The Burns Case
Recently, the Eleventh Circuit Court of Appeals decided Burns v. Town of Palm Beach, a novel case about whether the First Amendment protects the architectural expression of "a really big beachfront house that can't be seen, located on a quiet residential street in Palm Beach, Florida."1 While the Court held that the design of the proposed house is not an expression that is protected by the First Amendment, it did not rule out First Amendment protections for architecture.2 In fact, it appears to have illuminated the path for the next Plaintiff who wants to use a building's design to make a statement.
Burns wanted to demolish a "traditional" beachfront mansion and build a new one.3 The new mansion was designed in the mid-century modern architectural style.4 According to Burns, the style of the new mansion (even though it was more than double the size of his traditional mansion), would "reflect his evolved philosophy of simplicity in lifestyle and living with an emphasis on fewer personal possessions."5
To build a new mansion in Palm Beach, the property owner must obtain approval from the Architectural Review Commission ("ARCOM").6 ARCOM is a seven-member commission of people who are "specially qualified" by "training or experience in art, architecture, community planning, land development, real estate, landscape architecture, or other relevant business or profession, or by reason of civic interest and sound judgment to judge the effects of a proposed building upon the desirability, property values and development of surrounding areas."7 At least two, but not more than three, ARCOM members must be Florida registered architects.8
ARCOM decides whether to approve a new building by applying 10 design review criteria to the building's design.9 Among these criteria are requirements that the building be in "good taste," that it is "in harmony with the proposed developments on land in the general area," that it is not "excessively similar" or "excessively dissimilar" compared to other buildings within 200 feet, and that it complies with Town code requirements "insofar as the location and appearance of the buildings and structures are involved."10
ARCOM denied Burns' application.11 Burns sued the Town in federal court under 42 U.S.C. § 1983.12 He alleged (among other things) that the denial violated his First Amendment right to freedom of expression.13
Burns lost the case on summary judgment.14 On appeal, in a two-to-one decision, the Eleventh Circuit Court of Appeals affirmed.15 The Eleventh Circuit held that the design of Burns' home did not constitute protected expression because the home was effectively hidden behind walls and dense landscape buffers. As such, even if Burns intended to convey a message (a point that the Town conceded), the Court concluded, "A reasonable viewer would not infer some sort of message from Burns's new mansion because, quite simply, a viewer can't see it."16
Burns lost the case not because architecture is not protected expression, but instead because the Court concluded that Burns' particular expression could not be seen.17 Even though the decision was two-to-one, the Court was unanimous that architecture (even residential architecture) may in some cases be imbued with a sufficient communicative element to be protected by the First Amendment.18 Consequently, First Amendment challenges to architectural review standards and related procedures are likely to increase in frequency as architects, their clients, and their lawyers work to figure out the contours of First Amendment protections for expressive architecture.
A Primer on First Amendment Protections for "Expressive Conduct"
The First Amendment provides in part, "Congress shall make no law . . . abridging the freedom of speech . . . ."19 The free speech clause of the First Amendment is "incorporated" against the states (and local governments) by the 14th Amendment.20 That means that, like the federal government, the authority of state and local governments to regulate speech and conduct is constrained by the First Amendment.
The importance of the free speech guarantee of the First Amendment cannot be overstated. The freedom of speech that is protected by the First Amendment is "the 'matrix, the indispensable condition, of nearly every other form of freedom.'"21 "The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought."22 It is not hyperbole to suggest that the First Amendment is the essential legal foundation for American ingenuity and creativity.
The First Amendment's "free speech" guarantee is not limited to written or spoken words. Its protections extend to a wide range of what courts call "expressive conduct"-things like saluting a flag, refusing to salute a flag (or even burning a flag); organizing or participating in a parade; participating in a sit-in; picketing; playing music; and panhandling.23
"In deciding whether particular conduct possesses sufficient communicative elements to bring the First Amendment into play," the U.S. Supreme Court has "asked whether '[a]n intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those who viewed it.'"24 That "particularized message" does not have to be "a narrow, succinctly articulable message."25 Indeed, the "painting of Jackson Pollock, music of Arnold Schoenberg, [and] Jabberwocky verse of Lewis Carroll" are "unquestionably shielded" by the First Amendment.26
Still, not all conduct is protected by the First Amendment. The Supreme Court has specifically rejected "'the view that an apparently limitless variety of conduct can be labeled "speech" whenever the person engaging in the conduct intends thereby to express an idea.'"27 The Court has held that when "'speech' and 'nonspeech' elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms."28
In other words, on the one hand, the government may regulate expressive conduct if the governmental interest is "unrelated to the suppression of free expression."29 On the other hand, if a law is "directed at the communicative nature of conduct" it must, "like a law directed at speech itself, be justified by the substantial showing of need that the First Amendment requires."30
"It is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market, whether it be by the Government itself or a private licensee."31 It follows that "[i]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."32 That is because the First Amendment "reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs."33 The Constitution "forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it."34
Architecture as Expressive Conduct
Architect Philip Johnson put it this way, "Architecture is art, nothing else." Johnson's view is not that different from the view of founding father John Adams-who in 1780 wrote a letter to his wife in which he detailed that he "must study politics and war," so that their sons "may have liberty to study mathematics and philosophy." That study would provide foundation for a nation in which the arts would flourish. According to Adams, "My sons ought to study mathematics and philosophy, geography, natural history, naval architecture, navigation, commerce and agriculture in order to give their children a right to study painting, poetry, music, architecture, statuary, tapestry and porcelain."35
It's fair to say that Philip Johnson's buildings are works of art-even if one does not like them. For example, Wells Fargo Plaza at 925 and 975 South Federal Highway, Boca Raton, Florida is an entirely unremarkable box when viewed from the West and North. However, from the South and East, one notices that the East side of 925 and the Southeast corner of 975 are strikingly "deconstructed."
Rumor around town at the time the project was approved was that-by design-the buildings were intended to comply with the City's then-applicable design standards to the absolute minimum extent possible to obtain required City approvals. The visual impacts of the project (which fronts on a regional arterial street) are significant. It is a radical departure from the architectural forms and styles that are present in its larger context.36 One might say that Johnson's message in the design of Wells Fargo Plaza was critical of local government and its inability to write regulations that would actually protect the established (and then emerging) architectural character, quality, and vocabulary.
But the First Amendment does not only protect work that is biting or critical. Green building designs often combine environmental benefits with artistic components. It would be hard to argue that the Pixel Building, Australia's first carbon-neutral office building (opened in 2010), is not a work of art. The Pixel Building features colorful panels that provide shade and maximize daylight as needed, supports that help process wastewater, a roof that captures rainwater, and a series of vertical wind turbines.37
The more modest design of the Bullitt Center, at 1501 East Madison Street, Seattle, Washington (opened in 2013) incorporates 575 solar panels, a circumstance that not only conveys an easily understood message about environmental sustainability, but also allows the building to generate more electricity than it consumes.
Closer to home, the architecture of the Denver International Airport's Jeppesen Terminal includes peaked roof forms that rise up to 150 feet into the air, reflecting the snow-capped mountains in the distance that served as inspiration for the building. The airport is an iconic landmark. In 2020, the Colorado chapter of the American Institute of Architects selected the Jeppesen Terminal as the recipient of the 2020 Twenty-five Year Award. In accepting that award, Curtis Fentress said:
Our vision for DEN's Passenger Terminal was to create a memorable design - a gateway to Colorado and the West. Twenty-five years later, the design continues to transcend time and is known around the world.38
The expressive component of architecture is not something that is limited to a small group of unique buildings or designs by famous architects. It exists in less prominent projects and routine contexts as well. Consider:
- Architectural forms that are commonly (and immediately) associated with different types of religious buildings.
- The emerging standardization of corporate architecture styles for car dealerships, particularly at principal entries to the showrooms.
- The iconic double-sloped mansard roof that until relatively recently, was as identifiably "McDonalds" as the golden arches themselves.
- The orange accents and orange-doors-behind-glass-curtain-walls that are emblematic of multi-story Pubic Storage configurations.
If (unlike Mr. Burns' proposed mansion) these buildings are visible to the public, then it would appear that there would be a great likelihood that viewers would understand that the building owner intends to convey a message through the building's architecture. Because the message would reach the recipient, (who would in these examples understand that a message was intended), the architecture would be constitutionally protected "expressive conduct." It follows that as a general matter, architectural design standards will tend to implicate the First Amendment.
Do Architectural Design Standards Violate the First Amendment?
Just because the First Amendment is implicated does not mean it is violated. Courts have held that community aesthetics are a substantial governmental interest.39 As such, to promote that interest, the government may regulate expressive architecture using a variety of controls that affect building and structure design. However, the extent of that regulation is subject to constitutional limits.
If regulations are based on the "content" of the design (or otherwise cannot be justified without reference to the "content" of the design), then they are "content-based."40 "Content-based" regulations of free expression are subject to strict scrutiny review.41 Strict scrutiny means that the government must prove that it is using "narrowly tailored" means to advance a "compelling governmental interest."42 No court has held that aesthetics are a "compelling governmental interest."43 As such, if a court finds that an aesthetic control is content-based, that control will be unlikely to survive judicial review.
If regulations are not based on the "content" of the design (and were not adopted based on the government's "[agreement or] disagreement with the message"), then they are "content-neutral."44 Content-neutral regulations face a somewhat lower bar in court. They are upheld if the regulations serve an "an important or substantial governmental interest" and "the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest," and they "leave open ample alternative channels of communication."45
The Burns court discussed this issue briefly in dicta.46 It suggested that Palm Beach's ARCOM standards "are not content-based because they do not distinguish favored from unfavored speech."47 Since mid-century modern designs had been approved in other locations (at a "success rate" of 93.3 percent), the court reasoned that the Town did not disagree with the message of mid-century modern architecture.48
The dissent in Burns highlighted a simmering conflict in First Amendment law when it comes to government controls over expressive architecture. That is, if it is "bedrock" that "the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable," then how does the constitution allow government to impose aesthetic "harmony" by controlling the artistic expression of architects? According to the Burns dissent-
The question in this case is whether a government commission created by the Town of Palm Beach with the Orwellian moniker "ARCOM" may prevent Burns from expressing his philosophy and taste through the architecture of his home and create a work of art on land he owns solely because a majority of the members of the Commission do not like the way it looks.
In my view, the First Amendment -- the most powerful commitment to think, speak, and express in the history of the world -- does not permit the government to impose its majoritarian aesthetic whims on Burns without a substantial reason. The First Amendment's protection of the freedom of speech is not limited to the polite exchange of words or pamphlets. . . . It protects art, like architecture, and it protects artistic expression in a person's home as powerfully as in the public sphere, if not more so.49
Even if the architectural control is simply a general "compatibility" requirement regarding architectural style (as opposed to more specific design mandates), there is likely a content problem. For background, in a different context the Third Circuit Court of Appeals highlighted the First Amendment's role in protecting individual thought and individual expression-
the rights embodied in the Constitution, most particularly in the First Amendment, protect the minority-those persons who march to their own drummers. It is they who need the protection afforded by the Constitution and it is the responsibility of federal judges to ensure that protection.50
It follows that if the First Amendment protects the individual's right to march to his, her, or their "own drummers," then government imposition of aesthetic "harmony" by forcing property owners to "march to" the same "drummer" in terms of design may be constitutionally problematic. Implicitly recognizing this problem, the Burns dissent argued that the ARCOM standards are content-based (and therefore presumptively unconstitutional) because-
. . . the permissibility of construction turns entirely on the content of its design and its architectural style. If Burns had submitted a plan for a Georgian, Regency, or Bermuda Style home -- the only styles currently found in his immediate neighborhood -- construction would have proceeded. In Palm Beach, an owner's right to make full, enjoyable use of his own property turns on the extent to which his aesthetic views conform to those of the majority. This is the essence of content-based regulation.51
Implications for Local Government Architectural Design Controls
It is likely that more cases will follow Burns in order to identify the constitutional boundaries when it comes to design control. For local governments, it is advisable to review design-based regulations, examine their essential purposes, and consider whether and to what degree they actually advance those purposes. For property owners who face unworkable design controls, consider whether and how those controls impact the expressive component of the architecture. It is possible that relief from those controls may have a constitutional dimension.
Covenants, Leases, and Historic Preservation
The Architectural Design Controls discussed do not include architectural review by property owners' associations or landlords, and also do not include design standards that are used to implement historic preservation programs. The First Amendment only restricts the power of government to regulate free speech. It does not affect the ability of private parties to enforce covenants and contracts. As such, a property owners' association may enforce valid covenants that affect building and structure design.52 Likewise, a landlord may enforce a lease contract that restricts the right of a tenant to make changes to a building or structure without prior landlord approval.
Historic preservation programs involve a more complex set of public interests. They also typically involve multiple, interrelated methods of implementation, which may include such things as voluntary participation, private agreements, tax credits, and incentives. This is not to say that the First Amendment is never implicated in historic preservation. Indeed, it might be. However, that is a different discussion.
1. Burns v. Town of Palm Beach, 99 F.3d 1317, 1349 (11th Cir. 2021).
2. Id. at 1348-49.
3. Id. at 1322.
7. Id. at 1323.
9. Id. at 1323-24.
11. Id. at 1322.
12. Id. at 1328.
14. Id. at 1329-30.
15. Id. at 1352-53.
16. Id. at 1337.
18. Id. at 1349, 1354.
19. U.S. Const. Amend. 1
20. See Gitlow v. New York, 268 U.S. 652 (1925).
21. Curtis Pub. Co. v. Butts, 388 U.S. 130, 145 (1967) (quotation omitted).
22. Ashcroft v. Free Speech Coalition, 535 U.S. 234, 253 (2002).
23. See Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557, 569 (1995); Texas v. Johnson, 491 U.S. 397, 399, 404 (1989); Ward v. Rock Against Racism, 491 U.S. 781, 790 (1989); McCraw v. City of Oklahoma City, 973 F.3d 1057, 1066 (10th Cir. 2020).
24. Johnson, 491 U.S. at 404 (quoting Spence v. State of Washington, 418 U.S. 405, 410-11 (1974)).
25. Hurley, 515 U.S. at 569.
27. Johnson, 491 U.S. at 404 (quoting United States v. O'Brien, 391 U.S. 367, 376 (1968)).
28. O'Brien, 391 U.S. at 376.
29. Id. at 377.
30. Johnson, 491 U.S. at 406 (quoting Community for Creative Non-Violence v. Watt, 703 F.2d 496, 622 (D.C. Cir. 1983) (Scalia, J., dissenting), rev'd sub nom., Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984)) (emphasis in original).
31. Red Lion Broadcasting Co. v. F.C.C., 395 U.S. 367, 390 (1969).
32. Johnson, 491 U.S. at 414.
33. United States v. Stevens, 559 U.S. 460, 470 (2010).
34. Id. The Court also noted, "[t]he Constitution is not a document 'prescribing limits, and declaring that those limits may be passed at pleasure.'" Id., (quoting Marbury v. Madison, 5 U.S. 137, 178 (1803)).
35. Letter from John Adams to Abigail Adams, post 12 May 1780 [electronic edition]. Adams Family Papers: An Electronic Archive. Massachusetts Historical Society. http://www.masshist.org/digitaladams/ (emphasis added).
36. In the grand tradition of Spanish monikers for development in Southeast Florida, some of the author's co-workers at the time nicknamed the project "el feo."
37. More information on the Pixel Building is available at https://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=1199&context=bcs.
38. Willis, Henry. "Denver International Receives Architects' Design Award." Passenger Terminal Today. https://www.passengerterminaltoday.com/news/airport/denver-international-receives-architects-design-award.html (August 9, 2020).
39. See, e.g., City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 416 (1993).
40. Reed v. Town of Gilbert, Ariz., 576 U.S. 155, 163-64 (2015).
42. Id. at 163.
43. In order to reach the question of whether Gilbert, Arizona's sign code was "narrowly tailored," the Reed Court assumed for the sake of argument that aesthetics were a "compelling" interest. Reed, 576 U.S. at 171. However, the Court did not hold that they are a "compelling" interest.
44. Turner Broadcasting System, Inc. v. F.C.C., 512 U.S. 622, 642 (1994).
45. Id. at 662 (quoting O'Brien, 391 U.S. at 377); Ward, 491 U.S. at 798-803.
46. "Dicta" is short for "obiter dicta," which means "other things said." In law, it refers to "a judge's incidental expression of opinion, not essential to the decision and not establishing precedent."
47. Burns, 999 F.2d at 1348.
49. Id. at 1353.
50. Circle Schools v. Pappert, 381 F.3d 172, 183 (3d Cir. 2004).
51. Id. at 1378.
52. Whether a special district (a special purpose government organized under Title 32, Colorado Revised Statutes) can enforce private covenants related to architectural design is a closer question.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.