One of the trickier aspects of First Amendment jurisprudence has always been deciding whether and when conduct receives constitutional protection.  Regulations that involve words or speech are easy enough.  But does the First Amendment protect the heap of garbage your neighbor piled in his front lawn to protest the city’s tardy trash collection?  (Probably, but the city can constitutionally regulate it anyway.)  Does the Constitution care if you want to direct a spotlight against your neighbor’s home to express your displeasure with his trash heap?  (Harder to say, but probably not.)  These and other questions continue to vex courts assessing the First Amendment’s reach.

Enter Donald Burns and his quest to build a massive midcentury mansion amidst minimally more modest mansions in Palm Beach, Florida.  (We’ve reported on his effort before.)  Palm Beach considers itself “a worldwide synonym for beauty, quality and value,” and to preserve that reputation, it applies architectural review to new homes.  Its standards observe that the “essential foundation of beauty in communities is harmony” and therefore prohibit structures that are too dissimilar from the surrounding buildings.

Dissatisfied with his 10,000 square-foot mansion, Burns approached Palm Beach about replacing it with a 20,000 square-foot midcentury design that Burns considered, a “means of communication and expression of the person inside: Me.”  As it happened, however, Burns’s neighbors and the city’s architectural review commission were rather more interested in how the building appeared, on the outside.  Concluding it was too tall and too massive in relation to surrounding homes, the commission rejected the proposed design.

Burns took to federal court, alleging violations of the First and Fourteenth Amendments.  As relevant for this blog, Burns claimed that the First Amendment protected his home’s midcentury design as a reflection of “evolved philosophy of simplicity in lifestyle” and his message that “he was unique and different from his neighbors.”

After Burns lost on a motion for summary judgment, the case arrived before the 11th Circuit, which considered whether Burns’s concerns implicated the First Amendment at all.  They didn’t.  But perhaps not for the reason you’d think.

Over a vociferous dissent, and declining to decide whether the First Amendment could ever apply to architectural choices, the panel majority concluded Burns’s design didn’t raise a First Amendment concern because Burns had hidden it from view.  Under the two-part test announced in Texas v. Johnson, 491 U.S. 397 (1989), which considers whether the party intended to convey a message and whether someone would have understood it as such, the majority held that no one could have received Burn’s message in the first place.

Yes, they said, Burns had every intent for his design to express something, but then he hid it behind walls and landscaping so that no one could see it.  At most, the house might have peeked above the tree tops, but being tall, the majority said, was not itself a message: “[L]arge trash heaps also have height and mass, and no one would say they are midcentury modern masterpieces.”  Even if a viewer could catch a glimpse, they would at most receive that impression that Burns had constructed “a really big house”—but not any sort of message.

The dissent, on the other hand, considered architecture self-evidently expressive and deserving of First Amendment protection.  Mechanically, however, it disagreed with the majority’s factual conclusion (an odd thing in an opinion upholding summary judgment) that no one would be able to see Burns’s home.  Situated as it was next to a public beach and above the treetops, the home could reach at least some viewers, thought the dissent.  In its view, the majority effectively condemned architecture to suffer without First Amendment protections, while affording constitutional safeguards to tattoo parlors and elevator music.

Burns hasn’t filed a petition for certiorari with the Supreme Court, so it appears the saga has concluded—at least until he comes up with another design.

Burns v. Town of Palm Beach, 999 F.3d 1317 (11th Cir. 2021).