In 2018, accordionist Tony Barilla had a simple desire. He wanted to play his accordion on sidewalks in Houston’s Theater District. Though busking is outlawed throughout the city, it is legal in the Theater District. However, Barilla was unable to obtain the requisite permit to busk because city officials did not know the process for obtaining a permit. The Pacific Legal Foundation came to the rescue, and in late December 2022, a U.S. District Court declared Houston’s busking ordinance unconstitutional, thereby affirming Barilla’s right to busk.
In a deposition, the city argued that the anti-busking law is necessary to protect the “safety and welfare of those traveling through and around downtown.” City officials didn’t explain how an accordionist is a threat to the safety and welfare of others. Indeed, when the court asked a city official what facts support the contention that busking interferes with traffic and pedestrian safety, the official admitted that she did not know of any.
Interestingly, the ordinance allowed individuals—including large groups—to perform on sidewalks without a permit so long as they did not ask for donations. But a single individual—such as Barilla—was prohibited from performing if he sought tips. Apparently, the city believes that a large group doesn’t interfere with traffic and pedestrian safety, but a lone musician does.
The anti-busking ordinance, like many similar government schemes, prevented individuals from earning an honest living. Government permission was required before one could offer values to consumers. The same is true of occupational licensing.
Occupational licensing requires governments to obtain government permission before offering certain services. In many states, an individual who is competent to offer plumbing, painting, interior design, or hair braiding becomes a criminal if he does not first secure the government’s stamp of approval. To receive that permission, he must attend thousands of hours of classes and spend thousands of dollars.
Individuals have a right to create and trade values with willing buyers. That includes the right to busk.