First Amendment

By Debra Cassens Weiss

June 9, 2021, 1:20 pm CDT

For the last 18 years, Florida resident Donald Burns has been living in his 10,000-square-foot mansionwhich he describes as a traditional homeon the Atlantic Ocean in Palm Beach, Florida. Photo from the 11th U.S. Circuit Court of Appeals at Atlantas June 8 decision.

A federal appeals court has rejected constitutional claims by a Florida resident who sued when a town rejected his plans for a new beachfront mansion that would be dissimilar to nearby homes.

The 11th U.S. Circuit Court of Appeals at Atlanta ruled against Donald Burns of Palm Beach, Florida, in a 2-1 decision Tuesday.

The court said the town did not violate Burns free speech rights under the First Amendment and did not violate his rights to due process and equal protection under the 14th Amendment.

Past news coverage from the Palm Beach Post described Burns as a telecommunications mogul. He sold his existing mansion for $28 million last year while the appeal was pending, according to the Real Deal.

Burns had sought to tear down his traditional beachfront mansion and to replace it with a mansion nearly twice the size in midcentury modern style. Burns said the new mansion would reflect his evolved philosophy of simplicity in lifestyle and living with an emphasis on fewer possessions.

The town of Palm Beachs architectural review commission had rejected Burns plans under a mandate to achieve comprehensive cohesiveness in development. Applying its criteria, the commission said the proposed mansion was not in harmony with proposed developments in the general area and was too dissimilar to nearby homes.

Judge Robert Luck, an appointee of former President Donald Trump, wrote the majority opinion, joined by Judge Edward Carnes, an appointee of former President George H.W. Bush. Judge Stanley Marcus, an appointee of former President Bill Clinton, dissented.

In my view, Marcus wrote in dissent, the First Amendmentthe most powerful commitment to think, speak and express in the history of the worlddoes not permit the government to impose its majoritarian aesthetic whims on Burns without a substantial reason.

The majority concluded that there was no First Amendment violation because there was no great likelihood that some sort of message would be understood by those who viewed Burns new beachfront mansion.

The majority also found no violation of Burns 14th Amendment rights because the commissions criteria were not unconstitutionally vague and were not applied differently to Burns.

The majority criticized Marcus dissent for discussing architectural styles and articles that werent part of the case record.

The majority said it was concluding that Burns new mansion was not expressive conduct protected by the First Amendment while saving for another day the harder issue of whether residential architecture can ever be expressive conduct.

We have not decided, as the dissenting opinion says, that Philip Johnsons Glass House isnt expressive conduct, but tattooing is; we have not decided that Jeffersons Monticello isnt protected under the First Amendment, but nude dancing is; and we have not decided that the Empire State Building doesnt meet the Johnson test [for protective expression], but elevator music does.

In U.S. Supreme Court cases protecting expressive conduct, the conduct could be viewed, the appeals majority said.

The conduct was not like the proverbial tree, which was out of view because it was deep in the forest, the majority wrote.

In Burns case, however, the message that Burns sought to convey through his proposed mansions simple lines and minimal decorative elements would be shielded from view by a limestone wall, a louvered gate and heavy landscaping.

A viewer cannot infer a message from something the viewer cannot view, the appeals court said. From Day One, Burns wanted to conceal from his neighbors what he now says is his message.

Even if viewers could see Burns new mansion through the landscaping, there is still no great likelihood that they would understand that the home conveyed some sort of message, the appellate majority said.

A reasonable observer would view Burns new mansion as a really big house but not as an expression of some sort of message, the court said.

The decision, Burns v. Town of Palm Beach, upheld a grant of summary judgment to Palm Beach, Florida.

Florida Politics had coverage of the opinion.

See the article here:

Florida resident loses First Amendment appeal in suit over rejection of his mansion plans - ABA Journal