The Volokh Conspiracy

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Architecture and the First Amendment Before the Supreme Court

Eleventh Circuit found that architectural design would not be understood as protected speech.


In June, I wrote about Burns v. Town of Palm Beach. This case presented a perennial conflict at the intersection of property law and constitutional law: is architectural design protected by the First Amendment. A divided panel of the Eleventh Circuit rejected the claim that architectural design would be understood as protected speech.

Burns has now filed a cert petition. It prevents a recurring question in land-use litigation:

Did the Town of Palm Beach violate Burns's First Amendment rights by denying his proposed home design based solely on aesthetics when the design met all objective zoning criteria?

The brief flagged exchanges from the Masterpiece Cakeshop oral arguments that I had forgotten about. Justices Alito and Breyer inquired about the relationship between the First Amendment and architecture.

JUSTICE ALITO: What would you say about an architectural design? Is that entitled to—not entitled to First Amendment protection because one might say that the primary purpose of the design of a building is to create a place where people can live or work?

JUSTICE BREYER: So, in other words, Mies or Michelangelo or someone is not protected when he creates the Laurentian steps, but this cake baker is protected when he creates the cake without any message on it for a wedding? Now, that—that really does baffle me, I have to say.

The Goldwater Institute and the Cato Institute also filed an amicus brief that offers three procedural safeguards:

This Court has said that any time government requires a person to obtain a permit in order to exercise any of the "freedoms which the Constitution guarantees," three procedural safeguards must be satisfied: (1) the criteria for obtaining the permission must be clear and unambiguous, (2) there must be a specified deadline on which the applicant will receive an answer, and (3) the applicant must have an opportunity to go before a neutral judge to challenge the denial of a permit if she believes that denial wrongful

The town's brief is due on January 24.