U.S. Fifth Circuit holds standing for First Amendment violation can be shown through chilled speech without the need for actual arrest or citation.

   

Special contributing author Laura Mueller, City Attorney for Dripping Springs

Anthony Barilla v. City of Houston, Tex., No. 20-20535 (5th Cir. Sept. 10, 2021).

In this appeal for dismissal for lack of standing by the district court, the U.S. Fifth Circuit reversed and remanded the district court’s order, holding that the intention to engage in busking (playing music for tips) plus the ordinance regulating the activity was sufficient to show standing on his First Amendment claim.

The plaintiff sued the city after his busking permit to play music for tips expired. He desired to busk in other parts of the city but was kept from doing so based on the need to get a permit and the ordinance that prohibits busking in most areas of the city.  He chose not to busk but instead to file suit against the city.  The city argued that the plaintiff had not proved an actual injury or standing because he had not been arrested, denied a permit, or cited for busking.  The district court granted the city’s motion to dismiss based on the plaintiff’s lack of standing.

To prove standing, a plaintiff must demonstrate an injury in fact by showing that the plaintiff: (1) has the serious intention of engaging in conduct that affects a constitutional interest; (2) that the conduct is regulated or prohibited; and (3) the threat of enforcement against the conduct is substantial.  Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979).  Both music and solicitation for times are constitutionally protected.   See Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989).  Standing existed in this case because the plaintiff had shown a serious intention to busk as he had engaged in the activity previously, and the activity of busking is constitutionally protected.  The U.S. Court of Appeals for the Fifth Circuit reversed the district court’s dismissal and remanded for further review on the standing issue.

The court of appeals reversed and remanded the district court’s dismissal on the basis of standing because the plaintiff provided sufficient evidence of a serious interest in engaging in constitutionally protected activity that is being regulated/prohibited by the city.

If you would like to read this opinion, click here.   Panel consists of Chief Judge Owen and Judges Clement and Higginson.  Opinion by Judge Stephen A. Higginson.

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