Eleventh Circuit holds that custom-designed residential architecture is not protected expression under the First Amendment

This post was authored by Amy Lavine, Esq.

In an Eleventh Circuit case decided in June the plaintiff contended that his First Amendment rights were infringed by the town’s architectural regulations and the denial of his application to build a mid-century modern mansion. While the homeowner claimed that this choice of architectural style would “reflect his evolved philosophy of simplicity in lifestyle,” the town’s architectural commission determined that the mansion as proposed would not be in harmony with general area and would be “excessively dissimilar” to other homes within 200 feet in terms of its architecture, arrangement, mass, and size. The Eleventh Circuit upheld thisdecision and dismissed the plaintiff’s First Amendment claim, rejecting the argument that custom-designed residential architecture could be a form of unique expressive conduct.

The court reached its decision by applying the Supreme Court’s two-part test from Texas v. Johnson, 491 U.S. 397 (1989), which asks: (1) “whether ‘[a]n intent to convey a particularized message was present,'” and (2) whether “the likelihood was great that the message would be understood by those who viewed it.” While it was conceded that that the plaintiff had an intent to convey a message, the court held that he could not meet the second part of this test, since “a reasonable viewer would not infer some sort of message from Burns’s new mansion because, quite simply, a viewer can’t see it.” As the court explained: “Here, Burns sought to express a message through his new mansion’s simple lines, minimal decorative elements, and open spaces built of solid, quality materials, but his design calls for carefully shielding those purportedly expressive elements from any viewer. A limestone wall and louvered gate prevent a person driving or walking north along Ocean Boulevard from seeing the design at all…. A viewer cannot infer a message from something the viewer cannot view.” 

Even if potential viewers could see the homeowner’s proposed mid-century modern mansion, the court still would have dismissed the plaintiff’s First Amendment claim. As it explained, there was no great likelihood that viewers would understand that the mansion’s architectural style was intended to convey any sort of message. Rather, the court found that “a reasonable observer would view Burns’s new mansion as a really big house, but not as an expression of some sort of message.”

Burns v. Town of Palm Beach, 999 F.3d 1317 (11th Cir 6/8/21)