enough to start an Association, you could readily cobble together enough money to rent a space and/or identify busking-friendly businesses where the law wouldn’t apply.

      Of course, you’d have to relinquish your dream of forcing busking as an employment style on an unwilling public/private business (even then, only in some mostly urban locations) but then, are you in it for the art *and* the money or are you in it to be a unemployed identitarian?

      1. Forced busking so kids can wrap on the streets in suburbia.

        Genius.

      2. You’re pretty damned ready to tell everybody else how to live.

        Why don’t you just fuck off and mind your own business?

        1. Why don’t you just fuck off and mind your own business?

          I do/am. I’m a private business owner who does curbside work for a couple of charities.

          There are plenty of places who don’t have such permits in place and the de rigueur practice is no less byzantine. If a conflict arises, it’s up to the police to decide who’s constitutional rights get violated and, guess what, they tend side with businesses more often and much less politely than the local municipality does. On the flip side, the permit is/can be an endorsement from the public. Business owners needn’t worry that permit holders are trespassing to chattels and/or competing for business. Makes it loads easier to say yes.

          And I didn’t tell anyone how to live. I made recommendations, which no one is under any obligation to follow, and asked for clarification as to why those recommendations were incorrect or, potentially, unlibertarian. Because, as near as I can tell, the only thing that makes them decidedly unlibertarian is the feelz.

          1. it’s up to the police to decide who’s constitutional rights get violated

            Yeah, no.

            1. “Yeah, no.” like “This should be avoided at all costs.”, “The police would never violate anyone’s rights.”, or “Private conflicts never escalate to constitutional issues through the use of police power.”?

              I agree with the first and this permitting process represents anything between ‘fine example’ and ‘acceptable cost’.

      3. As for your faux-concern over businesses having busking forced on them, they also have strangers wandering in demanding service or goods, they have no choice in who their neighbors are, and yet you don’t seem concerned about that.

        You’re nobody’s help. Form a consultancy if you think you know so much. Otherwise leave them all alone.

        1. As for your faux-concern over businesses having busking forced on them, they also have strangers wandering in demanding service or goods, they have no choice in who their neighbors are, and yet you don’t seem concerned about that.

          You realize you’re conflating competing businesses with potential customers, right?

          Form a consultancy if you think you know so much.

          Don’t have to. The businesses in Houston formed their own and went to the City with their ideas.

          If busking is the key to libertopia then libertarianism is well and truly fucked and was from the get-go. I’ve got no problem with that because I don’t believe busking to be as key to libertarianism as the underlying tenets of capitalism (that include things like not confusing competing businesses and customers), but you seem to be phenomenally hurt because this one guy can’t play his accordion outdoors for money on property he doesn’t, himself own.

          Maybe, if you’re lucky, Reason will circle back around to unbridled endorsement of food trucks and you guys can all have a libertarian field day.

          1. Sorry, *potentially* competing businesses with potential customers.

      4. They were a few teenagers who wanted to busk in a park. Then they went to college in different cities. I’m proud that they at least did something even if they weren’t able to follow through.

        Busking doesn’t equal harassment. If you harass or make yourself an annoyance, people don’t tip. You’ve got to give the people what they want and then stand back and let a crowd gather. I’ve been to enough cities around the world where busking is accepted and have enjoyed walking by performances. Sometimes I stop and watch and sometimes I tip. I even tipped an accordion guy on the subway in Kyiv even though the subway buskers tend to be annoying because you’re kind of stuck. He was pretty entertaining and played beautifully plus I’m a sucker for the accordion.

    2. buskers are highly entertaining annoying

      1. If they are annoying, they don’t get tips. Though you may be annoyed, you can keep on walking but they have to be meeting the market needs of enough people to make any money.

  3. Look, I’m in favor of free speech as much as the next guy, but you ain’t making it easy when you’re defending the public playing of an accordion. Don’t test me further with a bagpiper or – God forbid – a mime. Some things are just indefensible.

    1. At least mimes are quiet.

      1. I can’t help but notice you didn’t mime your comment there and let us try to guess what you were trying to say. You see how useless mimes are.

    2. [takes out didgeridoo]

      1. vuvuzela next…

        1. Vuvuzela’s not real socialism!

      2. Trumpet players unite!!

        1. Brass has class.

      3. *Prepares for some freestyle yodeling*

  4. >>”You can panhandle, you can protest, you can actually perform and not ask for tips

    can you perform, not ask for tips, and still accept them? “hey these guys threw money at my feet there’s not even a hat”

    1. Oops… I left my guitar case open again!

    2. Again, if you have the business owner’s or owners’ consent first, it gets considerably more difficult for the city/public/law to say you aren’t a contracted performer just like any other dude who sits down at the piano in bar or a store at the mall or gets up on stage at a karaoke night.

      But then you’re just a musician or maybe a performance artist and not a busker.

  5. I’m afraid I can’t muster much sympathy for an accordion player. Weird Al being the lone exception.

    1. Weird Al being the lone exception.

      I tempted to invoke the Rule of Accordions, the musical corollary to the rule of goats.

    2. Hey, I play the accordion and it’s an awesome instrument. One of my favorite buskers an accordion play in Kherson, Ukraine. Give him a few hryvnia and he’ll play any song you want- as long as it’s a Ukrainian or Russian folk song.

  6. No amplification is allowed.

    Another free-speech violation?

    1. Maybe, but there is a simple way to handle it:

      Many “settled” areas have limits to the amount of “noise” one can create: from radios to weed-eaters to vehicle exhausts, etc. Where I used to live, it was set at 85 db at twenty feet.

      To be fair to “electronic musicians,” rather than ban amplified music, they should probably restrict the volume level. For instance: my mother sang opera, professionally. If she chose to sing on the street corner, she would have to “tone it down” quite a bit to meet an 85 db/20 ft limit. Applied equally, such restrictions wouldn’t ban any form of music, just set sound pressure level maximums.

      1. Your mom is so fat, when she sings on the street corner the whole town shuts down.

        1. LOL…. yep. When she sang an aria from Aida, the whole town would shut down…to listen to her.

        2. Your mom so fat, she can do busking anywhere in Houston.

      2. Why bring common sense into the discussion?

        1. I apologize for that…..

      3. There’s an added issue with regard to the business, though. If I operate a piano bar or a jazz bar and pay to have professional acts to attract customers, any one of a number of motivations would cause me to forbid any Joe off the street from playing on my doorstep.

        And certainly there’s a case to be made that people should be free to play music in the streets and an exception in the permitting process exists (such that you don’t even need a permit). But, with enough exceptions to the permitting process and selective taxation, the situation effectively becomes the city endorsing street performers over brick-and-mortar businesses. Which may be fine for Seattle, or Chicago, or S.F. but if Houston says “No busking.” I don’t see it as some manner of gross Constitutional crisis. Especially if the way around this specific “No busking” rule is simply to ask one or business owner’s permission to perform on their sidewalk and/or go to the next town over.

        1. “If I operate a piano bar or a jazz bar and pay to have professional acts to attract customers, any one of a number of motivations would cause me to forbid any Joe off the street from playing on my doorstep.”

          This is a completely understandable concern, and legitimate, especially if at one’s doorstep. And I am sure the proper regulation could deal with it… say a minimum distance from a venue offering live music.

          Also, don’t forget, live music in front of a business can, potentially, attract customers. So some businesses will welcome some buskers “at their doorstep.”

          Even without first amendment concerns, anywhere people will “compete” for space, such as in tourist areas, there will be some conflict and disagreement about the proper direction of rules regarding “fair competition.” And regulation can only address some of it. Hopefully, the rest can be “hashed out” without anybody getting screwed over too badly.

          1. Also, don’t forget, live music in front of a business can, potentially, attract customers. So some businesses will welcome some buskers “at their doorstep.”

            I didn’t/don’t. As I said above, I do similar work for a couple of charities. Most business owners love to have us milling about their doorstep for a couple days every year. Some don’t and I know of some business owners who’ve been burned by scams and who’s only recourse is to either refuse virtually all curbside activity outright or, as a compromise, refer everyone to local law enforcement and conditionally accept anyone who comes back.

            It’s not your side walk. It’s not theirs either but, push comes to shove and reducing everything to first principles, you can simply walk to the next storefront or potentially rightfully be hauled off public property to jail and they can sue the municipality.

            1. “…It’s not your side walk. It’s not theirs either but, push comes to shove and reducing everything to first principles, you can simply walk to the next storefront…”

              Yep.

  7. One definition of the Yiddish word “mensch” is someone who knows how to play the accordion, but refrains from doing so.

  8. Q: What’s the difference between an accordion and an onion?
    A: Nobody cries when you chop up an accordion.

    1. Q: What’s perfect pitch with an accordion?
      A: When you get it in the dumpster on the first try.

      1. How do you tune a banjo?

        With a saw.

        1. Going to war without France is like going hunting without an
          accordion.

          – Norman Schwarzkopf

  9. Was it an assault accordion?

    1. Is there another kind?

      1. Thread winner.

  10. I once got busted busking in an alleyway off of Wardour Street.

    1. I think you meant “basking.”

      1. I got off with a year’s conditional discharge.

        1. You were only allowed to discharge under supervision?

          1. It’s my own fault for playing “boojie woojie” music.

    2. Long John Baldry – is that you?

  11. You mean to say the government isn’t…

    …wait for it…

    …accordion this guy his constitutional rights?

    1. bad… bad…. very very baaaaaaaaaaaaaad.

  12. What a fun thread. I wish had more of these and fewer culture war threads.

    1. I wish you’d have died in one of your autoerotic asphyxiation sessions when Obama was president. Wish in one hand and shit in the other.

  13. Help me out here – –
    How is this guy different from a ‘homeless guy’ who just happens to be practicing so he can get a musician’s job in the future?
    (In terms of the business owners nearby get to vote on he gets thrown off the island and all)
    If people have to put up with the homeless and their needles and shit, why don’t they have to put up with random music?

    1. How is this guy different from a ‘homeless guy’ who just happens to be practicing so he can get a musician’s job in the future?

      The homeless guy presumably doesn’t have two nickels to pay the city for a permit. This guy is upset that he’s got money for a permit and there aren’t enough principled capitalists working for the City of Houston who will take it from him.

  14. Accordion music is a fucking nuisance wherever it’s played. It shouldn’t be against the kill any motherfucker doing it in public.

    1. What if it’s played at a polka festival?

  15. Street performers

    Check out this guy.

    https://youtu.be/Yn-hDqFgNAQ

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