DO AMERICANS have a First Amendment right to express themselves through the custom design of their home, thereby avoiding local regulations that seek to promote community aesthetics? That’s the question a divided panel of the Eleventh Circuit recently addressed—the first federal appellate court to do so—in Donald Burns v. Town of Palm Beach (2021).
For decades, courts have concluded that the First Amendment protects far more than just the spoken and written word; its protections have been extended to nude dancing, tattooing, flag burning and protest marching. Nevertheless, because “it is possible to find some kernel of expression in almost every activity a person undertakes” (City of Dallas v. Stanglin, 1989), the Supreme Court has 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” (United States v. O’Brien, 1968). First Amendment protections extend only to conduct that is “inherently expressive” in the constitutional sense.
No appellate court had previously addressed whether residential architecture is inherently expressive in that sense. While the Eleventh Circuit found no constitutional protections regarding its unique facts, Burns is notable for the analysis by the majority and the dissent of issues at the crossroads of property rights, land use and zoning, and constitutional law.
Donald Burns, a resident of Palm Beach, Florida, and a former telecom executive, sought to demolish his 13,000-square-foot Bermuda-style mansion and replace it with a midcentury modern home nearly twice the size. His new two-story oceanfront mansion would have a basement garage, wine storage area and steam room, and would be screened from view by a limestone wall, louvered gate, and heavy landscaping.
Palm Beach’s seven-member architectural review commission, experienced in art, architecture, and real estate, denied Burns a permit, finding that the proposed residence did not satisfy the town’s “look-alike” ordinance because it was excessively dissimilar from other homes within 200 feet with respect to specified architectural and design criteria.
Burns sued the town in federal court, claiming it had denied his First Amendment rights to express himself through his residential aesthetic. He complained that the commission had rejected his proposed design based solely on that aesthetic—in other words, simply because they didn’t like midcentury modern-style homes.
During the litigation, Burns asserted that he sought through his design to communicate his “evolved philosophy of simplicity in lifestyle” and the message that he was “unique and different” from his neighbors. He wanted his new mansion “to be a means of communication and expression of the person inside: me.”
“For decades, courts have concluded that the First Amendment protects far more than just the spoken and written word.”
A federal magistrate judge ruled for Palm Beach, albeit also finding that the proposed residence did not fall neatly into existing First Amendment case law. Burns claimed the proposed house itself, not the design or construction of it, was protected. Given the meaningful, noncommunicative function of a residence, the magistrate judge analogized the structure to potentially expressive merchandise and incorporated the Second Circuit’s “dominant purpose” framework into the Supreme Court’s two-prong expressive conduct test.
The magistrate judge considered whether the predominant purpose of the structure was to communicate a constitutionally protected message into the expressive conduct test. He concluded it was not, and the district court agreed.
A sharply divided three-judge panel of the Eleventh Circuit ruled 2-1 against Burns in an opinion that ran to more than 130 pages. Writing for the majority, Judge Robert Luck agreed that Burns’s proposed mansion was not expressive conduct but “just a really big beachfront house that can’t be seen, located on a quiet residential street in Palm Beach, Florida.”
Judge Luck found no need to consider whether the predominant purpose of the mansion was to live in or to send a message because the second prong of the expressive conduct test was not satisfied. That two-part test requires (1) an intent to convey a particular message; and (2) a great likelihood that the message would be understood by those who viewed it (Spence v. Washington, 1974, and Texas v. Johnson, 1989).
The majority held that the plans called for “carefully shielding” most of the home from view—and even if the structure could be seen, there was no evidence a reasonable viewer would understand it to be anything other than “a really big house.”
The majority expressly declined to decide the admittedly “harder issue” of whether residential architecture can ever be expressive conduct protected by the First Amendment and, if so, what is the proper First Amendment test to apply.
In his dissent, Judge Stanley Marcus pointedly criticized his colleagues for curtailing the freedom of expression. Beginning with the premise that architecture is art, he found it difficult to square the majority opinion with well-settled law extending First Amendment protection to artistic expression in all its forms.
Judge Marcus wrote that he believed the Spence/Johnson test governed but found the majority’s application of it “deeply flawed” and improperly influenced by the “dominant purpose” test. Applying that test to residential architecture, he wrote, “would virtually ensure that no home would ever qualify for First Amendment protection.”
Contrary to the majority, Judge Marcus would have found the second prong of Spence/Johnson satisfied. The proposed mansion would have been visible, he believed—including from its public beach or by an invited guest—and a reasonable viewer would understand a distinct message from the context and International Style design.
Burns petitioned for certiorari to the Supreme Court, which denied his request. Along the way, he gathered support from groups including the National Association of Home Builders, the Cato Institute, and the Goldwater Institute.
Burns’s proposed mansion—20,000-plus square feet shielded by privacy walls, landscaping, and the ocean—was far from a perfect vehicle for deciding whether residential architecture can ever be expressive conduct protected by the First Amendment. The majority made clear that it was not concluding that residential architecture can never be protected expression under the First Amendment. Still, neither the majority nor the dissent finessed a test that can apply across the board.
Residential architecture is inherently functional and semipermanent. It might be art, but it isn’t pure speech entitled to heightened protection, as even the dissent recognized. Even the expressive conduct test falls short—most notably because a structure is not conduct. Self-serving testimony from a homeowner that he or she intends to send a message threatens to swallow the Spence/Johnson test. Further, while a custom design might weigh in favor of a reasonable viewer discerning some expressive message, that message is likely to be entirely ambiguous, as the magistrate judge noted.
Perhaps an individual lives in a home of particular design because it was the only oceanfront lot available, or maybe it was the only place she could afford. Consideration of whether the predominant purpose of the structure is to communicate some message is critical to the First Amendment test.
A team of women at Jones Foster defended the Town of Palm Beach in Donald Burns v. Town of Palm Beach, a landmark lawsuit brought under the First Amendment of the United States Constitution claiming the right to freedom of expression in residential architecture. That defense team included Litigation Shareholder Joanne M. O’Connor, Litigation attorney Hanna B. Rubin, paralegal Karen Bould, and Litigation Shareholder Margaret L. Cooper (in memoriam). Ms. Cooper argued dispositive motions before the District Court and Ms. O’Connor handled the oral argument before the Eleventh Circuit.
This article originally appeared in the Best Lawyers®"Women in the Law" Business Edition Spring 2023 publication on June 2, 2023.
Jones Foster Shareholder Joanne M. O’Connor is a Florida Bar Board Certified specialist in Business Litigation, representing clients in a wide range of complex commercial, real estate, and governmental litigation matters. Ms. O’Connor is experienced in defending actions seeking certification of nationwide and statewide classes and handles jury and non-jury trials and appeals in state and federal courts and before private arbitration panels. Additionally, she serves as an attorney’s fees and professional liability expert witness.
Jones Foster is a commercial and private client law firm headquartered in West Palm Beach, Florida. Established in 1924, the firm has served as an integral part of South Florida’s growth and prosperity for nearly a century. Through a relentless pursuit of excellence, Jones Foster delivers original legal solutions that help clients, colleagues, and the community to move forward. The firm’s attorneys focus their practice in Real Estate, Litigation & Dispute Resolution, Private Wealth, Trusts & Estates, Corporate & Tax, and Land Use & Governmental. For more information, please visit www.jonesfoster.com.
