Donald Burns v. Town of Palm Beach

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[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 18-14515

________________________

D.C. Docket No. 9:17-cv-81152-BB

DONALD BURNS,

Plaintiff-Appellant,

versus

TOWN OF PALM BEACH,

a Florida municipal corporation,

Defendant-Appellee.

________________________

Appeal from the United States District Court

for the Southern District of Florida

________________________

(June 8, 2021)

Before LUCK, ED CARNES, and MARCUS, Circuit Judges.

LUCK, Circuit Judge:

Donald Burns wants to knock down his “traditional” beachfront mansion and

build a new one, almost twice its size, in the midcentury modern style. The new

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mansion, Burns says, will reflect his evolved philosophy of simplicity in lifestyle

and living with an emphasis on fewer personal possessions. The new two-story

mansion will have a basement garage, outdoor pool and spa, cabana, and exercise

room.

To build his new mansion, Burns had to get the approval of the Town of Palm

Beach’s architectural review commission. Palm Beach created the commission to

review building permit applications to make sure new structures were “in harmony

with the proposed developments on land in the general area” and “not excessively

dissimilar in relation to any other structure existing . . . within 200 feet of the

proposed site in respect to . . . [a]rchitectural compatibility[,] . . . [a]rrangement of

the components of the structure[,] . . . [a]ppearance of mass from the street,” and

“[d]iversity of design that is complimentary with the size and massing of adjacent

properties.” In other words, the town doesn’t want elephants next to poodles. Or,

as the town explained in its findings creating the commission, Palm Beach “has

become a worldwide synonym for beauty, quality and value” and the “essential

foundation of beauty in communities is harmony.” “The task of the architectural

commission is . . . to preserve various elements of urban beauty and require that new

projects enhance the existing elements” in order “to achieve a pleasant and

comprehensive cohesiveness in community development.”

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Applying its criteria, the architectural review commission denied Burns’s

building permit. The commission found that his new mansion was not in harmony

with the proposed developments on land in the general area and was excessively

dissimilar to other homes within 200 feet in terms of its architecture, arrangement,

mass, and size.

Burns sued the town, claiming that the criteria the commission used to deny

his building permit violated his First Amendment free speech rights and his

Fourteenth Amendment rights to due process and equal protection. The district court

granted summary judgment for the town. We conclude that summary judgment was

not granted too early and affirm on the First Amendment claim because there was

no great likelihood that some sort of message would be understood by those who

viewed Burns’s new beachfront mansion. We also affirm the summary judgment on

the Fourteenth Amendment claims because the commission’s criteria were not

unconstitutionally vague and Burns has not presented evidence that the commission

applied its criteria differently for him than for other similarly situated mansion-

builders.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Palm Beach’s Architectural Review Commission

Palm Beach created its architectural review commission because the town is

“internationally known . . . for beauty, quality and value” and “beautiful

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communities can be created only through a deliberate search for beauty on the part

of the community leadership, architects, planners, realtors and the building

industry.” Town of Palm Beach, Fla., Code § 18-146(a)–(b). 1 The “essential

foundation of beauty in communities,” the town found, “is harmony.” Id. § 18-

146(e). “The plan for achieving beauty must grow out of special local characteristics

of site, aesthetic tradition and development potential.” Id. The commission was

directed to “preserve various elements of urban beauty and require that new projects

enhance the existing elements.” Id. § 18-146(d). Palm Beach’s “intent,” it made

clear, was “to achieve a pleasant and comprehensive cohesiveness in community

development.” Id. § 18-146(e).

There are seven commissioners on the architectural review commission. Id.

§ 18-166(a). The commissioners must be “specially qualified” by “training or

experience in art, architecture, community planning, land development, real estate,

landscape architecture, or other relevant business or profession, or by reason of civic

interest and sound judgment to judge the effects of a proposed building upon the

desirability, property values and development of surrounding areas.” Id. § 18-

167(a). No less than two, but no more than three, commissioners must be Florida-

1

The dissenting opinion uses the name “ARCOM” for the architectural review commission

and then calls the name it uses “Orwellian.” Dissenting Op. at 72. If by Orwellian the dissenting

opinion means any government agency that administers regulations impacting our lives, then the

architectural review commission is as Orwellian as the state board of therapeutic massage, the

local dog catcher, and every one of the alphabet soup of departments and agencies and bureaus in

Washington, D.C.

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registered architects. Id. § 18-166(a). And one commissioner must be a landscape

architect or a “master gardener.” Id.

Except for minor changes and changes to historic buildings, all applications

for demolition and construction in the town must be approved by the commission.

Id. § 18-175(a). The commission reviews an application for a building permit based

on the criteria in section 18-205(a) of the town’s code. Id. If an applicant meets the

criteria, the commission “shall” approve the application. Id. § 18-205(b). Section

18-205(a) identifies ten criteria for the commission to consider:

(1) The plan for the proposed building or structure is in

conformity with good taste and design and in general contributes to the

image of the town as a place of beauty, spaciousness, balance, taste,

fitness, charm and high quality.

(2) The plan for the proposed building or structure indicates the

manner in which the structures are reasonably protected against

external and internal noise, vibrations, and other factors that may tend

to make the environment less desirable.

(3) The proposed building or structure is not, in its exterior

design and appearance, of inferior quality such as to cause the nature of

the local environment to materially depreciate in appearance and value.

(4) The proposed building or structure is in harmony with the

proposed developments on land in the general area, with the

comprehensive plan for the town, and with any precise plans adopted

pursuant to the comprehensive plan.

(5) The proposed building or structure is not excessively similar

to any other structure existing or for which a permit has been issued or

to any other structure included in the same permit application within

200 feet of the proposed site in respect to one or more of the following

features of exterior design and appearance:

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a. Apparently visibly identical front or side elevations;

b. Substantially identical size and arrangement of either doors,

windows, porticos or other openings or breaks in the elevation facing

the street, including reverse arrangement; or

c. Other significant identical features of design such as, but not

limited to, material, roof line and height of other design elements.

(6) The proposed building or structure is not excessively

dissimilar in relation to any other structure existing or for which a

permit has been issued or to any other structure included in the same

permit application within 200 feet of the proposed site in respect to one

or more of the following features:

a. Height of building or height of roof.

b. Other significant design features including, but not limited to,

materials or quality of architectural design.

c. Architectural compatibility.

d. Arrangement of the components of the structure.

e. Appearance of mass from the street or from any perspective

visible to the public or adjoining property owners.

f. Diversity of design that is complimentary with size and

massing of adjacent properties.

g. Design features that will avoid the appearance of mass through

improper proportions.

h. Design elements that protect the privacy of neighboring

property.

(7) The proposed addition or accessory structure is subservient

in style and massing to the principal or main structure.

(8) The proposed building or structure is appropriate in relation

to the established character of other structures in the immediate area or

neighboring areas in respect to significant design features such as

material or quality or architectural design as viewed from any public or

private way (except alleys).

(9) The proposed development is in conformity with the

standards of this Code and other applicable ordinances insofar as the

location and appearance of the buildings and structures are involved.

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(10) The project’s location and design adequately protects unique

site characteristics such as those related to scenic views, rock

outcroppings, natural vistas, waterways, and similar features.

Id. § 18-205(a).

Burns’s New Mansion

For the last eighteen years, Burns has been living in his 10,063 square foot

mansion—which he describes as a “traditional home”—on the Atlantic Ocean in

Palm Beach.

But in 2013, Burns decided he wanted to knock down the “traditional home” so he

could build a new mansion in the midcentury modern style to convey the evolution

of his personal philosophy. He wanted his new mansion “to be a means of

communication and expression of the person inside: Me.” He picked a design of

international or midcentury modern architecture because it emphasized simple lines,

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minimal decorative elements, and open spaces built of solid, quality materials.

According to Burns, the midcentury modern design communicated that the new

home was clean, fresh, independent, and modern—a reflection of his evolved

philosophy of simplicity in lifestyle and living with an emphasis on fewer personal

possessions. It also communicated Burns’s message that he was unique and different

from his neighbors.

Burns initially submitted a plan to the town council that proposed demolishing

his existing 10,063 square foot mansion and building in its place a 25,198 square

foot mansion in the midcentury modern design. His emphasis on fewer personal

possessions included two stories and a basement containing a five-car garage, wine

storage area, and steam room. The first floor would have an open-air entry, guest

rooms, dining room, kitchen, family room, powder rooms, and living room. The

open-air entry would lead to the pool, spa, and cabana. The second floor would have

more guest rooms, an exercise room, and the master bedroom.

At the council’s meeting on the application, Burns’s landscape architect

testified that the “most important design criteri[on],” as directed by Burns, was “to

screen th[e] house properly, and more than adequate.” The landscaper proposed

curtaining the house from the public road with heavy landscaping, including a

sixteen-to-eighteen-foot-tall hedge and a large specimen of trees. The design also

called for landscaping to buffer the new mansion from Burns’s northern and southern

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neighbors. After some of Burns’s neighbors opposed the plan, the town council

deferred action until the architectural review commission considered the building

permit.

At the commission’s May 25, 2016 meeting, Burns presented the testimony

of his landscaper, attorney, architects, and expert architectural witness, David Chase.

The landscaper told the commission about the “much more dense” landscaping that

the new design would implement compared with Burns’s current mansion. Facing

the street, Burns proposed planting a “tall, green callifolium wall or hedge” to

“separate” the “street from the house and provide screening and a buffer.” The

design would also stagger coconut palms in between the house and the street. To

“block views from the neighbors to the north,” Burns would plant a fourteen-to-

sixteen-foot-tall hedge, coconut palms at least thirty-two feet tall, and eighteen-to-

twenty-two-foot-tall grey wood trees. The design called for similar landscaping on

the south side.

Burns’s architectural expert, Chase, submitted a report and testified about the

architectural styles in Palm Beach and previous applications that the commission

had approved. The report identified fifteen midcentury modern design applications,

other than Burns’s, that the commission considered from 1979 to 2016. Chase

documented the commission’s deliberations on each application and some of the

individual commissioners’ statements about the designs. He compared the

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commissioners’ observations to the eight design features in section 18-205(a)(6) and

categorized the commission’s reception as good, bad, or no comment for each

criterion. He also identified where a commissioner found a design feature

“excessively dissimilar” in relation to nearby structures. The commission had

approved fourteen applications and denied one. Chase gave his professional opinion

that Burns’s design met the commission’s criteria in section 18-205(a)(6).

At the meeting, Burns’s neighbors told the commission that the new mansion

was too large for the lot, too dissimilar with the neighborhood, had inappropriate

glass-to-mass ratios, and invaded their privacy. The commission approved the

demolition but voted to defer its decision on the building permit.

At the commission’s August 24, 2016 meeting, Burns presented a revised

design. Burns reduced the square footage of his new mansion by twenty-two

percent—to 19,594 square feet—but kept similar plans for the landscaping. His

neighbors again testified in opposition to the plan. And the commission again

deferred its decision.

At the commission’s next meeting, on September 28, 2016, Burns presented

another revised plan.

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(behind the wall)

Among other changes, and to alleviate some of the concerns, he added a limestone

wall between the front of the mansion and Ocean Boulevard (the residential street in

front of the home) with a louvered gate. The gate had angled vertical slats (the

louvers) spaced at regular intervals across its length to allow for air and light to come

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through. The angle of the louvers prevented anyone driving north on

Ocean Boulevard from seeing the house. Drivers headed south would not see the

house because of the heavy landscaping on the other side of the gate. Even with the

changes, the commission voted five-to-two to deny his application. The commission

explained why it denied the building permit based on the section 18-205(a) criteria:

(4) The proposed building or structure is not in harmony with the

proposed developments on land in the general area, with the

comprehensive plan for the town, and with any precise plans adopted

pursuant to the Comprehensive Plan.

...

(6) The proposed building or structure is excessively dissimilar in

relation to any other structure . . . within 200 feet of the proposed site

in respect to . . .

(c) Architectural compatibility.

(d) Arrangement of the components of the structure.

(e) Appearance of mass from the street or from any perspective visible

to the public or adjoining property owners.

(f) Diversity of design that is complimentary with size and massing of

adjacent properties.

. . . [and]

(8) The proposed development is not in conformity with the standards

of this Code and other applicable ordinances insofar as the location and

appearance of the buildings and structures are involved.

Burns Sues Palm Beach in Federal District Court

Burns could have appealed the commission’s decision to the town council and

then the state circuit court. See Town of Palm Beach, Fla., Code §§ 18-177, 134-

173. Instead, Burns sued Palm Beach in federal district court under 42 U.S.C.

section 1983. In his two-count complaint, Burns brought a Fourteenth Amendment

due process void-for-vagueness challenge and an equal protection challenge to

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section 18-146 (the section explaining the town’s findings and purpose for creating

the architectural review commission) and section 18-205(a) (the section with the

commission’s criteria for approving building permits) of the town’s ordinances.

Burns also alleged that the two ordinances violated his First Amendment right to

speak through the midcentury modern design of his new mansion. Burns claimed

that the ordinances violated his constitutional rights both on their face and as applied

to him.

Before discovery, Palm Beach moved to dismiss Burns’s complaint for failure

to state a claim and for summary judgment. Burns responded on the merits and,

consistent with Federal Rule of Civil Procedure 56 and the local rules, filed

affidavits in opposition to the motion and a statement of material facts. Burns also

submitted a declaration under rule 56(d)2 that identified several areas of discovery

he needed so he could respond to the town’s summary judgment motion. Burns told

the district court that he wanted discovery on the records of the commission’s

hearings to show its lack of discernable standards, to get the legislative history of

the relevant ordinances and the commission’s rules and regulations, to hire an expert,

and, “[d]epending on the documents obtained,” to take depositions.

2

Federal Rule of Civil Procedure 56(d) provides, “If a nonmovant shows by affidavit or

declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the

court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or

declarations or to take discovery; or (3) issue any other appropriate order.” Fed. R. Civ. P. 56(d).

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While the summary judgment motion was pending, discovery continued.

Burns filed supplemental documents and exhibits opposing summary judgment.

And the district court, at the parties’ request, extended the discovery deadline three

times.

Palm Beach’s summary judgment motion was referred to the magistrate judge.

The magistrate judge held a hearing on the motion about six months after it was filed

but before the close of discovery. The magistrate judge asked Burns whether he was

ready on the summary judgment motion, and Burns said he was “ready to

proceed . . . on the facial claim[s],” but “want[ed] to be able to complete discovery”

before a decision on the as-applied claims. Burns said he wanted to submit expert

testimony on architecture as an art form, but he noted that he had already submitted

other evidence showing that architecture was art and there was no dispute that it was.

Burns also told the magistrate judge that he wanted transcripts of the commission

meetings because Palm Beach had objected that Burns’s summaries were hearsay.

Two months later, the magistrate judge recommended granting Palm Beach’s

summary judgment motion. The magistrate judge first said that Burns had waived

any objection that summary judgment was premature because he opposed Palm

Beach’s motion on the merits. And Burns did not have standing to challenge section

18-146 (the findings and purpose section) because he was not injured by that

ordinance.

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As to Burns’s First Amendment claim against the commission’s criteria in

section 18-205(a), the magistrate judge adopted the three-part predominant-purpose

test from Mastrovincenzo v. City of New York, 435 F.3d 78 (2d Cir. 2006) for

determining whether the new mansion was constitutionally protected speech. The

predominant-purpose test asks whether: (1) the owner of the structure subjectively

intended to communicate a message; (2) the predominant purpose of the structure

was to communicate a message; and (3) a reasonable observer viewing the structure

in its surrounding context had a great likelihood of understanding it to be

predominantly communicating some message.

The town conceded that Burns intended to communicate a message, so that

wasn’t an issue. After reviewing the summary judgment evidence, the magistrate

judge found that the predominant purpose of Burns’s mansion was nonexpressive

because the design—with its two stories, basement garage, numerous bedrooms and

bathrooms, pool, oceanfront views, privacy wall, and heavy landscaping—

demonstrated that the “structure [was] to serve as a residence, not as a piece of visual

art.” And any message from the mansion would be ambiguous, according to the

magistrate judge, because of its residential features and because, even though the

mansion was a custom design, a reasonable viewer would not infer that the design

sent a message. Rather, a viewer might think that the owner liked the architecture,

wanted a different style from his neighbors, or believed the house would be more

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hurricane resistant. Because the design was nonexpressive, the magistrate judge

found that the First Amendment did not apply.

As to Burns’s vagueness claim, the magistrate judge applied “less exacting

scrutiny” because section 18-205(a) did not implicate any fundamental rights. The

magistrate judge explained that the commission’s criteria were not vague because

the ordinance listed specific design elements to compare a proposed structure to

others in the area and identified “architectural compatibility” and “harmony” with

nearby structures as guidelines for a design. As to Burns’s equal protection claim,

the magistrate judge said that Burns had failed to present evidence of similarly

situated building permit applications that Palm Beach treated differently than his, so

his class-of-one claim failed.

Burns objected to the magistrate judge’s report and recommendation, but only

as to his claims challenging the constitutionality of the architectural review

commission’s criteria for issuing a building permit in section 18-205(a). Burns

argued that the magistrate judge: erred in recommending summary judgment before

the close of discovery; analyzed his free speech claim using the wrong test; and erred

in recommending that his vagueness and equal protection claims should be denied.

Burns also filed two expert reports opining on the communicative aspects of

architecture.

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The district court overruled Burns’s objections and adopted the magistrate

judge’s report. The district court agreed that Burns had waived any objection to an

early summary judgment because he fully briefed a response to Palm Beach’s motion

and participated in oral argument. And even if he didn’t waive the objection, the

district court concluded that Burns did not meet rule 56(d)’s standard because he did

not specifically identify what facts he would discover to oppose the motion. Rather,

his declaration only identified “general categories of discovery that would be

sought.” The district court also explained that Burns gave no reason why he could

not obtain the discovery in the months between the filing of his declaration and the

hearing.

As to Burns’s First Amendment claim, the district court agreed that the three-

part predominant-purpose test applied and that the primary purpose of Burns’s new

mansion was to be his residence. Because Burns designed the residence to be

concealed from the public by a privacy wall and heavy landscaping, the district court

also concluded that a reasonable observer would not have a great likelihood of

understanding that the mansion communicated a message. As to Burns’s vagueness

claim, the district court agreed that section 18-205(a)’s criteria and reference to

design elements were understandable to an ordinary person and prevented arbitrary

and discriminatory enforcement. Finally, as to Burns’s equal protection claim, the

district court agreed with the magistrate judge that Burns had not presented evidence

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of comparator mansions, “identical in all relevant respects” to his design, that were

approved by the commission.

Burns appeals the summary judgment for Palm Beach.

STANDARDS OF REVIEW

“We review the district court’s denial of a [r]ule 56[(d)] motion under the

abuse of discretion standard.” Fla. Power & Light Co. v. Allis Chalmers Corp., 893

F.2d 1313, 1315 (11th Cir. 1990). 3 “We review the district court’s grant of summary

judgment de novo.” Fort Lauderdale Food Not Bombs v. City of Fort Lauderdale,

901 F.3d 1235, 1239 (11th Cir. 2018) (emphasis omitted). And we review questions

of constitutional law de novo. Id. Because “the reaches of the First Amendment are

ultimately defined by the facts it is held to embrace,” we must “decide for ourselves

whether a given course of conduct falls on the near or far side of the line of

constitutional protection.” Flanigan’s Enters., Inc. of Ga. v. Fulton Cnty., Ga., 596

F.3d 1265, 1275 (11th Cir. 2010) (internal quotation marks omitted). To do that in

First Amendment free speech cases, “the Supreme Court has instructed us to make

an independent examination of the whole record, and has recognized our ultimate

3

“When [r]ule 56 was rewritten in 2010, [the rule 56(f)] provisions were moved to a new

subdivision (d), without any substantial change. Thus, precedent prior to 2010 citing [r]ule 56(f)

is fully applicable to current [r]ule 56(d).” 10B Charles A. Wright & Arthur R. Miller, Federal

Practice and Procedure § 2740 (4th ed. 2020); see also City of Miami Gardens v. Wells Fargo &

Co., 931 F.3d 1274, 1287 (11th Cir. 2019) (applying old rule 56(f) precedent to a rule 56(d)

challenge).

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power . . . to conduct an independent review of constitutional claims when

necessary.” Id. (quotation omitted; omission in original).

While the dissenting opinion agrees that we have done as instructed by

independently examining the whole record before us in this appeal, it questions our

conclusion because “[t]raditionally, this power is used to protect rights from

government encroachment” and not, as it claims we have done, “to curtail the

freedom of expression.” Dissenting Op. at 73. Our narrow and fact-specific

conclusion does not curtail the freedom of expression. And the standard of review

in First Amendment free speech cases isn’t a one-way rachet. It is result-neutral.

We reject the dissenting opinion’s suggestion that an independent examination of

the whole record can only, and will always, reach the conclusion that the challenged

expression is protected and never that it’s not.

Our First Amendment free speech decisions do not support the dissenting

opinion’s view that under the independent “whole record” standard of review, we

“traditionally” find protected expression and a First Amendment violation. For

example, in ACLU of Florida, Inc. v. Miami-Dade County School Board, 557 F.3d

1177 (11th Cir. 2009), after independently examining the whole record to find the

facts, we rejected the plaintiffs’ First Amendment challenge to the school board’s

decision to remove a book from its libraries. We did so after finding for ourselves

the motivation of the board’s decision. Id. at 1207 (“Our review of the record leads

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us to the conclusion that under the Pico standard we are assuming applies, the Board

members did not remove books from school library shelves simply because they

dislike[d] the ideas contained in those books and [sought] by their removal to

prescribe what shall be orthodox in politics . . . or other matters of opinion.” (internal

quotation marks omitted; alterations and omissions in original)). In Flanigan’s, we

independently examined the whole record before rejecting the plaintiffs’ claim that

the county’s nude dancing ordinance violated their free speech rights. We rejected

it because we found that “it was reasonable for the [c]ounty to rely on the voluminous

evidence before it—including the many findings of the July 2001 report, the

numerous foreign studies appended to it, and the live testimony of the chief of police

and the chief judge of the juvenile court.” 596 F.3d at 1279–80. And in Don’s Porta

Signs, Inc. v. City of Clearwater, 829 F.2d 1051 (11th Cir. 1987), we independently

examined the whole record before rejecting the plaintiffs’ claim that the city’s sign

ordinance violated their free speech rights. We rejected it because we found that

“the record sufficiently supports the [c]ity’s judgment that the regulation of portable

signs will help to eliminate visual clutter and thereby further the [c]ity’s interest in

improving the visual character of the [c]ity.” Id. at 1053 (footnote omitted).

In all of those cases the plaintiffs claimed that their First Amendment free

speech rights were being violated by “government encroachment.” In all of those

cases we, as the reviewing court, made an independent examination of the whole

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record. And in all of these cases, based on our review of the whole record, we held

that the alleged “government encroachment” did not violate the First Amendment.

Here, we do no more and no less than what we have “[t]raditionally” done in Don’s

Porta, ACLU of Florida, and Flanigan’s.

The “irony today” is not, as the dissenting opinion says, that we have done as

the Supreme Court has instructed and conducted an independent examination of the

whole record relating to Burns’s constitutional claims. Dissenting Op. at 73. The

“irony today” is that it is the dissenting opinion that goes beyond the “whole record”

in this case, the record developed by the parties and put before the district court. The

dissenting opinion consults extra-record sources and draws from them the “facts”

that it determines support its conclusion. Throughout the dissenting opinion, it

laments the “incomplete record” and the “limited record” that’s before us. Id. at 74,

123 n.5. So, the dissenting opinion escapes the confines of the record to look for

evidence that the parties never put forward and the district court never considered.

It discusses:

• Walter Gropius’s home in Massachusetts, Frank Lloyd Wright’s

Fallingwater in Pennsylvania, John Yeon’s Watzek home in Oregon,

Philip Johnson’s Glass House in Connecticut, Charles and Ray Eames’

home in California, John Lautner’s Schaffer home in California, and Eero

Saarinen’s Miller home in Indiana, id. at 90–91;

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• Richard Wagner, id. at 85;

• The ruins of the Roman Forum, id.;

• Hitler’s relationship with Albert Speer and Napoleon III’s relationship

with Baron Georges-Eugène Haussmann, id. at 86;

• Thomas Jefferson’s views on architecture, id. at 86–87, 89;

• The U.S. Capitol, id. at 87;

• Versailles, the Winter Palace, and Schönbrunn Palace, id. at 88; and

• The history of the International Style, id. at 89–90. 4

The dissenting opinion doesn’t stop there. It also relies on trade journals, articles,

and websites that were not, and are not, part of the actual record in this case:

• Burford Pickens, Mr. Jefferson as Revolutionary Architect, 34 J. of the

Soc’y of Architectural Historians 257 (1975), id. at 87, 89;

• Monticello and the University of Virginia in Charlottesville: World

Heritage Site, National Park Service,

https://www.nps.gov/articles/000/monticello-and-the-university-of-

virginia-world-heritage-site.htm, id. at 89;

4

Much of the dissenting opinion’s extra-record facts have nothing to do with residential

architecture. Wagner designed a theater. Dissenting Op. at 85. Jefferson, in his letter to Madison,

was discussing “public buildings.” Id. at 86. And the U.S. Capitol is the seat of our federal

government. Id. at 87.

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• Jess R. Phelps, Preserving National Historic Landmarks?, 24 N.Y.U.

Envtl. L.J. 137 (2016), id. at 91 n.1;

• Susan L. Buck, A Material Evaluation of the Gropius House: Planning to

Preserve a Modern Masterpiece, 28 APT Bulletin: The J. of Preservation

Tech. (1997), id. at 120, 135; and

• Daisy Alioto, Elizabeth Gordon’s International Style, Curbed (May 10,

2017), https://archive.curbed.com/2017/5/10/15592658/elizabeth-

gordon-house-beautiful-frank-lloyd-wright, id. at 135.

None of these extra-record facts and sources the dissenting opinion relies on are part

of the actual record in this case. They were not part of the actual record before the

magistrate judge and the district court; they were not part of the discovery materials;

and they were not part of Burns’s expert reports. Not coincidentally, the dissenting

opinion’s extra-record facts and sources all seem to favor its legal position.

The dissenting opinion says not to worry because its extra-record materials

are “common knowledge.” Id. at 92. But we’re not talking about Washington

crossing the Delaware or the Beatles’ greatest hits. The history of residential

architecture in the United States and the midcentury modern style is anything but

common. Burns needed three architectural experts to explain why his beachfront

mansion met the commission’s criteria and was protected by the First Amendment,

and we only use experts where their “scientific, technical, or other specialized

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knowledge will help the trier of fact to understand the evidence or to determine a

fact in issue.” Fed. R. Evid. 702(a). If the deep dive into the founding of the

midcentury modern style was common knowledge, there would be no need for the

“scientific, technical, or other specialized knowledge” of three experts.

More importantly, what the dissenting opinion does is not what the Supreme

Court instructed us to do. It did not instruct us to look outside the actual record in

the case to whatever sources we could find to support the proposition that there had

been (because there must be) a First Amendment violation. Dissenting Op. at 72–

73. Instead, the Supreme Court instructed us to independently examine the actual

record in the case, not go outside it, to find the facts to decide the First Amendment

issue. We are to do that even if we think that the record developed by the attorneys

during discovery and reviewed by the district court is frustratingly “incomplete” and

“limited.” And that is what we, unlike the dissenting opinion, have done.

As a final way to shore up the “incomplete” record and get to the result it

wants to reach, the dissenting opinion says it may take judicial notice of the registry

of national historic landmarks. Id. at 91 n.1. But the limited power of an appellate

court to judicially notice historical facts on its own—that were not in the summary

judgment record and that the parties have not asked us to judicially notice—does not

extend to creating summary judgment evidence for our preferred litigant and then

using the newly created evidence to find facts in his favor. That’s not the way

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appellate review works. See Selman v. Cobb Cnty. Sch. Dist., 449 F.3d 1320, 1332

(11th Cir. 2006) (“In deciding issues on appeal we consider only evidence that was

part of the record before the district court.”); Callahan v. U.S. Dep’t of Health &

Human Servs., 939 F.3d 1251, 1266 (11th Cir. 2019) (“We are, after all, a court of

review, not a court of first view.”). And even if appellate review did work that way,

and we took judicial notice of the national historic landmark registry, the notice

would only include the regulatory criteria, the homes on the list, and the date they

became national historic landmarks. The historical details and the architectural

descriptions that the dissenting opinion relies on in its summary judgment analysis

are not on the registry and would not be judicially noticed.

DISCUSSION

Burns makes the same arguments on appeal that he made before the district

court. He contends that the district court abused its discretion by granting summary

judgment prematurely, erred in applying the predominant-purpose test to his First

Amendment free speech claim (which led it to reach the wrong result), and erred in

denying his vagueness and equal protection claims.

Rule 56(d)

Burns argues that he diligently pursued discovery, but that the district court

did not give him enough time before granting summary judgment. He contends that

he properly objected to the early summary judgment by filing his rule 56(d)

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declaration identifying his need for additional discovery and the categories of

discovery he still needed.

Under rule 56(d), a court may “defer” or “deny” a motion for summary

judgment, allow additional time for discovery, or issue an appropriate order “[i]f a

nonmovant shows by affidavit or declaration that, for specified reasons, it cannot

present facts essential to justify its opposition.” Fed. R. Civ. P. 56(d). “Failure to

satisfy [the rule 56(d)] burden is fatal to an argument that the district court granted

summary judgment prematurely by failing to order or await the results of further

discovery.” City of Miami Gardens, 931 F.3d at 1286. To invoke rule 56(d), “a

party ‘may not simply rely on vague assertions that additional discovery will produce

needed, but unspecified facts,’ but ‘must specifically demonstrate how

postponement of a ruling on the motion will enable him, by discovery or other

means, to rebut the movant’s showing of the absence of a genuine issue of fact.’”

Id. at 1287 (quoting Reflectone, Inc. v. Farrand Optical Co., 862 F.2d 841, 843 (11th

Cir. 1989)).

Burns’s rule 56(d) declaration failed to “specifically demonstrate” how

discovery would show a genuine issue of fact. See id. As the district court

explained, Burns only listed general categories of discovery without pointing to the

specific facts that discovery would reveal and how those facts would create a genuine

issue of material fact. He didn’t explain why he needed legislative history materials,

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expert testimony, and potential depositions. The closest Burns got was his request

for commission records, which, he said, would show the lack of discernable

standards used by the commission in making its decisions. But “vagueness is a

question of law for the judge, and not the jury, to determine,” Konikov v. Orange

Cnty., 410 F.3d 1317, 1330 (11th Cir. 2005), and Burns gave no indication how

commission records would aid his as-applied challenge. He had already filed the

transcripts of the commission’s meetings related to his application, and he conceded

that he did not need further discovery on his facial claims. “[T]he district court had

all the information necessary to rule on the legal issues, and [Burns] raised no

genuine question of material fact that would have precluded summary judgment.”

See Artistic Ent., Inc. v. City of Warner Robins, 331 F.3d 1196, 1202 (11th Cir.

2003).

The district court also did not abuse its discretion because Burns had ample

time after his rule 56(d) declaration to obtain the discovery he needed, and he did

not renew his request for further discovery. After Burns filed his declaration, the

district court gave him five months of discovery before the magistrate judge held a

hearing on the summary judgment motion. The district court, at the parties’ request,

continued the discovery deadline three times. Burns used the extra time to

supplement his response and file new exhibits. After the magistrate judge’s hearing,

Burns was invited to supplement his response again, which he did.

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Burns never renewed his rule 56(d) objection. Not after the district court

granted three extensions of the discovery deadline. Not after Burns supplemented

his summary judgment response. Not before the magistrate judge’s hearing. And

not after the hearing when he again supplemented his response. At the hearing, when

the magistrate judge brought up discovery, Burns mentioned he wanted an expert on

whether architecture was art and transcripts of the commission’s hearings. Burns

also said, in his post-hearing filings, that he sought more discovery and transcripts

of the commission’s hearings. But Burns conceded that there was no factual dispute

about whether architecture was art. And Burns never told the magistrate judge what

disputed facts the commission’s transcripts would show. Burns did not tell the

magistrate judge, as he was required to do under rule 56(d), how the transcripts

would “rebut the movant’s showing of the absence of a genuine issue of fact.” See

City of Miami Gardens, 931 F.3d at 1287 (citation and internal quotation marks

omitted).

Burns argues that “the [r]ule 56(d) analysis should be measured based upon

the amount of time for discovery prior to the summary judgment motion being filed,

not the amount of time that had transpired at the time the trial court took up the

motion.” But this is wrong for two reasons. First, the text of the rule directly

contradicts that argument, as it allows for additional “time . . . to take discovery” in

“opposition” to what must be an already-filed motion. Fed. R. Civ. P. 56(d)(2).

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Second, Florida Power & Light Co. (the case Burns cites) makes clear that the rule

56(d) time is measured from when summary judgment is entered, not, as he

contends, from when the summary judgment motion is filed. See 893 F.2d at 1316

(“Before entering summary judgment the district court must ensure that the parties

have an adequate opportunity for discovery.” (emphasis added)). The district court

here allowed ten months (with extensions of discovery deadlines in between) from

the filing of the motion until it adopted the magistrate judge’s report and

recommendation and granted summary judgment. It allowed Burns an adequate

opportunity for discovery.

First Amendment Claim

The parties raise three issues with Burns’s First Amendment claim: (1) Can

residential architecture ever be expressive conduct protected by the First

Amendment? (2) If so, what First Amendment test do we use to analyze whether a

home is expressive conduct? And (3) applying the proper test, is Burns’s new

mansion expressive conduct protected by the First Amendment? Burns contends

that custom-designed residential architecture communicates a form of expressive

conduct unique to the homeowner, like his lifestyle choices, political stances, and

individuality. Because the commission’s criteria in section 18-205(a) restricted his

expressive conduct, Burns argues that they had to meet the Supreme Court’s two-

part test in Texas v. Johnson, 491 U.S. 397 (1989). Applying the Johnson test, Burns

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contends that building his new mansion was expressive conduct entitled to First

Amendment protection.

Palm Beach, on the other hand, argues that residential architecture is not

expressive conduct because, whatever its artistic elements, those elements can’t be

separated from the home’s predominant and primary purpose as a place to sleep, eat,

and live. To the extent that it can be expressive conduct, Palm Beach asks us to

apply the district court’s three-part predominant purpose test adopted from

Mastrovincenzo. Under that test, Burns’s mansion was not expressive because its

predominant purpose, as shown by its location, design, and use, was to serve as a

residence.

Because we conclude that, even under the easier-to-meet Johnson test,

Burns’s new mansion was not expressive conduct protected by the First Amendment,

we do not decide, and save for another day, the harder issues of whether residential

architecture can ever be expressive conduct and, if so, what is the proper First

Amendment test. We assume that Johnson controls and apply it here to Burns’s new

mansion.

Despite saying that we are not deciding whether residential architecture can

be expressive conduct protected by the First Amendment, the dissenting opinion

accuses us of deciding the exact opposite: that residential architecture can never be

expressive conduct. Dissenting Op. at 74 (the majority “virtually ensures that no

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piece of residential architecture will ever garner First Amendment protection”); id.

at 116 (“Burns’s house does not present the same circumstances, nor is it likely that

any piece of residential architecture would ever do so.”). The dissenting opinion is

wrong about what we have—and haven’t—decided today.

To dispel any lingering confusion, we emphasize again that we are not

deciding whether residential architecture can ever be expressive conduct protected

by the First Amendment. We have not decided, as the dissenting opinion says, that

Philip Johnson’s Glass House isn’t expressive conduct but tattooing is; we have not

decided that Jefferson’s Monticello isn’t protected under the First Amendment but

nude dancing is; and we have not decided that the Empire State Building doesn’t

meet the Johnson test but elevator music does. Id. at 93. Not at all.

Burns’s First Amendment claim challenges the criteria the architectural

review commission used to deny the building permit for his new beachfront

mansion. As part of our independent examination of the actual record in this case,

we will dig deeply into Burns’s plans for his new mansion and his dealings with the

commission to see whether the new mansion meets the Johnson test for expressive

conduct (it doesn’t). Because our review is limited to the actual record in this case,

which is about Burns’s proposed mansion, this opinion says nothing about the

expressive conduct of national historical landmarks, the homes of our founding

fathers and mothers, and the world’s most iconic skyscrapers.

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* * *

“In determining whether the government has violated free speech rights, the

initial inquiry is whether the speech or conduct affected by the government action

comes within the ambit of the First Amendment.” One World One Fam. Now v.

City of Miami Beach, 175 F.3d 1282, 1285 (11th Cir. 1999). “Constitutional

protection for freedom of speech ‘does not end at the spoken or written word.’” Fort

Lauderdale, 901 F.3d at 1240 (quoting Johnson, 491 U.S. at 404). Rather, the First

Amendment offers safeguards for “expressive conduct, as well.” Holloman ex rel.

Holloman v. Harland, 370 F.3d 1252, 1270 (11th Cir. 2004) (internal quotation

marks omitted).

To determine “whether particular conduct possesses sufficient communicative

elements to bring the First Amendment into play,” the two-part Johnson test 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.” Johnson, 491 U.S. at 404 (quoting Spence v. Washington, 418 U.S.

405, 410–11 (1974)); see also Fort Lauderdale, 901 F.3d at 1240. “[A] ‘narrow,

succinctly articulable message is not a condition of constitutional protection’

because ‘if confined to expressions conveying a “particularized message” the First

Amendment would never reach the unquestionably shielded painting of Jackson

Pollock, music of Arnold Schöenberg, or Jabberwocky verse of Lewis Carroll.’”

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Fort Lauderdale, 901 F.3d at 1240 (cleaned up) (quoting Hurley v. Irish-Am. Gay,

Lesbian & Bisexual Grp., 515 U.S. 557, 569 (1995)). So, in applying the second

factor, “we ask whether the reasonable person would interpret [the conduct] as some

sort of message, not whether an observer would necessarily infer a specific

message.” Holloman, 370 F.3d at 1270.

Palm Beach conceded to the magistrate judge, and does not dispute on appeal,

that Burns had the intent to convey a message.5 But Burns cannot meet Johnson’s

second element. 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 second factor of the Johnson test indicates, the Supreme Court’s cases

(and ours) have focused on the perspective of those who “view[]” the expressive

conduct. See Johnson, 491 U.S. at 404. There has to be a viewer for there to be a

great likelihood that the expressive conduct will be understood by those who view

it. Expressive conduct has a “communicative” element, but only insofar as it, “in

5

While the dissenting opinion acknowledges our agreement “that, at least for purposes of

summary judgment, Burns intended to convey a message through the design of his home,”

Dissenting Op. at 99, it later says that “[p]erhaps” we “intend[ed] to suggest that Burns’s First

Amendment claim [was] disingenuous” because, when describing the facts, we “pair[ed]” his

“‘philosophy of simplicity in lifestyle’ with a recitation of the house’s features, including that it

will have a ‘basement garage, outdoor pool and spa, cabana, and exercise room,’” id. at 123 n.5.

We have no such intent. All we have done is recite the undisputed facts that the message Burns

sought to communicate with his new mansion—simplicity in lifestyle and living with an emphasis

on fewer personal possessions—included adding 15,000 square feet and a second story to his

mansion, a basement with a five-car garage, wine storage, a steam room, a spa, a cabana, and an

exercise room.

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context, would reasonably be understood by the viewer to be communicative.” Clark

v. Cmty. for Creative Non-Violence, 468 U.S. 288, 294 (1984). After all, expressive

conduct deserves First Amendment protection because it serves as an “effective way

of communicating ideas”—a “short cut from mind to mind.” See W. Va. State Bd.

of Educ. v. Barnette, 319 U.S. 624, 632 (1943). But to get from mind to mind, a

viewer must be able to see the idea being communicated. All of the Supreme Court’s

expressive conduct cases have dealt with conduct that was and could be seen by

viewers.

In the case that laid the foundation for the Johnson test, Spence, the Supreme

Court examined a First Amendment challenge to a college student’s conviction for

hanging an American flag upside down with a peace symbol taped over it. 418 U.S.

at 406. The student displayed his altered “three by five feet” flag from a window

“above the ground floor” of his private apartment, so it was “plainly visible to

passersby.” Id. In fact, the student got into trouble because police officers observed

the flag from outside the apartment. Id. The state conceded that the student engaged

in expressive conduct, id. at 409, and the Court thought such a concession “inevitable

on this record,” given the undisputed message the student sought to communicate

and the likelihood that “that the message would be understood by those who viewed

it,” id. at 409–11.

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In Johnson itself, the Supreme Court upheld another First Amendment

challenge to a flag desecration conviction. 491 U.S. at 399. There, the defendant,

after a demonstration against the ongoing Republican national convention, “unfurled

the American flag, doused it with kerosene, and set it on fire” in front of the Dallas

city hall. Id. As in Spence, the state conceded (the Court thought “prudent[ly]”)

that the defendant engaged in expressive conduct. Id. at 405–06. The Court

summarized that, given the political context, the communicative nature of conduct

relating to flags, and the demonstration, “[t]he expressive, overtly political nature of

this conduct was both intentional and overwhelmingly apparent.” Id. at 405.

The Court has also concluded that parades comfortably fit within expressive

conduct, noting the “inherent expressiveness of marching to make a point.” Hurley,

515 U.S. at 568. Parades consist of “marchers who are making some sort of

collective point, not just to each other but to bystanders along the way.” Id. They

require a public display of their message: “a parade’s dependence on watchers is so

extreme that nowadays, as with Bishop Berkeley’s celebrated tree, if a parade or

demonstration receives no media coverage, it may as well not have happened.” Id.

(internal quotation marks omitted). The Supreme Court had no trouble concluding

that the parade at issue was expressive conduct, given that “[s]pectators line[d] the

streets; people march[ed] in costumes and uniforms, carrying flags and banners with

all sorts of messages (e.g., ‘England get out of Ireland,’ ‘Say no to drugs’); marching

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bands and pipers play[ed]; floats [were] pulled along; and the whole show [was]

broadcast over Boston television.” Id. at 569.

The many other cases in which the Supreme Court and this Court have

identified protected expressive conduct all share a common element: the expressive

conduct in each of those cases was or could be viewed. The conduct was not like

the proverbial tree, which was out of view because it was deep in the forest. See

Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 576 U.S. 200, 203, 207

(2015) (issuing “specialty license plate designs” for “display on vehicles registered

in Texas”); Pleasant Grove City v. Summum, 555 U.S. 460, 476 (2009) (“By

accepting a privately donated monument and placing it on city property, a city

engages in expressive conduct . . . .”); Virginia v. Black, 538 U.S. 343, 348, 350

(2003) (burning a cross on the property of another or observable from a public road);

City of Erie v. Pap’s A.M., 529 U.S. 277, 289 (2000) (plurality opinion) (nude

dancing at an establishment open to the public); United States v. Grace, 461 U.S.

171, 176 (1983) (peaceful picketing and leafletting on the sidewalks surrounding the

Supreme Court); Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 504

(1969) (wearing a black armband to school); Barnette, 319 U.S. at 642 (refusing to

salute the flag and recite the pledge of allegiance in school); Stromberg v. California,

283 U.S. 359, 362 (1931) (display of a red flag at a summer camp); Fort Lauderdale,

901 F.3d at 1237–38 (outdoor food sharing open to the public at a city park); Buehrle

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v. City of Key West, 813 F.3d 973, 975 (11th Cir. 2015) (tattooing at a “tattoo

establishment in the City’s historic district”); Holloman, 370 F.3d at 1259, 1270

(silently raising fist during the pledge of allegiance at school).

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. While a person

driving or walking south may be able to see through the gaps in the louvred gate, the

viewer’s gaze would be met not by a midcentury modern design, but by heavy

landscaping. Private properties close off the north and south view of the new

mansion, further reducing the opportunity for an observer to see the design. Even

Burns’s neighbors could not see his house because he purposely blocked it from their

view with a fourteen-to-sixteen-foot-tall hedge and trees at least eighteen feet tall.

Burns is not burning a flag in front of city hall, parading through Boston, or even

displaying a sign from his viewable window. The landscaping he proposes obstructs

those elements that he says communicate a message. A viewer cannot infer a

message from something the viewer cannot view.

But, the dissenting opinion says, a reasonable viewer would be able see

Burns’s new mansion from the backside facing the beach. Dissenting Op. at 100–

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01. We know this, the dissenting opinion explains, because the record is “abundant

with examples of neighbors” and commission members “concerned with Burns’s

proposed design precisely because the home can be seen from the vantage point of

the beach.” Id. at 107.

The dissenting opinion misreads the comments from the commission

meetings. They are not largely about Burns’s design. Instead, the comments were

about the height and mass of Burns’s new mansion and how dissimilar it would be

to the neighboring homes. As part of its criteria, the commission was required to

determine whether the “[h]eight” and “[a]ppearance of mass” of the proposed

building was “excessively dissimilar in relation to any other structure existing . . .

within 200 feet of the proposed site.” Town of Palm Beach, Fla., Code § 18-

205(a)(6). The neighbors and commission members spoke to these factors. To them,

Burns’s new mansion looked like an elephant next to his neighbors’ poodles.

• “This long massing is, along one property line, is dissimilar to the adjacent

properties . . . It’s as much or more house than houses that have double the

lot size. . . . I want to make it abundantly clear that our objection is not on

the basis to the fact that it is international style architecture. That is not our

objections.”

• “The mass of the proposed home will overwhelm both North Ocean

Boulevard and the view from this popular beach . . . . [Burns] does not have

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the land to provide [this] kind of mass without eliminating the privacy of his

neighbors. Making the house a little less tall is no solution.”

• “[T]his house is far too massive for the size of the lot . . . . It’s just too—too

large.”

• “[W]e’re not picking on the style . . . it’s been reduced, [but] still it’s 165 feet

of building . . . . So you can see that the proposed property is still significantly

bigger than the adjacent properties . . . we’re still contending it’s too much

house.”

• “[T]he new house still towers at the same height and mass over our building

and the neighborhood.”

The neighbors and commission members were concerned about their view being

disrupted by a new mansion that was taller and larger than any of the surrounding

homes.

The dissenting opinion muses that it’s “hard to understand why Burns’s design

created so much controversy . . . if the house would not be visible to the public at

all.” Dissenting Op. at 110. But the dissenting opinion confuses visibility with the

design. The new mansion disrupted the view because its height and mass were so

dissimilar from the rest of the homes in the neighborhood. That disruption is what

caused the controversy. But no reasonable viewer could see the actual design

because it was blocked by landscaping and fences.

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This doesn’t matter, the dissenting opinion explains, because height and mass

are “hallmark features” of the midcentury modern style so the neighbors must be

seeing some of the design elements. Id. at 109. But large trash heaps also have

height and mass, and no one would say they are midcentury modern masterpieces.

If, as the neighbors explained, all they could see of the back of the new mansion was

height and mass, then there was no great likelihood that a reasonable viewer could

distinguish a Frank Lloyd Wright masterpiece from a pile of garbage.

Some neighbors and commission members commented on the design of the

new mansion, but those who did were talking about the model Burns presented at

the commission’s meetings. As the dissenting opinion explains, the commission’s

“evaluation . . . looked at the house design without taking landscaping into account.”

Id. at 111. But we must take the landscaping into account as part of our review of

the actual record in this case.

The dissenting opinion next points to Burns’s experts. Their testimony, the

dissenting opinion explains, showed “that the majority of the landscaping work

would be focused on the north, west, and south sides of the home,” but the east side

of the new mansion would remain “undisturbed.” Id. at 105. But Burns’s expert

testified that Burns’s main landscaping goal was screening the property “more than

adequate.” Another architectural expert told the commission that there was

“substantial vegetation”—a combination of “topography, grass, and vegetation”—

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creating, “from the ocean looking west,” a “visual barrier” between the new mansion

and the beach. And, George Ranalli—the same expert the dissenting opinion quotes

ten times—swore in his summary judgment affidavit that “Burns has proposed a

house in the context of landscape design to protect the neighbors from unwelcome

and unavoidable intrusions. The house . . . is surrounded on all four side[s] by a

dense perimeter of trees, shrubbery, and other plantings.” All four sides.

The dissenting opinion also contends that Burns shielded his new mansion

with landscaping “in order to satisfy [the commission] and Burns’s neighbors,” and

“it would make no sense to offer less First Amendment protection to speech when

the person making it takes steps to minimize any offense caused.” Id. at 111 n.3.

But the original plan Burns submitted to the town, before he made any changes,

called for “heavy landscaping.” That original plan would have placed a sixteen-to-

eighteen-foot-tall hedge and numerous trees between the mansion and the road. It

also would have added more landscaping to serve as a buffer between Burns’s

mansion and his neighbors’ homes to the north and south. And Burns’s landscape

architect told the town council exactly why there was heavy landscaping. He

testified that Burns directed him that his “most important design criteri[on]” was

screening the property properly and “more than adequate.” From day one, Burns

wanted to conceal from his neighbors what he now says is his message.

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The dissenting opinion finally points to five pictures of the mansion to show

that its backside would be visible from the beach. Id. at 101–05. But the five

pictures are more than a little misleading about what a viewer standing on the beach

facing west would actually see. The first picture is an aerial photo of Burns’s

“current house,” not his new one. Id. at 101. It tells us nothing about what the new

mansion with its heavy landscaping would look like. And this photo is from so high

up that the Goodyear Blimp could have taken it. It would be impossible to make out

the dunes, grass, trees, and the substantial vegetation from 1,000 feet in the air.

The second picture is the architect’s two-dimensional schematic of the new

mansion. This top-down drawing of the inside doesn’t show all of the outside visual

barriers surrounding the new mansion.

The third picture is a computer-generated mockup of the new mansion with

an unobstructed view of its backside. The third picture shows only a sliver of land

between the water and the backdoors, creating the illusion that Burns could jump

from his living room right into the Atlantic Ocean. But, of course, he can’t. Behind

the new mansion is a backyard, dunes, sea grass, trees, vegetation, and a large beach.

The dissenting opinion’s other pictures contradict the third picture. The first,

second, fourth, and fifth pictures show the large beach and backyard; the dissenting

opinion’s third picture inexplicably—and misleadingly—doesn’t. The dissenting

opinion’s third picture is like a picture of a castle without the moat and gate. It’s a

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nice closeup of the building but it’s not what a reasonable viewer would actually see

if she were looking at the castle.

The fourth and fifth pictures are hobby-store models of Burns’s new mansion.

The dissenting opinion claims that they show the “lack of landscaping on the east

side” of the new mansion, in contrast to the “dense foliage screen” on the other three

sides. Id. at 104–05. But these models—because they are models of the new

mansion and not the landscaping—purposely left out the screening on the backside.

When presenting the models to the architectural review commission, Burns’s

landscape architect told the commission that “on the rear” of the new mansion there

would be “more screening . . . than what the model shows”—“[a] lot more.” Burns’s

architect explained that the company which made the models didn’t even “have sea

grape,” one of the plants that was a part of the visual barrier surrounding the new

mansion and which Burns planned to add more of from both the north and south

property lines “towards the house” and “into [his] property.”

None of the dissenting opinion’s five pictures show what a viewer would

actually see if she were standing on the beach facing the back of Burns’s new

mansion. None of them. They don’t show what a viewer would see because they’re

purposely incomplete. For what a viewer would actually see, the summary judgment

evidence is clear. There would be “substantial vegetation” creating a “visual barrier”

between the new mansion and the beach. The new mansion, Burns’s summary

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judgment expert swore, would be “surrounded on all four side[s] by a dense

perimeter of trees, shrubbery, and other plantings.” We take Burns’s expert at his

word; the dissenting opinion doesn’t and instead relies on old or misleading pictures

and incomplete plastic models to get around the testimony of Burns’s own expert.

The dissenting opinion ends this part wondering “why Burns would create a

home with floor-to-ceiling windows only to block the view of the ocean.” Id. at 110.

But we don’t have to wonder; the answer is in the actual record. Burns’s landscape

architect told the town council that “the most important design criteria for this project

for me, and a directive from my client [Burns], was to screen this house properly and

more than adequate.”

Shifting gears, the dissenting opinion says that, “even if it were true that

Burns’s house was not visible at all to those driving and walking by[,] . . . his home

would still warrant First Amendment protection” because a guest may be a

reasonable viewer. Id. at 111-12. The dissenting opinion relies on the new

mansion’s four or five bedrooms and a letter to neighbors about an expanded

driveway. Id. at 112-13. But the letter said nothing about Burns inviting guests to

his new mansion—Burns (through his attorney) told the commission that the

driveway would create parking for “staff” so they wouldn’t have to park on the

street—and he presented no evidence that he intended to invite guests. The

dissenting opinion finds it “hard to imagine that Burns intended to rebuild his home

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and never invite a single soul to see it,” id. at 112, but the dissenting opinion’s

imagination is not evidence and does not create a genuine issue of material fact for

summary judgment purposes. See Cordoba v. Dillard’s, Inc., 419 F.3d 1169, 1181

(11th Cir. 2005) (“Speculation does not create a genuine issue of fact; instead, it

creates a false issue, the demolition of which is a primary goal of summary

judgment.” (quotation omitted)). Besides, we don’t have to imagine why Burns

wanted to build a new mansion. He told us why: “I wished to renovate my existing

house to better reflect my current tastes and long-term needs. It was my intention

that the design of the new house to be a means of communication and expression of

the person inside: Me.” Burns told us his purpose in building his new mansion and

it was not to invite guests.

After going on-and-on for ten pages about whether a reasonable viewer can

see Burns’s home, Dissenting Op. at 100–10, the dissenting opinion tells us that it

doesn’t even matter if a passerby or Burns’s neighbors can’t see his house because

“the courts have given extensive protection, in many ways and in many different

contexts, to the home,” id. at 112 n.4, citing City of Ladue v. Gilleo, 512 U.S. 43

(1994) and Stanley v. Georgia, 394 U.S. 557 (1969).6 But Gilleo and Stanley are

6

The dissenting opinion also cites Lawrence v. Texas, 539 U.S. 558 (2003); Kyllo v.

United States, 533 U.S. 27 (2001); Payton v. New York, 445 U.S. 573 (1980); and Griswold v.

Connecticut, 381 U.S. 479 (1965). Dissenting Op. at 112 n.4. But none of these are First

Amendment cases. Lawrence and Griswold were substantive due process cases, while Kyllo and

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not expressive conduct cases. They are First Amendment free speech cases that

involved reading, writing, and watching films. The plaintiff in Gilleo put up a sign

in her yard in 1990, and later in the upstairs window of her home, protesting the

Persian Gulf War. 512 U.S. at 45–46. As the Supreme Court explained, “signs are

a form of expression protected by the Free Speech Clause.” Id. at 48. And the Gilleo

plaintiff’s sign was intended for viewers to see. As the Court explained, “a person

who puts up a sign at her residence often intends to reach neighbors, an audience

that could not be reached nearly as well by other means.” Id. at 57.

The defendant in Stanley was arrested for possessing obscene films in his

home. 394 U.S. at 558. The Supreme Court reversed his conviction, holding that

the First Amendment prohibited the state from prosecuting the defendant for the

private possession of obscene films. Id. at 558–59. “If the First Amendment means

anything, it means that a State has no business telling a man, sitting alone in his own

house, what books he may read or what films he may watch.” Id. at 565.

Payton were Fourth Amendment cases. None have anything to do with expressive conduct.

Lawrence was about the constitutionality of Texas’s sodomy ban. 539 U.S. at 562 (“The question

before the Court is the validity of a Texas statute making it a crime for two persons of the same

sex to engage in certain intimate sexual conduct.”). Kyllo was about whether law enforcement’s

use of thermal-imaging technology amounted to a warrantless search. 533 U.S. at 29 (“This case

presents the question whether the use of a thermal-imaging device aimed at a private home from a

public street to detect relative amounts of heat within the home constitutes a ‘search’ within the

meaning of the Fourth Amendment.”). Payton was about the constitutionality of a warrantless

seizure. 445 U.S. at 574 (“These appeals challenge the constitutionality of New York statutes that

authorize police officers to enter a private residence without a warrant and with force, if necessary,

to make a routine felony arrest.”). And Griswold was about the constitutionality of Connecticut’s

birth control ban. 381 U.S. at 480 (holding unconstitutional state law that criminalized the use of

“any drug, medicinal article or instrument for the purpose of preventing conception”).

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Neither Gilleo nor Stanley involved expressive conduct, much less expressive

conduct and architecture. In neither case did the Supreme Court have to grapple, as

we do here, with First Amendment issues involving expressive conduct. Political

signs are pure speech. Gilleo, 512 U.S. at 48; Baldwin v. Redwood City, 540 F.2d

1360, 1366 (9th Cir. 1976) (“Communication by signs and posters is virtually pure

speech.”). So are books and films. See Kaplan v. California, 413 U.S. 115, 119–20

(1973) (explaining that “films” and “the printed word” have First Amendment

protection); Metzger v. Peracy, 393 F.2d 202, 203 (7th Cir. 1968) (“[M]otion

pictures, like books, are protected by the constitutional guarantees of freedom of

speech and press.”). As the dissenting opinion acknowledges, “when analyzing the

scope of the First Amendment protection beyond ‘pure speech,’ courts should apply

the expressive conduct test.” Dissenting Op. at 95. And expressive conduct depends

on an observer’s ability to see it. Unless it is seen, there is no likelihood that a viewer

would infer a message from it. See Johnson, 491 U.S. at 404. That is true whether

the expressive conduct occurs inside or outside the home. Just as the fall of Bishop

Berkeley’s tree in the forest makes no sound unless someone is there to hear it,

expressive conduct conveys no message unless someone sees it. Burns’s

architectural design does not speak so long as his trees prevent viewers from seeing

it. See Hurley, 515 U.S. at 568.

* * *

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But even if potential viewers could see through the trees, shrubbery, and other

landscaping (put there at Burns’s direction to block the view) and could catch a

glimpse of some part of the backside of the proposed new mansion, there still would

be no great likelihood they would understand that it conveyed some sort of message.

See Fort Lauderdale, 901 F.3d at 1240. In expressive conduct cases, “context

matters.” Id. at 1237. Context separates “the physical activity of walking from the

expressive conduct associated with a picket line or a parade”; the act of sitting down

to read at a library from sit-ins protesting segregation; and nude dancing from private

dressing. Id. at 1241. The “circumstances surrounding an event” help a reasonable

observer discern the dividing line between expressive conduct and everyday

conduct. See id.

In Fort Lauderdale, we examined five contextual factors to determine whether

there was a great likelihood some sort of message would be understood by those who

viewed a group sharing a meal with the homeless in a city park. See 901 F.3d at

1242–43. First, the group set up tables and its banner and distributed literature at its

events, which distinguished its activity from simply sharing a meal with friends. Id.

at 1242. Second, the meal was open to everyone and the group invited all present to

share in the meal at the same time. Id. Third, the organization conducted its

activities at a city park, a traditional public forum and a “place[] ‘historically

associated with the exercise of First Amendment rights.’” Id. (quoting Carey v.

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Brown, 447 U.S. 455, 460 (1980)). Fourth, “the City’s homeless population [was]

an issue of concern in the community” that would increase “the likelihood that the

reasonable observer would understand that [the organization’s] food sharing sought

to convey some message.” Id. at 1242–43. The city had held a “public workshop”

on “homeless issues, including public feedings” in city parks and the status of the

city’s homeless population had attracted local news coverage for years before that

workshop. Id. at 1242. Fifth, the history of “sharing meals with others” that

stretched back “millennia” indicated an observer would interpret some message. Id.

at 1243.

Here, the Fort Lauderdale factors show 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. First, Burns has no plans to set up tables, distribute literature, or hang up

a banner in front of his new mansion. He is not giving tours or handing out

informational brochures on its design elements.

Second, Burns has offered no evidence that his house will be open to everyone

or that he has invited the public to view his architectural design. In fact, he has

carefully shielded it from public view with a limestone wall, louvered gate, heavy

landscaping, and substantial vegetation.

Third, unlike a public park, a private residence is not a traditional public

forum, nor has it been historically associated with the exercise of First Amendment

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rights. Certainly, First Amendment protections do not end at the home. See, e.g.,

Spence, 418 U.S. at 406. But a private home, unlike a public park, has not

traditionally “been used for purposes of assembly, communicating thoughts between

citizens, and discussing public questions.” Fort Lauderdale, 901 F.3d at 1242.

Unlike a group activity in a public park, the context of Burns’s new mansion—a

private oceanfront residence surrounded by lush greenery along a quiet residential

street—does not transmit a message to the viewer.

Fourth, there is no evidence that residential midcentury modern architecture

was a public concern of the town that was workshopped by the town council or

reported by the local news in the years before Burns’s building permit application.

See id. There was no local discussion or public concern about Burns’s design that

would provide background to help a reasonable observer understand that Burns

sought to convey some message. In fact, the midcentury modern style was so

uncontroversial that it was listed in the architectural review commission’s guidelines

as one of Palm Beach’s ten predominate styles. Burns was not burning a flag after

a demonstration amid the ongoing Republican national convention, see Johnson, 491

U.S. at 406, hanging an American flag upside down with a peace symbol taped over

it after the shootings at Kent State, see Spence, 418 U.S. at 410, or wearing a black

armband to school during the Vietnam War, see Tinker, 393 U.S. at 505. See also

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Fort Lauderdale, 901 F.3d at 1243. He was merely building another house on a

residential street.

Fifth, there is no evidence that residential architecture has been used over the

millennia to convey a message. Burns submitted expert reports discussing

residential architecture as an expressive means for the homeowner. One expert said

that a custom design enhanced the expressive nature of a house because the architect

and client can work together to express the client’s “personal aesthetic.” And

another expert chronicled the development of architecture as an art form starting

with Plato, continuing with the ancient Romans and the Renaissance, and enduring

today. But there was no evidence that residential architecture, specifically, has a

historical association with communicative elements that would put a reasonable

observer on notice of a message from Burns’s house.

The fifth Fort Lauderdale factor asks whether the conduct at issue has been

understood to convey a message over the millennia. 901 F.3d at 1243. While

Burns’s experts noted that architectural principles have been used to build homes

since Roman times, they said nothing about the message residential architecture has

conveyed going “back many hundreds of years.” As the dissenting opinion

concedes, Burns’s experts take a “mile-high view” of the history of residential

architecture, Dissenting Op. at 121, but—other than some academic-sounding

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generalities—they don’t explain what residential architecture has communicated

over the millennia.

The historical context in Fort Lauderdale showed that sharing meals was not

merely a mode of dining, but also a form of expression. See 901 F.3d at 1243. Two

millennia ago, Jesus ate with sinners and tax collectors to “demonstrate that they

were not outcasts in his eyes.” Id. In 1621, Native Americans and the pilgrims

shared the first thanksgiving to celebrate the harvest. Id. Over two hundred years

later, President Lincoln established thanksgiving as a national holiday to express

gratitude for the country’s blessings of “fruitful fields and healthful skies.” Id. And

Americans continue to celebrate the holiday with traditional foods and family and

friends. Id. Both the long history of significant meal sharing and what those meals

conveyed—messages of inclusion and gratitude—put an observer on notice of a

message from a shared meal. Burns has offered no similar evidence. He has not

established that residential architecture has a history stretching back millennia which

shows an association between home design and communication.

The weight of the factors in Fort Lauderdale revealed that the plaintiff

organization’s “food sharing events [were] more than a picnic in the park.” Id. at

1243. We cannot say the same about Burns’s mansion. To the reasonable observer,

it is nothing more than another big beachfront home.

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The dissenting opinion concedes, as it must, that Burns’s proposed mansion

doesn’t “present the same circumstances” that made meal sharing protected

expressive conduct in Fort Lauderdale. Dissenting Op. at 116. But it complains that

it’s unlikely “that any piece of residential architecture would ever do so” under the

Fort Lauderdale factors. Id. Wrong. Take one of the dissenting opinion’s own

examples, Monticello. (1) Monticello has its own website, brochures, and books that

are published by the National Park Service and available to the public.

(2) Monticello is open for tours. (3) Monticello is a national historic landmark. (4)

And its builder, Jefferson, was the author of the Declaration of Independence, our

first secretary of state, our second vice president, our third president, the leader of

his political party for decades, and an inventor. Hundreds of years later, Jefferson,

his ideas, and his ideals are still a part of our public debate.

The dissenting opinion criticizes us for looking at Monticello’s historical

context as part of the expressive conduct test, id. at 117-18, but all we’ve done is

apply the same factors the Supreme Court does in its expressive conduct cases. In

Johnson, for example, the Supreme Court considered the two-hundred-year history

of the American flag as a national symbol to conclude that burning the flag was

expressive conduct. See Johnson, 491 U.S. at 404–05 (“That we have had little

difficulty identifying an expressive element in conduct relating to flags should not

be surprising. The very purpose of a national flag is to serve as a symbol of our

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country; it is, one might say, the one visible manifestation of two hundred years of

nationhood.” (quotation omitted)).

While there is no evidence in our record that residential architecture has

communicated a message dating back millennia, we’ve never said that every

contextual factor has to weigh in favor of the conduct being expressive. The Fort

Lauderdale factors are contextual guidelines that we weigh together to decide

whether or not certain conduct is protected expression. But Burns’s proposed new

mansion does not require us to weigh any competing contextual clues because none

of the factors favor finding a great likelihood that a reasonable observer would

receive some sort of message from a hidden beachfront mansion.

The dissenting opinion says that the Fort Lauderdale factors “were relevant to

determining whether . . . food sharing in a public park was expressive” but aren’t

relevant in “all future cases” like hanging an American flag upside-down (Spence)

or nude dancing (Schad). Dissenting Op. at 116–17. “[T]he circumstances that

made the meals in Fort Lauderdale expressive,” as the dissenting opinion

understands it, “were not the same as those that made the flag burning expressive in

Johnson.” Id. at 118. That is also wrong. The Fort Lauderdale court didn’t make

up the expressive conduct factors. It got them from Supreme Court expressive

conduct cases having nothing to do with sharing meals. The first Fort Lauderdale

factor—setting up tables and banners and distributing literature—came from the

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Supreme Court’s decision in Hurley, the parade case. 901 F.3d at 1242 (citing

Hurley, 515 U.S. at 570). The third factor—the location of the expressive conduct—

came from the Supreme Court’s decisions in Spence and Johnson, the flag cases (the

very cases that the dissenting opinion says are not contextually relevant to the Fort

Lauderdale factors). Id. (citing Spence, 418 U.S. at 409–10 and Johnson, 491 U.S.

at 406). The fourth factor—whether the conduct involves an issue of concern to the

community—also came from Spence and Johnson as well as Tinker, the black

armband in school case. Id. at 1242–43 (citing Johnson, 491 U.S. at 406, Spence,

418 U.S. at 410, and Tinker, 393 U.S. at 505). And the fifth Fort Lauderdale factor—

the history of the conduct—also came from Johnson. Id. at 1243 (citing Johnson,

491 U.S. at 405–06). While the dissenting opinion says that the factors “are ripped

from a markedly different context,” Dissenting Op. at 117, we and the Supreme

Court have used the Fort Lauderdale factors in cases as different as flag burning,

armband wearing, parading, and meal sharing. There’s no reason—other than they

don’t support the dissenting opinion’s position—why the same factors cannot be

used to evaluate the expressiveness of residential architecture.

We do not hold and have not said, as the dissenting opinion implies we have,

that the Fort Lauderdale factors are “exclusive.” Id. at 116. There may be other

factors that are relevant to whether Burns’s new mansion is expressive conduct

protected by the First Amendment. But it’s incorrect to say, as the dissenting opinion

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does, that the Fort Lauderdale factors are not the same as the factors the Supreme

Court considered in flag-burning cases and in other non-sharing-meal cases. They

are.

After all the pages of discussion spent arguing that the Fort Lauderdale factors

don’t apply to any cases but those involving meal-sharing, the dissenting opinion

puts forward only two other factors to fill the void. One factor is whether a

reasonable viewer would interpret the choice of architectural style as “a message

about the philosophy of the house’s owner,” and the other factor is whether Burns’s

design is different from his neighbors. Id. at 118, 122. There are three problems

with the dissent’s reliance on these two additional factors.

First, the dissenting opinion concedes that the parties’ “incomplete record . . .

comes to us without a resolution by the district court of questions basic to the

disposition of this case,” including “whether there is a likelihood that some sort of

message would be communicated to those who view Burns’s new home.” Id. at 74.

That is fatal to his First Amendment expressive conduct claim, which requires a great

likelihood that the particular conduct convey some message to those who view it.

Johnson, 491 U.S. at 404.

The second problem with the dissenting opinion’s reliance on its two new

factors is that the dissenting opinion fills the gap in the record with journals and

articles to support the proposition that a reasonable viewer would understand the

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midcentury modern design as conveying some sort of message. But none of these

journals and articles are evidence; none of them are in the actual record before us.

The dissenting opinion’s extended discussion about the midcentury modern style

going back to the 1930s relies on sources that were not turned over during discovery,

were not put before the district court for its consideration on summary judgment,

and are not part of the actual record in this case. Our independent examination of

the whole record of a case in First Amendment free speech cases gives us room to

review the “whole record,” Don’s Porta, 829 F.2d at 1053 n.9, but only the actual

record compiled in the district court. Our adversarial judicial system requires that

the parties develop the record, not that appellate courts do so. See Turner v.

Burnside, 541 F.3d 1077, 1086 (11th Cir. 2008) (“We do not consider facts outside

the record.”).

The third problem with the dissenting opinion’s reasoning based on its two

factors is that it does not fit the actual record in this case. Even assuming a neighbor

walking on the beach behind Burns’s new mansion could see some sliver of the rear

of the house, virtually all of the midcentury modern design elements would be

blocked by trees and hedges and gates and vegetation and other visual barriers. As

we explained, Burns instructed his landscape architect to shield his proposed new

mansion from his neighbors so the architectural design elements couldn’t be seen.

It’s like hanging a Jackson Pollock painting backwards and with all but the top part

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of it hidden. To the extent there is any evidence in the actual record that any

“elements” of midcentury modern design in the proposed house would be

“discernable to a reasonable viewer,” Dissenting Op. at 120, the viewer wouldn’t be

able to see enough of those elements for there to be a great likelihood of her getting

some sort of message about the architectural style to know that Burns’s new mansion

was different from the other homes in the area.

* * *

Because the dissenting opinion finds that Burns’s new mansion is expressive

conduct protected under the First Amendment, it addresses the level of scrutiny that

should be applied to the architectural review commission’s criteria and whether the

criteria survives that level of scrutiny. It concludes that the criteria are content-based

and subject to strict scrutiny, and that the justification for the criteria—aesthetics—

does not survive strict scrutiny.

If we were to respond in full to this part of the dissenting opinion, we would

build off of the following foundation:

• The inconsistency between two of the dissenting opinion’s positions. On the

one hand, it states that because the “district court applied the wrong legal

standard to Burns’s First Amendment claim,” it would “vacate and remand,

directing the district court in the first instance to find facts and measure them

against the appropriate standard of law.” On the other hand, the dissenting

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opinion goes on to decide all of the legal issues it had earlier described as

“com[ing] to us without a resolution by the district court” because of the

“incomplete record.” Dissenting Op. at 74, 98.

• The section 18-205(a) criteria are not content-based because they do not

distinguish favored from unfavored speech. Section 18-205(a) requires the

commission to consider whether the proposed building is excessively

dissimilar to any other structure within 200 feet in respect to “significant

design features” and “[a]rchitectural compatibility.” Town of Palm Beach,

Fla., Code § 18-205(a). On its face, section 18-205(a) applies to all designs.

It asks only whether the design features of the proposed building are

excessively dissimilar from the surrounding homes. If a grocery store rule

requires that dissimilar-looking produce not be put next to each other on the

same grocery shelf, a stock clerk doesn’t have to know whether a fruit is a

mango or a papaya to know that it doesn’t look like a pineapple. And the

similar-produce rule is not personal to any of the three fruits; it is not content-

based in the usual sense.

• Section 18-205(a) was not intended to discriminate against midcentury

modern designs. In the last forty years, the commission received fifteen

applications for building permits based on a midcentury modern design. Of

those fifteen, the commission rejected only one. Just one. That’s a

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93.3 percent success rate for midcentury modern designs. Some

discrimination. And the commission’s own guidelines describe the

midcentury modern style as one of the ten predominant styles in Palm Beach.

We could go on about this part of the dissenting opinion addressing the level

of scrutiny that should be applied to the architectural review commission’s criteria

and whether the criteria survive that level of scrutiny, but there is no need. Because

we’ve concluded that, even under the Johnson test, Burns’s proposed new mansion

is not expressive conduct protected under the First Amendment free speech clause,

we don’t need to decide: whether the commission’s criteria are content-based or

content-neutral; the level of scrutiny to be applied; and whether the town has given

a sufficient justification for its ordinance. Generally, we don’t answer constitutional

questions that don’t need to be answered. See Lyng v. Nw. Indian Cemetery

Protective Ass’n, 485 U.S. 439, 445 (1988) (“A fundamental and longstanding

principle of judicial restraint requires that courts avoid reaching constitutional

questions in advance of the necessity of deciding them.”).

In the end, the dissenting opinion waxes poetically and passionately about

architecture, art, and the First Amendment and criticizes us for shying away from

the Constitution’s commitment to free expression. Dissenting Op. at 136. But this

Court has never shied away from protecting expressive conduct. We have found

outdoor meal-sharing in a public park (Fort Lauderdale), tattooing (Buehrle), and

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silently raising a fist during the pledge of allegiance at school (Holloman) to be

expressive conduct protected by the First Amendment.

One day, we may even find some residential architecture to be expressive

conduct. But Burns’s proposed new mansion is not Monticello or Versailles, no

matter how much the dissenting opinion wants to compare it to those historic homes.

It’s just a really big beachfront house that can’t be seen, located on a quiet residential

street in Palm Beach, Florida.

Fourteenth Amendment Vagueness Claim

Burns next contends that section 18-205(a), the architectural review

commission’s criteria for reviewing building permits, is void for vagueness. He

argues that section 18-205(a) fails to inform ordinary people what it prohibits and

allows the commission unbridled discretion to deny applications and target modern

architecture.

The Fourteenth Amendment prohibits “any state” from “depriv[ing] any

person of life, liberty, or property, without due process of law.” U.S. Const. amend.

XIV, § 1. “It is, by now, a ‘basic principle of due process that an enactment is void

for vagueness if its prohibitions are not clearly defined.’” Wollschlaeger v.

Governor, State of Fla., 848 F.3d 1293, 1319 (11th Cir. 2017) (en banc) (quoting

Grayned v. City of Rockford, 408 U.S. 104, 108 (1972)). A vague law can violate

the due process clause if it (1) “fails to provide people of ordinary intelligence a

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reasonable opportunity to understand what conduct it prohibits” or (2) “authorizes

or even encourages arbitrary and discriminatory enforcement.” Id. (quoting Hill v.

Colorado, 530 U.S. 703, 732 (2000)). “[A] civil statute is unconstitutionally vague

only if it is so indefinite as ‘really to be no rule or standard at all.’” Leib v.

Hillsborough Cnty. Pub. Transp. Comm’n, 558 F.3d 1301, 1310 (11th Cir. 2009)

(quoting Seniors C.L. Ass’n v. Kemp, 965 F.2d 1030, 1036 (11th Cir. 1992)).

The void-for-vagueness doctrine addresses “at least two connected but

discrete due process concerns: first, that regulated parties should know what is

required of them so they may act accordingly; second, precision and guidance are

necessary so that those enforcing the law do not act in an arbitrary or discriminatory

way.” F.C.C. v. Fox Television Stations, Inc., 567 U.S. 239, 253 (2012). Standard

economic regulations, including zoning ordinances, need only pass “a less strict

vagueness test.” See Vill. of Hoffman Ests. v. Flipside, Hoffman Ests., Inc., 455

U.S. 489, 498 (1982); see also CMR D.N. Corp. v. City of Philadelphia, 703 F.3d

612, 631 (3d Cir. 2013) (applying the “less strict vagueness test” to a zoning

ordinance). In First Amendment free speech cases, however, “rigorous adherence

to those requirements is necessary to ensure that ambiguity does not chill protected

speech.” Fox Television Stations, 567 U.S. at 253–54. Because Burns’s proposed

new mansion does not raise First Amendment concerns, we apply the “less strict

vagueness test.” See Hoffman Ests., 455 U.S. at 496–98 (rejecting a free speech

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challenge and proceeding with the void-for-vagueness analysis); see also Leib, 558

F.3d at 1311 (holding that a civil statute regarding permitting met the less strict

vagueness standard); Reserve, Ltd. v. Town of Longboat Key, 17 F.3d 1374, 1378–

79 (11th Cir. 1994) (holding that an ordinance that allowed a town to revoke a

building permit upon a determination that “substantial work” had not been

accomplished in a thirty-day period was not unconstitutionally vague).

Like the district court, we conclude that section 18-205(a) is not

unconstitutionally vague. In a similar case, Maher v. City of New Orleans, 516 F.2d

1051, 1054 (5th Cir. 1975), the former Fifth Circuit held that a New Orleans

ordinance requiring an architectural commission to preserve the “architectural and

historical value” of that city’s French Quarter did not run afoul of the due process

clause. There, the plaintiff wanted to demolish his Victorian cottage and build

apartments in its place. Id. He sought approval from the city’s architectural

commission, as required for any demolition or construction project. Id. As with

Burns’s new mansion, “[a]lmost from the time of the original application, interested

individual neighborhood owners . . . vigorously opposed the [plaintiff’s] plan to tear

down the cottage and to develop the property.” Id. The plaintiff “undertook a

succession of attempts to secure approval of his plans from the [c]ommission,”

which it eventually granted before the city council reversed it. Id. The plaintiff sued

the city, arguing that the architectural commission ordinance violated due process

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because “it provide[d] inadequate guidance to the [c]ommission for the exercise of

its administrative judgment.” Id. at 1061.

We rejected the vagueness challenge for several reasons. First, the state

constitution, the architectural commission ordinance, and the state supreme court

had fleshed out what the ordinance meant by “architectural and historical value”—

that it, for example, sought protection of the “quaint and distinctive character of the

area.” Id. at 1060–63 & n.58. Second, the ordinance applied only to a specific

geographic district, was limited to the appearance of the portions of buildings that

faced public streets, and “regulat[ed] items of special interest, such as floodlights,

overhanging balconies or signs.” Id. at 1062. Third, the ordinance required the

architectural commission to consist of “architects, historians and business persons

offering complementary skills, experience and interests.” Id. And fourth, the city

council had the power to review the commission’s decisions, preventing the

“potential for arbitrariness.” Id.

Like Maher, section 18-205(a) has the same protections that limit the

commission’s discretion and saved the review criteria from the shoals of vagueness.

It has ten exhaustive criteria that the commission must consider before approving an

application. Town of Palm Beach, Fla., Code § 18-205(a). The “excessively

dissimilar” standard was geographically limited to comparing homes within 200 feet

of Burns’s mansion. Id. § 18-205(a)(6). The commission has a limited membership

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made up of no less than two, but no more than three, registered architects and one

landscape architect, and even the other members had to be “specially qualified” in

art, architecture, community planning, land development, real estate, landscape

architecture, or another relevant profession, or have “civic interest and sound

judgment” that could be used to determine the effects of a proposed building on “the

desirability, property values and development of surrounding areas.” Id. §§ 18-

166(a), 18-167(a). And the town council had the power to review arbitrary decisions

by the commission. Id. § 18-177.

Faced with similar ordinances, our sister circuits have reached the same

conclusion that we do. The Third Circuit concluded that the phrase “development

appropriate in scale, density, character and use for the surrounding community” did

“not provide ‘no standard at all.’” CMR, 703 F.3d at 631–32. There, the

Philadelphia ordinance defined the geographic reach of the provision, which

informed the definition of “community.” Id. at 632. And the other words could be

unambiguously understood by reference to their dictionary definitions. Id.

The Fifth Circuit has also applied Maher to an ordinance that required a

building’s color to “harmonize with the structure’s facade,” its materials to be

“architecturally and historically appropriate,” and its walkways to be “compatible”

with the walkways of “surrounding structures.” Mayes v. City of Dallas, 747 F.2d

323, 325 (5th Cir. 1984). Those criteria, the Fifth Circuit concluded, “provide[d]

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adequate legislative direction to the [c]ommission to enable it to perform its

functions consonant with due process.” Id.

And the Ninth Circuit has upheld an ordinance that gave a zoning commission

“authority to determine whether the use ‘would cause any damage, hazard, nuisance

or other detriment to persons or property in the vicinity.’” Turning Point, Inc. v.

City of Caldwell, 74 F.3d 941, 944 (9th Cir. 1996). The court determined that the

ordinance used language “characteristic of zoning regulation” that was “not so

general as to be unintelligible to any reasonable owner of property” and thus not

unconstitutionally vague. Id. The Third, Fifth, and Ninth Circuits recognized that

some of the exact words and phrases that Palm Beach used here, such as “harmony”

and “compatible” and a comparison of architectural styles among nearby structures,

were not vague and arbitrary. Given the detailed criteria and the procedural

protections in section 18-205(a), we cannot say that it provided “no rule or standard

at all.”

Fourteenth Amendment Equal Protection Claim

Burns argues that the district court erred in granting summary judgment on

his class-of-one equal protection claim because he offered evidence that the

commission reviewed fifteen midcentury modern designs (before Burns’s) and

approved all of them except one. This evidence, Burns says, showed that he was

treated differently than similar homeowners.

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The Fourteenth Amendment prohibits a state from “deny[ing] to any person

within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV,

§ 1. Our equal protection cases generally involve “governmental classification and

treatment that affects some discrete and identifiable group of citizens differently

from other groups.” Corey Airport Servs., Inc. v. Clear Channel Outdoor, Inc., 682

F.3d 1293, 1296 (11th Cir. 2012). But a select subset of decisions allow class-of-

one equal protection claims where “the identifiable group that was discriminated

against consisted solely of the plaintiff.” Id. at 1297 n.2. Specifically, we and the

Supreme Court have allowed class-of-one claims for “the government’s regulation

of property” because we have “a clear standard against which departures, even for a

single plaintiff, c[an] be readily assessed.” Engquist v. Or. Dep’t of Agric., 553 U.S.

591, 602 (2008); see also Vill. of Willowbrook v. Olech, 528 U.S. 562, 565 (2000)

(per curiam) (class-of-one challenge allowed to municipality’s requirement of an

abnormally long easement); Stardust, 3007 LLC v. City of Brookhaven, 899 F.3d

1164, 1176–77 (11th Cir. 2018) (discussing a class-of-one claim against a zoning

ordinance); Campbell v. Rainbow City, 434 F.3d 1306, 1314 (11th Cir. 2006)

(applying class-of-one analysis to a challenge of a zoning ordinance).

To succeed on a class-of-one claim in a zoning case, the plaintiff must show

that “she has been intentionally treated differently from others similarly situated and

that there is no rational basis for the difference in treatment.” Campbell, 434 F.3d

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at 1314 (quoting Olech, 528 U.S. at 564). Because “[d]ifferent treatment of

dissimilarly situated persons does not violate the equal protection clause,” the

plaintiff must show that those “others similarly situated” are “prima facie identical

in all relevant respects.” Id. (emphasis and internal quotation marks omitted). In

evaluating the similarly situated requirement, we look at the state action “in light of

the full variety of factors that an objectively reasonable governmental decisionmaker

would have found relevant in making the challenged decision.” Griffin Indus., Inc.

v. Irvin, 496 F.3d 1189, 1203 (11th Cir. 2007).

Palm Beach has given us “the full variety of factors that an objectively

reasonable governmental decisionmaker would have found relevant” in the form of

the statutory criteria it uses to review building permits—section 18-205(a). See id.

The statutory criteria are mandatory and apply to every application the commission

reviews. Town of Palm Beach, Fla., Code § 18-205(b). So, to show an equal

protection violation, Burns must offer evidence of similar mansions that the

commission approved based on the same criteria in section 18-205(a) that the

commission cited in rejecting his application.

The only evidence Burns points to in order to meet this burden is the report

his expert David Chase made for the commission. But Chase’s report does not show

that the mansions the commission approved were similar to Burns’s new mansion in

all relevant respects. Chase’s report identifies homeowners who had midcentury

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modern designs that were approved, but his report does not say that the other

midcentury modern designs were “not in harmony with the proposed developments

on land in the general area” but approved nonetheless. And Chase’s report did not

compare the architectural compatibility, massing, and size of Burns’s property to the

mansions the commission approved. Instead, the report provided summaries of the

commissioners’ thoughts on each application. But those summaries do not establish

that the fourteen midcentury modern designs the commission approved were

excessively dissimilar to nearby homes in the same way that the commission found

Burns’s new mansion excessively dissimilar to his neighbors’ homes. Chase’s report

does not show comparators that are “prima facie identical in all relevant respects.”

See Campbell, 434 F.3d at 1314 (emphasis omitted). Given the absence of evidence

of other similarly situated designs, Burns has not shown any difference in treatment.

His class-of-one claim fails.

CONCLUSION

We conclude that the district court did not grant summary judgment too early,

Burns’s proposed new mansion is not expressive conduct protected by the First

Amendment, section 18-205(a) is not unconstitutionally vague, and Burns was not

treated differently from other Palm Beach homeowners. Because Burns’s as-applied

challenges to section 18-205(a) fail, we also must reject his facial challenges. See

William Jefferson & Co. v. Bd. of Assessment & Appeals No. 3 ex rel. Orange Cnty.,

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695 F.3d 960, 963 (9th Cir. 2012) (“[A] facial challenge to a statute necessarily fails

if an as-applied challenge has failed because the plaintiff must establish that no set

of circumstances exists under which the [statute] would be valid.” (internal quotation

marks omitted)); Diaz v. Patterson, 547 F.3d 88, 101 (2d Cir. 2008) (same). We

affirm the district court’s summary judgment for the town in all respects.

AFFIRMED.

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MARCUS, Circuit Judge, dissenting:

Outside of Chicago there is a home called the Farnsworth House, nestled in

the woods along the Fox River. Or it was a home. Now it is a museum, a National

Historic Landmark, and a piece of our common cultural heritage. Designed by the

renowned architect Ludwig Mies van der Rohe, the Farnsworth House is a striking

piece of art. A single rectangular prism, two-thirds of which is enclosed by glass,

the remainder an open-air porch, elevated five feet above the ground by the white

steel beams that form its structure, the house blends seamlessly into its sylvan

surroundings. When the river floods, the water flows beneath the house; in the

snow its white beams and glass panes are nearly invisible; from within it is as

though one stands unsheltered in the forest. The house expresses the view of Mies

-- and of the home’s first owner, Dr. Edith Farnsworth -- that the modern world has

strayed too far from nature and lost the potential for individual fulfillment hidden

therein.

Donald Burns has lived in Palm Beach for many years. His current home is

built in a traditional style that matches that of his immediate neighbors. Seven

years ago, Burns decided that his house no longer reflected his identity and he

decided to build a house like the Farnsworth House, in the International Style. He

wants to do that because of the message he believes the International Style conveys

-- minimalism, individuality, and the pursuit of fulfillment in harmony with nature.

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He also might just find the style beautiful. Many do. The question in this case is

whether a government commission created by the Town of Palm Beach with the

Orwellian moniker “ARCOM” may prevent Burns from expressing his philosophy

and taste through the architecture of his home and create a work of art on land he

owns solely because a majority of the members of the Commission do not like the

way it looks.

In my view, the First Amendment -- the most powerful commitment to

think, speak, and express in the history of the world -- does not permit the

government to impose its majoritarian aesthetic whims on Burns without a

substantial reason. The First Amendment’s protection of the freedom of speech is

not limited to the polite exchange of words or pamphlets. It is not limited -- as the

majority suggests -- to public displays clearly related to the narrow issues of the

day. It protects art, like architecture, and it protects artistic expression in a

person’s home as powerfully as in the public sphere, if not more so.

The district court disagreed, based on its application of an incorrect legal

standard largely drawn from Second Circuit precedent concerned with the

commercial sale of expressive merchandise. Normally when a district court makes

an error of law, we vacate and remand and the temptation to do so is particularly

great here. But First Amendment cases are unique. When presented with a First

Amendment case where “the ultimate conclusions of law are virtually inseparable

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from findings of fact,” the Supreme Court has instructed us that “we are obligated

to independently review the factual record to ensure that the . . . court’s judgment

does not unlawfully intrude on free expression.” See Boy Scouts of Am. v. Dale,

530 U.S. 640, 648–49 (2000); see also Hurley v. Irish-Am. Gay, Lesbian &

Bisexual Grp. of Bos., 515 U.S. 557, 567 (1995) (“This obligation rests upon us

simply because the reaches of the First Amendment are ultimately defined by the

facts it is held to embrace, and we must thus decide for ourselves whether a given

course of conduct falls on the near or far side of the line of constitutional

protection.”).

Traditionally, this power is used to protect rights from government

encroachment. See Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485,

510–11 (1984) (“It reflects a deeply held conviction that judges—and particularly

Members of this Court—must exercise such review in order to preserve the

precious liberties established and ordained by the Constitution.”). The irony today

is the willingness of my colleagues to resolve factual disputes and draw factual

conclusions on their own, overlooking the obviously erroneous legal template

against which the district court measured this First Amendment case, and to do so

in order to curtail the freedom of expression, not to protect it.

After the majority conducts an independent review of the record to find that

the case before us falls on the “far side of the line of constitutional protection,” see

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Hurley, 515 U.S. at 567, it claims to “save for another day” the resolution of

issues critical to this case -- namely “whether residential architecture can ever be

expressive conduct” and “if so, what is the proper First Amendment test” -- while

effectively answering them through its review of the factual record and its

application of factors it draws from our recent decision in Fort Lauderdale Food

Not Bombs v. City of Fort Lauderdale, 901 F.3d 1235 (11th Cir. 2018). Majority

Op. at 30. It has done so in a way that virtually ensures that no piece of residential

architecture will ever garner First Amendment protection -- an outcome that is, as I

see it, at odds with the meaning of the First Amendment.

At the very least, whether the First Amendment precludes Palm Beach from

denying Burns the right to rebuild his house on his own property is a much closer

question than the majority acknowledges. The case comes to us on an incomplete

record. It comes to us without a resolution by the district court of questions basic

to the disposition of this case -- questions such as whether Burns’s artistic and

philosophical motivation is genuine, whether there is a likelihood that some sort of

message would be communicated to those who view Burns’s new home, whether

ARCOM had some reason other than its distaste for the aesthetics of the proposal

that motivated it to deny the permit, and whether the Town has reasons other than

its aesthetic distaste to support ARCOM’s determination. And because the

majority, like the magistrate judge and the district court before it, resolves this case

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on the threshold question of whether the architectural design of Burns’s home is

even protected expression, it never conducts the heightened scrutiny applicable, or

indeed any scrutiny at all, if it were protected.

On this record, I cannot reach the same outcome. As I see it, Burns’s

proposed home merits the protection of the First Amendment. I respectfully

dissent.

I.

Donald Burns has lived at 1021 N. Ocean Boulevard in a home on a popular

public beach for almost 20 years. His home is built in the Bermuda Style, as

shown in the photograph of the east facade below, similar to the traditional styles

of his immediate neighbors’ homes.

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Previously, Burns was attracted to the house’s style that communicated that

he “wanted to be like [his] neighbors in all respects,” but his views have evolved.

He has come to “embrace simplicity in lifestyle and living” and has said that he

intends to convey the message that he is “unique and different from [his]

neighbors.” The traditional style of his home, which communicates “history,

establishment, and stability,” no longer reflects those views or his identity.

In 2013, Burns decided to rebuild his home in the International Style -- a

style that better expresses his new perspective. International Style architecture is a

prominent style of modern architecture -- distinguished by simple lines, exposed

glass, white structural elements and open spaces -- that developed in the first half

of the twentieth century. Its proponents saw the integration of nature into human

living space as an antidote to the clutter and chaos of modernity. Burns worked

closely with a local architectural firm to design a new home in this style and

submitted it to the relevant authorities, as shown in the computer-generated

rendering of the west facade below.

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Burns’s proposal met every objective zoning requirement to be found in

Palm Beach’s Town Code. That the proposal met all objective zoning

requirements has never been disputed. Indeed, the Zoning Administrator for Palm

Beach asserted at a Town Council meeting that the house “me[]t code as it relates

to setbacks, lot coverage, landscape [and] open space.” In most municipalities in

the United States, this would have been the end of the story -- Burns had submitted

a proposal that complied with safety, size, and environmental requirements

prescribed by the Town, and it would permit him to build the home he wanted to

on the lot he owns in fee simple.

Not so in Palm Beach. In Palm Beach, in addition to meeting all objective

zoning requirements, new construction must win the approval of an Architectural

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Commission, established by the Town Council. Nicknamed “ARCOM,” the

Commission is a seven-member body of people “specially qualified by reason of

training or experience in art, architecture, community planning, land development,

real estate, landscape architecture, or other relevant business or profession, or by

reason of civic interest and sound judgment.” Code of Ordinances, Town of Palm

Beach, Florida §§ 18-166(a); 18-167(a). Charged with “creat[ing] beauty,

aesthetic order [and] amenity” and “preserv[ing] various elements of urban

beauty,” ARCOM reviews new projects for “harmony” in “beauty, spaciousness,

balance, taste, fitness, charm and high quality.” Id. §§. 18-146; 18-205. As

relevant here, ARCOM must disapprove proposals that are “excessively dissimilar

in relation to any other structure . . . within 200 feet,” with respect to

“[a]rchitectural compatibility,” “[a]rrangement of the components of the structure,”

“[a]ppearance of mass from the street . . . ,” or “[d]iversity of design that is

complimentary with size and massing of adjacent properties.” Id. § 18-

205(a)(6)(C)-(F). Similarly, to approve a proposal, ARCOM must find it

“appropriate in relation to the established character of other structures in the

immediate area or neighboring areas in respect to significant design features such

as . . . architectural design.” Id. § 18-205(a)(8).

Notably, there is no claim by the Town that this case involves historical

preservation, which is dealt with by a different committee in Palm Beach. See id.

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§ 18-175(c)(2) (“Individual structures and/or properties that have been designated

or are under consideration or in an historic district are subject to review by the

landmark preservation commission and shall not be subject to review by the

architectural commission.”). Nor for that matter does the Town argue, let alone

even suggest, that the construction of an International Style home, or even the

construction of Burns’s design, would diminish in any way the fair market value of

the property in the neighborhood.

Instead, this case arises because ARCOM -- or at least the majority of its

members -- hated Burns’s proposed design. They thought it was ugly. They

thought it was not in harmony, thought it was not appropriate. They thought it

lacked “beauty, spaciousness, balance, taste, fitness, charm and high quality.” “It’s

very hard to sit here and say, no, you shouldn’t build this house,” one ARCOM

member said. “[I]t fits on the lot, there are no variances required. . . . But this

house is so dissimilar in style, . . . and we are charged also with making sure that

we don’t let the character of Palm Beach go. And the character of Palm Beach has

not made it to the modern style yet.” Another expressed less reluctance to vote

against the proposal, baldly proclaiming “[t]here’s not a person in Christendom

who can convince me that this house is charming.” Still another said that “[w]e

can’t afford to make another mistake” by forcing “everybody who drives by . . . to

see this contemporary home which is not in harmony with the established character

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of th[e] neighborhood.” And another member noted that although “[i]f I were to

see this architecture in a different location, I might find it attractive,” there was

“just the problem of where it’s located.”

Burns made a series of revisions to the proposal in an effort to mitigate their

concerns. He and his design team first appeared before ARCOM in May 2016.

The Commission heard testimony from David Chase, an architect hired by Burns

who presented a report on the International Style in Palm Beach, and specifically

on fifteen International or Modern architectural designs that had been reviewed by

ARCOM and all but one approved. The Commission also heard from neighbors

and Palm Beach residents who were opposed to the project. The Commission

voted to approve Burns’s demolition application, but voted to defer their review of

the new house design. Burns revised the design, reducing the footprint, the length,

the mass of the roof, and the amount of glass on the exterior. He also moved the

house back from the seawall and increased the amount of landscaped open space.

In August 2016, Burns presented a revised application to ARCOM. The

Commission again heard from neighbors and residents who were opposed to the

project. Although one member introduced a motion to deny Burns’s application

based on the criteria in Section 18-205(a), it was rejected by the Commission 4 to

3. The Commission then voted to defer their review to allow a “restudy of the west

elevation, including the landscaping, the approach to the home and the possibility

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of installing gates.” Burns made still another series of revisions, including

modifications of the west facade, narrowing the entryway, adding more

landscaping and removing more glass from the facade.

But it appears there was little he could do short of abandoning the

International Style that was the purpose of his application. In the end, then,

notwithstanding Burns’s efforts to incorporate the Commission’s feedback,

ARCOM voted 5 to 2 to prevent him from building his new home.

II.

A.

The First Amendment protects art in its myriad forms. See Nat’l

Endowment for the Arts v. Finley, 524 U.S. 569, 580–82 (1998) (subjecting

regulations governing the National Endowment for the Arts to First Amendment

scrutiny); Hurley, 515 U.S. at 569 (noting that the “painting of Jackson Pollock,

music of Arnold Schöenberg, [and] Jabberwocky verse of Lewis Carroll” are

“unquestionably shielded” by the First Amendment); Ward v. Rock Against

Racism, 491 U.S. 781, 790 (1989) (“Music, as a form of expression and

communication, is protected under the First Amendment.”); Schad v. Borough of

Mt. Ephraim, 452 U.S. 61, 65–66 (1981) (“Entertainment, as well as political and

ideological speech, is protected; motion pictures, programs broadcast by radio and

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television, and live entertainment, such as musical and dramatic works fall within

the First Amendment guarantee.”); Southeastern Promotions, Ltd. v. Conrad, 420

U.S. 546, 557–58 (1975) (“By its nature, theater usually is the acting out—or

singing out—of the written word, and frequently mixes speech with live action or

conduct. But that is no reason to hold theater subject to a drastically different

standard.”); Kaplan v. California, 413 U.S. 115, 119–120 (1973) (noting that

“pictures, films, paintings, drawings, [] engravings, . . . oral utterance and the

printed word” are protected by the First Amendment); Joseph Burstyn, Inc. v.

Wilson, 343 U.S. 495, 501 (1952) (“It cannot be doubted that motion pictures are a

significant medium for the communication of ideas.”). This includes art involving

words -- undoubtedly speech -- and art devoid of words alike.

Some of our sister circuits have followed the Supreme Court’s lead and

announced categorical protection for artistic mediums. See, e.g. White v. City of

Sparks, 500 F.3d 953, 956 (9th Cir. 2007) (“So long as it is an artist’s self-

expression, a painting will be protected under the First Amendment, because it

expresses the artist’s perspective..”); Bery v. City of New York, 97 F.3d 689, 695

(2d Cir. 1996) (“Visual art is as wide ranging in its depiction of ideas, concepts and

emotions as any book, treatise, pamphlet or other writing, and is similarly entitled

to full First Amendment protection.”); Piarowski v. Ill. Cmty. Coll. Dist. 515, 759

F.2d 625, 628 (7th Cir. 1985) (“The [stained-glass] windows were art for art’s

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sake. But the freedom of speech and of the press protected by the First

Amendment has been interpreted to embrace purely artistic as well as political

expression (and entertainment that falls far short of anyone’s idea of ‘art’ . . .) . . .

.”).

The great challenge of this case is that the Supreme Court has never clearly

told us why art is protected. See Buehrle v. City of Key West, 813 F.3d 973, 976

(11th Cir. 2015) (observing that “the Supreme Court has never explicitly defined

the entire universe of artistic expression safeguarded by the First Amendment”). It

is often suggested that art is protected because it can convey political ideas. See,

e.g., Joseph Burstyn, 343 U.S. at 501 (describing “motion pictures as an organ of

public opinion”). But while some art does comment on politics, that role does not

delimit its First Amendment protection. See Finley, 524 U.S. at 602–03 (Souter,

J., dissenting) (“The constitutional protection of artistic works turns not on the

political significance that may be attributable to such productions . . . .”). Other

courts have suggested that the First Amendment encodes the theory that self-

expression is a good in itself. See, e.g., White, 500 F.3d at 956 (“So long as [a

painting] is an artist’s self-expression, [it] will be protected under the First

Amendment . . . .”).

In the end, the First Amendment’s protection of art could not be otherwise.

The guarantee of “freedom of speech” would be a mirage without the concomitant

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recognition of the way in which we communicate with each other about the things

that matter in life and politics -- things about human identity and aspiration, virtue

and vice, “courage and honor and hope and pride and compassion and pity and

sacrifice which have been the glory of [man’s] past,” William Faulkner, Banquet

Speech, The Nobel Prize (Dec. 10, 1950),

https://www.nobelprize.org/prizes/literature/1949/faulkner/speech/ -- in the stories

we tell, the paintings we view, and the homes in which we live.

Architecture is a form of art, and an expressive one of that. This is a

proposition already recognized by copyright law, which defines “architectural

work” as “the design of a building as embodied in any tangible medium of

expression.” 17 U.S.C. § 101 (emphasis added); see also H.R. Rep. No. 101-735

(1990), as reprinted in 1990 U.S.C.C.A.N. 6935, 6936 (“Architecture is a form of

artistic expression that performs a significant societal purpose, domestically and

internationally.”); Imperial Homes Corp. v. Lamont, 458 F.2d 895, 897 (5th Cir.

1972) (“[T]he architect who originates a set of blueprints for a dwelling is as much

an author for copyright purposes as the writer who creates an original novel or the

dramatist who pens a new play.”).

Like other forms of art, architecture can inspire, humble, awe, reflect on

continuity with the past, offer a radical departure therefrom, or adapt old themes to

modernity. Architecture, like other art, can seek to reflect nature, transcend it, or

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subdue it. Like other forms of art, architecture can push what we expect from and

explore the limits of human imagination.

Architecture’s relationship with other arts has always been symbiotic.

Leonardo Da Vinci, for example, was celebrated as a painter, sculptor, inventor,

and architect. Richard Wagner, the virtuoso composer, also designed the Beyreuth

Festspielhaus, or Festival Theater, to showcase his operas and his worldview -- he

saw the architecture of the music hall to be one and the same as the music that

would be performed there. The great architect Le Corbusier was a painter and a

writer as well as an icon of the Modernist movement of the Twentieth Century.

That architecture is an expressive art is a proposition that has stood

unchallenged for millennia. The Greek philosophers and the Romans knew this, as

did the Renaissance humanists. We continue to visit places such as the Parthenon

at the Athenian Acropolis and the ruins of the Forum of Rome because the

architecture communicates something about the people who built it. The legacies

of these political systems are now often synonymous with their architectural

remains.

Although it is no prerequisite to First Amendment protection, architecture

can be a profoundly political form of art. See, e.g., John Ruskin, The Seven Lamps

of Architecture 2 (Smith, Elder, and Company 1849) (describing “the distinctively

political art of Architecture”). As George Ranalli, an architect and author who

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provided an expert report on architectural history in this litigation, notes, Mies van

der Rohe once described architecture as “the will of an epoch translated into

space.” Buildings make a statement about how we want to live, a statement that

can have plainly political impulses and implications. A brick colonial speaks of

stability, the importance of continuity and the nuclear family; a log-cabin on the

prairie of independence and self-reliance. Indeed, architecture can make a more

powerful political statement in some ways than direct political speech. Just as “the

totalitarian state . . . ha[s] censored musical compositions to serve [its] needs,”

Ward, 491 U.S. at 790, tyrants have always been aware of the political power of

architecture. Hitler kept the architect Albert Speer in his inner circle, trusting him

to design the buildings of his new Reich. The Emperor Napoleon III deputized

Baron Georges-Eugène Haussmann to design a new Paris that would impress upon

the world the civility and grandeur of his Second Empire -- and be easier to subdue

in the event of insurrection.

Governments have recognized the value of architecture in more benign ways

as well. Writing to James Madison in 1785, Thomas Jefferson explained that

architecture could be used to educate his fledgling country:

But how is a taste in this beautiful art to be formed in our countrymen,

unless we avail ourselves of every occasion when public buildings are

to be erected, of presenting to them models for their study and

imitation? . . . You see I am an enthusiast on the subjects of the arts.

But it is an enthusiasm of which I am not ashamed, as its object is to

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improve the taste of my countrymen, to increase their reputation, to

reconcile to them the respect of the world and procure them its praise.

Burford Pickens, Mr. Jefferson as Revolutionary Architect, 34 J. of the Soc’y of

Architectural Historians 257, 260 (1975). We need only turn to our nation’s civic

buildings for an example of this enacted. The architecture of the National Mall in

Washington, D.C. proudly evokes the architecture of democracy. As Ranalli

explains, the Lincoln Memorial, for one, “loosely represent[s] a temple of classical

antiquity, the Parthenon, with additional Roman elements.” He characterizes the

building as a “marriage of unlike Classical and Modern styles” meant to evoke

“American conviction in the rule of law and its impartiality, and the consent of the

governed to the wisdom and justice of the laws that make their liberty possible,

memorably articulated through these various avenues of associational meanings.”

The Memorial sits alongside other neoclassical marvels like the United States

Capitol, which together announce to the nation, and to the world, America’s

enduring commitment to self-governance.

Similarly, there can be no doubt that architecture is an act of self-expression

-- always of the architect, and often too of the person who commissioned the

building. We have previously held that tattooing is protected as an expressive

collaboration between an artist and a patron. See Buehrle, 813 F.3d at 977–78

(observing that “[p]rotected artistic expression frequently encompasses a sequence

of acts by different parties, often in relation to the same piece of work”).

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In part, it is the meeting of the aesthetic with the utilitarian in architecture

that sets it apart from other arts and creates the expressive value of architecture.

Architecture, Paul Goldberger, an architectural critic and another of Burns’s

experts, reminds us, “is both a practical matter and an art, and it is in the

interdependence, and the tension, between these two characteristics that its unique

nature lies.”

Residential architecture does not lose its expressive qualities because it is

also practical. The great palaces of Europe -- Versailles, the Winter Palace,

Schönbrunn -- all housed their country’s royal families and their accompanying

staff, but are still recognized as architectural marvels. There is nothing in the

theory either of artistic expression or architectural aesthetics that changes merely

because a person spends the night in a building.

Nor does it change when the building is owned for purely private use.

Instead, the expressive nature of architecture is connected to that individual, rather

than to a collective identity. “Like music, dance, and visual art, residential

architecture can be a highly expressive way to communicate lifestyle choices,

political stances, and individuality.” Janet Elizabeth Haws, Architecture As Art?

Not in My Neocolonial Neighborhood: A Case for Providing First Amendment

Protection to Expressive Residential Architecture, 2005 BYU L. Rev. 1625, 1644

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(2005). The home, and especially its facade, may act as a stand-in for the

individual’s own face.

Just like public buildings, there is a long history of the use of private

residential architecture to convey symbolic messages. Perhaps the first

architectural treatise ever written, De Architectura by the Roman architect

Vitruvius, contains an entire volume on domestic buildings. So too is there an

American tradition of communicative residential architecture. Thomas Jefferson

designed his home at Monticello, using “an architectural vocabulary based upon

classical antiquity [that] symbolizes both the aspirations of the new American

republic as the inheritor of European tradition and the cultural experimentation that

could be expected as the country matured.” Monticello and the University of

Virginia in Charlottesville: World Heritage Site, National Park Service,

https://www.nps.gov/articles/000/monticello-and-the-university-of-virginia-world-

heritage-site.htm (last updated July 15, 2020); see also Pickens, supra, at 257.

Today, Monticello is a National Historic Landmark as well as a World Heritage

Site, and understood to be “an outstanding example of a neoclassical work of art.”

Monticello and the University of Virginia in Charlottesville: World Heritage Site,

supra.

Of course, the Founding is not the only period in American history with

notable examples of the symbolic value of residential architecture. Ranalli

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explains that “[p]erhaps[] no American architect has made a stronger contribution

to the symbolic meaning of the” home than Frank Lloyd Wright. Born in the years

following the Civil War, Wright began his career as an architect at the turn of the

twentieth century and is credited with the reinvention of American residential

architecture. Wright’s designs, most notably his Prairie style homes, represented a

stark departure from the traditional homes that dominated American architecture at

the time, and as Ranalli explains, helped “realign the aristocratic art of residential

architecture more closely to modern democratic ideals.” A forefather of

modernism, Wright’s homes are an exemplary combination of aesthetic and

functional concerns. To commission a Prairie house in the early twentieth century,

then, was to communicate a desire to be new, to be modern, and to be uniquely

American.

Nor are Wright’s houses the last examples of expressive modern residential

architecture that readily come to mind. Instead, this country is filled with notable

examples, including Walter Gropius’s House in Massachusetts, Frank Lloyd

Wright’s Fallingwater in Pennsylvania, John Yeon’s Watzek House in Oregon,

Mies van der Rohe’s Farnsworth House in Illinois, Philip Johnson’s Glass House

in Connecticut, Charles and Ray Eames’s House in California, John Lautner’s

Schaffer House in California, and Eero Saarinen’s Miller House in Indiana. Each

of these homes has been designated a National Historic Landmark or are on the

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National Register of Historic Places and they are all widely recognized to be

important parts of our American cultural heritage.1

The majority suggests that these references to architectural marvels and

famous architects -- as well as International Style and modern architectural theory

cited later on -- are “extra-record” fact-finding, and therefore, inappropriate for

inclusion or discussion. The majority would have us feign ignorance to centuries

of world history, well-known and not subject to dispute, in order to resolve this

case in a vacuum. It is nothing new for the federal courts to turn to historical facts

that may exist outside the record. See, e.g., Allison Orr Larsen, Confronting

Supreme Court Fact Finding, 98 Va. L. Rev. 1255, 1276 (2012) (“Several of the

sources Justice Scalia uses in [District of Columbia v. Heller] to set forth the

history of the language of the Second Amendment were drawn from outside of the

party briefs or the hundreds of amicus briefs filed in that case.”).

1

The origin of the National Historic Landmark program can be traced back to the New Deal era

Historic Sites Act, 49 Stat. 666 (current version at 54 U.S.C. § 320101), as well as to the

National Register of Historic Places. See Jess R. Phelps, Preserving National Historic

Landmarks?, 24 N.Y.U. Envtl. L.J. 137, 147–61 (2016) (describing the history of federal

preservation law). Some of the criteria for becoming a National Historic Landmark focus

primarily on the aesthetics of architecture, such as that the buildings “embody the distinguishing

characteristics of an architectural type specimen exceptionally valuable for a study of a period,

style or method of construction,” while others recognize architecture’s expressive potential, such

as that the buildings “collectively compose an entity of exceptional historical or artistic

significance, or outstandingly commemorate or illustrate a way of life or culture,” or even just

“represent some great idea or ideal of the American people.” 36 C.F.R. § 65.4(a)(4)–(6). These

buildings, and the regulatory regime designating them as important, may be judicially noticed.

See, e.g., 44 U.S.C. § 1507; see also N.L.R.B. v. Goya Foods of Fla., 525 F.3d 1117, 1139 n.30

(11th Cir. 2008).

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And today we need not go outside the realm of indisputable facts in order to

recognize the historical examples referenced herein. These examples are matters

of historical fact and, in most cases, are surely part of the “common knowledge”

this Court has cited so many times before. My colleagues take issue with this,

arguing that by looking beyond the record I consider more architecture than this

case requires. Majority Op. at 21–24. But these constitutional questions do not

exist in a vacuum. Indeed, the oft-cited quotation from Hurley v. Irish-American

Gay, Lesbian & Bisexual Group of Boston -- that a particularized message is not a

precondition for constitutional protection otherwise it “would never reach the

unquestionably shielded painting of Jackson Pollock, music of Arnold Schöenberg,

or Jabberwocky verse of Lewis Carroll” -- would not exist if the Supreme Court

had only passed comment on St. Patrick’s Day parades. See 515 U.S. at 569.

Moreover, the current record is limited on these points because, as the

majority admits, the Town did not dispute the fact that architecture is art. Burns’s

counsel explained it succinctly in a hearing on the summary judgment motion: “it’s

one of those things that’s obvious on its face that architecture is a form of art. It

permeates our society.” Similarly, no one has challenged Burns’s claim that his

proposed home was built in the International Style or argued that International

Style architecture is lacking in distinctive meaning. By considering the larger

history of residential architecture it seems to me indisputable that it may have a

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communicative element worthy of First Amendment protection, either through the

application of the expressive conduct test or as analogous to other forms of

protected artistic expression.

As I see it, the majority’s resolution of this case cannot easily be squared

with well-settled law recognizing the First Amendment’s protection of artistic

expression in all of its forms. An analysis of this kind would yield the odd

conclusion that a tourist’s drunkenly obtained tattoo is art protected by the First

Amendment, see Buehrle, 813 F.3d at 980, n.2, while Philip Johnson’s Glass

House is not; “coin-operated devices by virtue of which a customer could sit in a

booth, insert a coin and . . . watch a live dancer, usually nude,” are protected,

Schad, 452 U.S. at 62, Monticello is not; anodyne elevator music is protected, see

Ward, 491 U.S. at 790, the Empire State Building is not. These distinctions seem

to me to be indefensible. I do not see how we can declare in one breath that

tattooing is protected by the First Amendment because it is “virtually

indistinguishable from other protected forms of artistic expression,” Buehrle, 813

F.3d at 976, but that architecture is so different as to be excluded from protection

in another. At least, we cannot without undermining our aspiration to an

intelligible jurisprudence.

Holding that architecture is a form of art (as it obviously is) would not, as

the Town of Palm Beach seems to suggest, subject all construction in the United

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States to the rigors of First Amendment scrutiny. That architecture is a form of art

does not mean all buildings are art. Holding that architecture is a form of art

would mean precisely what it says -- that some architectural construction can be

artistic and may be protected by the First Amendment.

B.

To determine which architectural construction is artistic and worthy of

protection, we look to the First Amendment. “Congress shall make no law . . .

abridging the freedom of speech . . . .” U.S. Const. Amend. I. However, the

constitutional protection for freedom of speech “does not end at the spoken or

written word.” Texas v. Johnson, 491 U.S. 397, 404 (1989). The First

Amendment guarantees “all people [ ] the right to engage not only in ‘pure

speech,’ but ‘expressive conduct,’ as well.” Holloman ex rel. Holloman v.

Harland, 370 F.3d 1252, 1270 (11th Cir. 2004) (citing United States v. O’Brien,

391 U.S. 367, 376–77, (1968)). As our Court recently noted, “[a] sharp line

between ‘words’ and ‘expressive acts’ cannot . . . be justified in Madisonian terms.

The constitutional protection is afforded to ‘speech,’ and acts that qualify as signs

with expressive meaning qualify as speech within the meaning of the

Constitution.” Fort Lauderdale Food Not Bombs, 901 F.3d at 1240 (quoting Cass

R. Sunstein, Democracy and the Problem of Free Speech 181 (1993)).

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The Supreme Court has instructed us that when analyzing the scope of First

Amendment protection beyond “pure speech,” courts should apply the expressive

conduct test drawn from Spence v. Washington, 418 U.S. 405, 409 (1974). In

Spence, the Court asked whether the challenged activity “was sufficiently imbued

with elements of communication to fall within the scope of the First” Amendment.

Id. A court must examine whether “[a]n intent to convey a particularized message

was present, and [whether] the likelihood was great that the message would be

understood by those who viewed it.” Johnson, 491 U.S. at 404 (quoting Spence,

418 U.S. at 410–11).

Though it may seem odd to analyze art, and especially concrete, tangible art,

through a test articulated for conduct, ultimately the Spence/Johnson test asks

courts to look for indicia of expression. Thus, when confronted with a claim that a

particular instance of art is protected, the courts must decide on which side of the

expressive line it falls. While I have little doubt that architecture is artistic

expression deserving of First Amendment protection, answering whether this

house is architecture deserving protection requires us to dig deeper into our

precedent.

This type of line-drawing is commonplace for the First Amendment.

Photography, like architecture, has expressive as well as utilitarian value. And

while its expressive forms -- such as in the works of Ansel Adams and Alfred

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Stieglitz -- are clearly deserving of protection, courts have been willing to draw a

line when expression is lacking. See, e.g., Porat v. Lincoln Towers Cmty. Ass’n,

No. 04 Civ. 3199 (LAP), 2005 WL 646093, at *4–*5 (S.D.N.Y. Mar. 21, 2005)

(holding that “purely private recreational, non-communicative photography” is not

protected expression while acknowledging that “communicative photography is

well-protected by the First Amendment”); Larsen v. Fort Wayne Police Dep’t, 825

F. Supp. 2d 965, 979 (N.D. Ind. 2010) (holding that the “First Amendment is not

implicated because a person uses a camera”); State v. Chepilko, 965 A.2d 190,

199, 202 (N.J. Super. Ct. App. Div. 2009) (observing that “the fact that some

photography qualifies as expressive conduct entitled to First Amendment

protection” does not mean the defendant’s sale of photographs on a boardwalk is

protected).

Similarly, “[n]ot all dancing is entitled to First Amendment protection as

expressive activity.” Barnes v. Glen Theatre, Inc., 501 U.S. 560, 581 (1991)

(Souter, J., concurring in the judgment). Some forms of nude dancing are

protected under the First Amendment, see Schad, 452 U.S. at 66 (“[N]ude dancing

is not without its First Amendment protections from official regulation.”), but

“recreational dancing” is not, City of Dallas v. Stanglin, 490 U.S. 19, 25 (1989).

Since the inquiry turns on expressiveness, the Spence/Johnson test may be the best

analytical tool we have.

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As I see it, the district court erred by departing from the expressive conduct

test, attempting instead to glue together elements drawn fr

This text is long and has been trimmed here. Open the source document for the complete record.