Petition for Writ of Certiorari — Donald Burns, Petitioner v. Town of Palm Beach, Florida

App. 1

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 18-14515

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

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DONALD BURNS,

Plaintiff-Appellant,

versus

TOWN OF PALM BEACH,

a Florida municipal corporation,

Defendant-Appellee.

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Appeal from the United States District Court

for the Southern District of Florida

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(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 mansion, Burns says, will reflect his evolved

App. 2

philosophy of simplicity in lifestyle and living with an

emphasis on fewer personal possessions. The new twostory 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.”

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

App. 3

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 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.”

App. 4

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-registered architects.

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.

App. 5

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

App. 6

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:

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.

App. 7

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.

App. 8

(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

App. 9

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, 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

App. 10

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 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-twofoot-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

App. 11

commissioners’ statements about the designs. He

compared the 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 18205(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.

App. 12

(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 through. The angle of the louvers

App. 13

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]

App. 14

(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 twocount complaint, Burns brought a Fourteenth Amendment due process void-for-vagueness challenge and an

equal protection challenge to 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

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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.

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

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).

App. 16

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.

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

App. 17

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

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

App. 18

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.

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

App. 19

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 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)

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).

App. 20

(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 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

App. 21

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

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

App. 22

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 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:

App. 23

•

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;

•

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:

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.

App. 24

•

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-worldheritage-site.htm, id. at 89;

•

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/elizabethgordon-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.

App. 25

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 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.

App. 26

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 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

App. 27

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) 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

App. 28

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, 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

App. 29

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.

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).

App. 30

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). 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

App. 31

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 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 easierto-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.

App. 32

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 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

App. 33

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.

*

*

*

“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

App. 34

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.’ ” 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

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.

App. 35

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 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

App. 36

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.

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

App. 37

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 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

App. 38

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

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-sixteenfoot-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

App. 39

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 100-01.

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.”

App. 40

•

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

view from this popular beach. . . . [Burns]

does not have 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

App. 41

design because it was blocked by landscaping and

fences.

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

App. 42

architectural expert told the commission that there

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

App. 43

adequate.” From day one, Burns wanted to conceal

from his neighbors what he now says is his message.

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

App. 44

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 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”

App. 45

creating a “visual barrier” between the new mansion

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

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 11112. 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

App. 46

guests. The dissenting opinion finds it “hard to imagine

that Burns intended to rebuild his home 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 110-10, 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

App. 47

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.

of these are First Amendment cases. Lawrence and Griswold were

substantive due process cases, while Kyllo and 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 2038

(“This case presents the question whether the use of a thermalimaging 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”).

App. 48

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.

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.

Pearcy, 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

App. 49

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.

*

*

*

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

App. 50

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. 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

App. 51

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

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

App. 52

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 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

App. 53

than some academic-sounding 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.

App. 54

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

country; it is, one might say, the one visible

App. 55

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 Supreme Court’s decision in

Hurley, the parade case. 901 F.3d at 1242 (citing

App. 56

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 40506). 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 does, that the Fort Lauderdale factors are not the

same as the factors the Supreme Court considered in

App. 57

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 midcentury modern design as conveying some sort of message. But none of

these journals and articles are evidence; none of them

App. 58

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 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,”

App. 59

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 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

App. 60

the “incomplete record.” Dissenting Op. at 74,

98.

•

The section 18-205(a) criteria are not contentbased 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 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.

App. 61

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 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

App. 62

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 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

App. 63

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 challenge and proceeding with the void-forvagueness 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

App. 64

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 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

App. 65

“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 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,

App. 66

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] 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

App. 67

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.

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

App. 68

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 classof-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-ofone 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 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

App. 69

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 § 18205(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 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

App. 70

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., 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. Paterson, 547 F.3d 88, 101 (2d

Cir. 2008) (same). We affirm the district court’s summary judgment for the town in all respects.

AFFIRMED.

App. 71

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, twothirds 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. He also might just find the style beautiful. Many

do. The question in this case is whether a government

App. 72

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

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

App. 73

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 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

App. 74

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 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.

App. 75

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.

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

App. 76

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.

App. 77

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

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

App. 78

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.

§ 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,”

App. 79

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 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,

App. 80

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 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

App. 81

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 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

App. 82

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 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

App. 83

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

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.”).

App. 84

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 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

App. 85

Architecture 2 (Smith, Elder, and Company 1849) (describing “the distinctively political art of Architecture”). As George Ranalli, an architect and author who

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

App. 86

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 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

App. 87

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”).

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,

App. 88

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 (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-virginiaworld-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

App. 89

symbolic value of residential architecture. Ranalli 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

National Register of Historic Places and they are all

App. 90

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

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).

App. 91

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.”).

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

App. 92

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 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

App. 93

seems to suggest, subject all construction in the United

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)).

App. 94

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 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

App. 95

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, 405 N.J.Super.

446, 965 A.2d 190, 199, 202 (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.

As I see it, the district court erred by departing

from the expressive conduct test, attempting instead

to glue together elements drawn from the Second Circuit’s “dominant purpose” test found in a case involving

the sale of expressive merchandise with the

Spence/Johnson test. As the Second Circuit explained

App. 96

in Mastrovincenzo v. City of New York, decorated commercial goods that “clearly ha[ve] a[n] alternative, nonexpressive purpose” are “more likely to possess only

marginally expressive content.” 435 F.3d 78, 95 (2d Cir.

2006). The court must consider whether the expressive

elements of such items “may fairly be characterized as

dominant” before extending First Amendment protection. Id. at 96. The court also must “take into account

other factors that shed light on how and why an object

is being sold or disseminated.” Id.

The magistrate judge found, and the district court

agreed, that “the predominant purpose of Burns’ structure was non-expressive” and therefore was not entitled to First Amendment protection. But the “dominant

purpose” test has not been adopted by this Circuit nor

should it be applied to architecture, which does not involve the same concerns as those associated with the

sale of baseball caps or other “objects adorned with

only minor artistic adjustments.” Mastrovincenzo, 435

F.3d at 96. The application of the “dominant purpose”

test to residential architecture would virtually ensure

that no home would ever qualify for First Amendment

protection. Further, even when separately considering

the second prong of Spence/Johnson, the district court

was clearly influenced by the “dominant purpose” test

and its emphasis on an item’s function.

The district court applied the wrong legal standard to Burns’s First Amendment claim. The thrust of

its analysis is pegged to the wrong template. For this

reason alone, I would vacate and remand, directing the

district court in the first instance to find facts and

App. 97

measure them against the appropriate standard of law.

My colleagues undertake that task themselves, and

while they are surely free to do that, I think that it

would be wiser to give the district court the first crack

at the fact-bound questions. This seems to me to be especially so because by applying the wrong standard,

yielding the wrong conclusion, the district court never

got around to struggling with the additional difficult

questions surrounding whether ARCOM barred Burns

from building his home simply on account of content

and whether the Town had any other sound interests

that might otherwise justify so blatant an attempt to

stamp out a long accepted architectural form simply

because it found it to be distasteful. Nor do we have the

benefit of factual findings on critical issues such as

whether the home was visible from the beach or credibility determinations because the Town, the magistrate judge, and the district court found this to be an

open-and-shut case. Instead, Burns’s house presents a

novel First Amendment claim and an important one

for the freedom of artistic expression.

III.

A.

While the majority properly selects the Spence/

Johnson framework, in my view its application of that

test is deeply flawed. The first question we must answer is whether “[a]n intent to convey a particularized

message was present.” Johnson, 491 U.S. at 404 (citing

Spence, 418 U.S. at 410-11). On this point, the parties

App. 98

do not dispute that Burns had an intent to convey a

particularized message through his house and the majority admits as much. Majority Op. at 33. As Burns

declared, it was his “intention that the design of the

new house [ ] be a means of communication and expression of the person inside: Me.” Burns explained that

the International Style “communicates that it is not

old-fashioned; it is clean, fresh, independent, modern,

and different from what I, and my prior home, were in

the past.” He hired professional architects to help him

with that act of expression. But that entitles him no

less to the protection of the First Amendment. The majority agrees that, at least for purposes of summary

judgment, Burns intended to convey a message

through the design of his home. It resolves the case on

the second prong.

The second prong asks 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). The Supreme Court has

cautioned that there cannot be “an apparently limitless variety of conduct [that] can be labeled ‘speech’ ”;

thus, “the factual context and environment in which

[the activity] was undertaken” serve as a limiting principle to separate generic activities from expressive

ones. Spence, 418 U.S. at 409-10 (internal quotation

marks omitted). In this Circuit, “we ask whether the

reasonable person would interpret it as some sort of

message, not whether an observer would necessarily

infer a specific message.” Holloman, 370 F.3d at 1270

(emphases omitted).

App. 99

My colleagues brush off Burns’s First Amendment

claim with the easy conclusion that “[a] reasonable

viewer would not infer some sort of message from

Burns’s new mansion because, quite simply, a viewer

can’t see it.” Majority Op. at 33. They say that Burns’s

“design calls for carefully shielding those purportedly

expressive elements from any viewer.” Majority Op. at

37. But, as I read this record, it seems clear that

Burns’s proposed home would be visible to the Palm

Beach community.

The east side of Burns’s home faces a well-trafficked public beach and the Atlantic Ocean. Burns’s final presentation to ARCOM included photographs of

the current house and several depictions of the proposed one—through architectural drawings, renderings, and a three-dimensional model—showing the

house in relation to that beach.2 For starters, the following aerial photograph of the current house shows it

in the neighborhood context and reveals a dark, dense

perimeter of landscaping along three sides of the home,

but a lighter, open lawn facing the ocean.

2

These are the kinds of materials one would look to in order

to discern what a new home might look like. And, indeed, these

are the kinds of materials that ARCOM considers when reviewing

a new home. For example, the Town of Palm Beach Zoning Application Checklist requires the submission of signed plans, including streetscapes and elevations.

App. 100

Each representation of the proposed home presented to ARCOM included a view of the house with

the proposed landscaping. The images below clearly

show that the landscaping plan would provide a dense

shield from the neighboring properties to the north,

west, and south, but notably an almost unobstructed

view to the east and the water. For example, the following is Burns’s landscape architect’s plan for the landscaping, which shows precise drawings for the

perimeter landscaping and dots for the existing palm

trees, but no raised landscaping through the center of

the lawn toward the beach.

App. 101

Similarly, the following computer-generated rendering of what the home would look like from the beach

shows the home flanked by trees and with small

shrubs in front, but completely visible from the beach

and the water. This rendering shows the lawn, beach,

and ocean. And the record establishes that the house

is 74.83 feet from the existing sea wall demarcating the

beach. This is a shorter distance than it is from home

plate to first base.

Finally, the following photograph of the three-dimensional model facing eastward and toward the

ocean shows the palm trees on the corners of the lawn

and an open expanse in between.

App. 102

The lack of landscaping on the east side is even more

notable when compared with the west side of the property, which shows a dense foliage screen between the

home and the neighbors to the north and south, and

between the home and the street to the west.

App. 103

The majority suggests that these images are somehow misleading, as if Burns and his team purposefully

skewed the representation of the east side but not the

other three. For example, the majority notes that the

physical model should have “[a] lot more” foliage on the

backside. Majority Op. at 43. But it is worth turning to

what Burns’s landscape architect, Keith Williams, actually said to ARCOM. Over the course of several

ARCOM hearings, Williams explained to the Commission that the majority of the landscaping work would

be focused on the north, west, and south sides of the

home—i.e., to shield the house from the street and

from the two neighboring properties. The east side,

however, would remain mostly “undisturbed.” Speaking to one ARCOM member at the second hearing, Williams explained that he would add more sea grape on

the east side, focused along the northern and southern

property lines, not on the central lawn facing the Atlantic Ocean. The transcribed dialog between Williams

and this ARCOM member from the second ARCOM

hearing makes this clear:

[ARCOM]: . . . When I’m looking at the

model and I’m looking at your elevations and

plan views of your landscaping, there’s a lot

more landscaping on the north and south of

that east elevation than you see in the model

is that because that’s in the neighbor’s yard?

Mr. Williams:

No it’s just the model person—

[ARCOM]: Because if I’m looking at the

north side there on your plans there’s a lot

more sea grape it looks like.

App. 104

Mr. Williams: The sea grape is on the neighbor’s property.

[ARCOM]: That’s what I’m asking you.

That’s a lot thicker there.

Mr. Williams: Exactly. Much thicker and our

idea—what we’re proposing to do, which we

didn’t do originally is to pick up on that and

actually bring that back in towards the house.

So when you come to the side of the property

you actually walk through those sea grape.

[ARCOM]: So on the rear—from the land,

that’s a lot more screening there than what

the model shows?

Mr. Williams: A lot more. Unfortunately the

model company doesn’t have sea grape.

(Emphases added). Furthermore, Williams made it

abundantly clear at the third and final ARCOM hearing what the final plan for landscaping would look like

on the east side. He said, “[t]here is a continuation of

lawn, just as it is today. There are existing sea grapes

on the north neighbors’ property and on the south

neighbors’ property. We’re kind of adding to those. Not

towards the ocean, but adding towards the house, into

our property.” (Emphases added).

Ultimately, then, these images are clear and consistent in their representation of the landscaping on

the east (ocean) side of the proposed home. Each one

presents the same depiction of the home and of the

landscaping and reflects landscape architect Williams’s testimony before ARCOM. The majority

App. 105

inexplicably refers to these images as “old,” but these

were the very images Burns presented to ARCOM at

the final hearing when the Commission rendered its

decision. Majority Op. at 44.

Moreover, the perspective offered by the architectural drawings, renderings, and the three-dimensional

model is corroborated by a record abundant with examples of neighbors concerned with Burns’s proposed

design precisely because the home can be seen from

the vantage point of the beach. One neighbor wrote to

the Town, “[w]e suggest that you look at the homes

from the beach. The proposed home for 1021 N. Ocean

is not compatible with the existing homes.” Or as another put it, “[t]here is no way to hide this home from

viewers on the beach.” Many objectors lamented that

Burns’s design would ruin the quality of the beach. As

one put it, “[m]y family and I have long enjoyed the

picturesque flowing [lawns] currently existing on the

ocean in this unique neighborhood. The proposed

house plan would unquestionably disrupt that idyllic

view as well.” Another objector asked ARCOM to

“[i]magine walking the beach, as so many people do,

and enjoying the many traditional homes and then

coming upon a very large contemporary home.” And

another argued that “[w]ith regard to the view from

the ocean, and the popular public beach accessed by

Eden Road, the house will still mar the ambience and

view.” Still another explained that “[i]f this house were

to be approved, beachgoers currently enjoying an expanse of lawns and traditional-design homes will be

forced to look at a higher house with a mass and design

App. 106

incompatible and disharmonious with its neighbors

and neighborhood, marring the current scenic view.”

And another, “[t]his house will be directly viewed from

a popular public beach. . . . This excessively dissimilar

house negatively affects the views of the public from

the public beach.” Similar comments were made during the ARCOM hearings, including by an attorney for

one neighbor who explained that “[o]ne of my concerns

is that you are supposed to look at natural vistas. If

you still want to walk on that beach, you’re supposed

to preserve and enhance those.”

That the house would be visible to the public from

the beach was understood by ARCOM as well. As one

ARCOM member explained, while the house would be

hidden from the street, the “exception for that is if

you’re walking on the beach, then of course you’re going to see this house.” (Emphasis added). Another

commented that “[t]his is a particular area of the

north end where I really like to walk on the beach. So

I appreciate that when I look at this site now . . . [i]t

makes me look on the other side.” And a third explained that if “I were walking on the beach or sailing

by here, I would be kind of—you’re turning something

which had a little bit of a harmonious stretch there into

a—you’ve got something that clearly doesn’t match the

others.”

The majority attempts to bolster its conclusion by

drawing a distinction between seeing the house’s design and its “height” and “mass.” Majority Op. at 3839. But the majority does not explain how “height” and

“mass” are different than design. Design is “the

App. 107

arrangement of elements or details in a . . . work of

art.” See “Design,” Merriam-Webster Dictionary,

https://www.merriam-webster.com/dictionary/design (last

visited Jan. 20, 2021). The elements that make up the

design undeniably include height and mass.

Indeed, the treatment of height and mass incorporated here are hallmark features of International Style

design, which as David Chase put it in his written

presentation to ARCOM, is “[c]haracterized by ‘white’

rectilinear forms, cantilevered construction, interior/

exterior openness, steel, glass, concrete wall planes,

flat roofs, horizontal linear elements and asymmetrical

composition, which is absent of ornamentation.” The

majority concedes that Burns sought to express a message through these International Style features in the

house’s “simple lines, minimal decorative elements,

and open spaces built of solid, quality materials,” Majority Op. at 37, but does not explain how those elements are somehow hidden while the height and mass

are not. As can be seen from the renderings already

cited, more than a “sliver” of the home’s design—including its height, mass, materials, minimal adornment, flat roof, and simple lines—is visible.

The majority’s conclusion also leaves one to wonder why Burns would create a home with floor-to-ceiling windows only to block the view of the ocean. It

would be hard to imagine an International Style design that failed to integrate the home with its natural

setting, including the backdrop of the Atlantic. And in

this case, we know the design of Burns’s home intended to do just that. As Ranalli put it, the design of

App. 108

Burns’s home sought to incorporate the home’s natural

setting, working with “vistas of sea and sky . . . visible

through the large grey tinted-glass” in order to “turn[ ]

rooms inside out, to transform views into landscape

art.”

It also would be hard to understand why Burns’s

design created so much controversy—controversy that

made it all the way to the United States Court of Appeals—if the house would not be visible to the public

at all. Instead the record makes clear that it was the

house’s visibility—especially the visibility of the International Style elements—that generated heated opposition. As another objector wrote, “[t]his excessively

dissimilar structure will be a monolithic presence on

this formerly tranquil beach.”

If there be any doubt about whether Burns’s design was intended to block his view of the beach and

the ocean, this provides still further reason why the

case should be remanded to the district court for basic

fact-finding. Even when we adjudicate constitutional

issues, we are still obliged to “draw all inferences and

review all evidence in the light most favorable to the

non-moving party.” Fort Lau

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