Barilla v. City of Houston, 13 F.4th 427

Anthony Barilla, a professional musician, challenges three Houston ordinances that (1) ban "playing of bands" on public streets outside the Theater District, (2) require a permit to perform ("sidewalk performances") inside the Theater District, and (3) require written permission from adjacent property owners for a permit.
Barilla previously obtained a one-year busking permit in 2018 but did not renew in 2019 because he believed better busking locations lie outside the Theater District, the neighbor-permission requirement is burdensome, and fees make renewal unattractive.
After stopping busking, Barilla sued under 42 U.S.C. § 1983 alleging the ordinances violate the First Amendment and sought declaratory and injunctive relief and nominal damages.
The City moved to dismiss for lack of standing; the district court granted dismissal, reasoning Barilla alleged no citation, arrest, threat, or imminent enforcement.
The Fifth Circuit reversed, holding Barilla adequately pleaded a pre-enforcement chilling injury and therefore has standing; the case was remanded. The appeal of denial of reconsideration/leave to amend was dismissed as moot.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Standing (injury-in-fact for pre-enforcement First Amendment challenge)	Barilla says he ceased busking due to ordinances and would resume but-for them; this self-censorship is a concrete injury	City says no concrete injury because Barilla was never cited, arrested, or threatened with enforcement	Court: Reversed dismissal — pre-enforcement chill can supply injury; Barilla alleged sufficient facts for standing
Serious intent to engage in proscribed conduct	Barilla previously obtained a permit and actually busked in Theater District, showing serious intent	City implies intent insufficient or speculative	Court: Prior permit and past performance show serious, concrete intent
Whether ordinances arguably proscribe Barilla's conduct	Ordinances ban busking outside Theater District and require permits inside, covering solo performers	City contends language targets "bands" and may not apply to solo performers	Court: Plausible reading that chapter 40 definitions and the permitting scheme encompass solo performers; conduct is arguably proscribed
Substantial threat of future enforcement (moribund-standard)	Ordinances remain in force, City did not disavow enforcement, and prior permitting indicates ongoing enforcement	City points to lack of recent citations or explicit threats	Court: In pre-enforcement cases, credible threat of enforcement is presumed absent compelling contrary evidence; City offered no disavowal — threat substantial

Lujan v. Defenders of Wildlife, 504 U.S. 555 (standing requires injury in fact, traceability, and redressability)
Susan B. Anthony List v. Driehaus, 573 U.S. 149 (pre-enforcement claim need not wait for actual prosecution; chill can confer standing)
Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289 (pre-enforcement challenges and credible-threat principle)
Speech First, Inc. v. Fenves, 979 F.3d 319 (5th Cir.) (articulating moribund/credible-threat presumption for facial restrictions on expressive activity)
Dombrowski v. Pfister, 380 U.S. 479 (chilled speech is justiciable injury)
Virginia v. American Booksellers Ass'n, 484 U.S. 383 (self-censorship can establish standing in First Amendment pre-enforcement suits)
Steffel v. Thompson, 415 U.S. 452 (no need to await prosecution before challenging statute)
Zimmerman v. City of Austin, 881 F.3d 378 (5th Cir.) (serious intent shown by steps taken toward proscribed conduct)
Ward v. Rock Against Racism, 491 U.S. 781 (music is protected expressive conduct)