First Amendment arguments rejected in mansion fight
young pretty woman feeling cross, angry, annoyed, disappointed or displeased, showing thumbs down with a serious look with a house model

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Appellate judges sparred about and First Amendment issues ranging from tattoos to Monticello.

A lot of people want to make statements with their homes.

But a sharply divided federal appeals court Tuesday rejected arguments that a property owner’s First Amendment rights were violated when plans for a mansion were rejected in tony Palm Beach.

The 2-1 decision by a panel of the 11th U.S. Circuit Court of Appeals stemmed from a 2013 decision by longtime Palm Beach resident Donald Burns to tear down a 10,063 square-foot oceanfront home and replace it with a larger mansion with a “mid-century modern design,” according to the ruling.

“According to Burns, the mid-century 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,” the ruling said. “It also communicated Burns’ message that he was unique and different from his neighbors.”

But Palm Beach’s architectural review commission rejected the plan in 2016, spurring Burns to take the dispute to federal court. He argued, in part, that the rejection violated his First Amendment rights.

A federal district judge sided with the town, prompting Burns to go to the Atlanta-based appeals court. And in a 70-page majority opinion and a 66-page dissent, appellate judges Tuesday sparred about Burns’ claims and First Amendment issues ranging from tattoos to Jefferson’s Monticello home.

Judge Robert Luck, in a majority opinion shared by Judge Ed Carnes, wrote that the proposed mansion was not “expressive conduct protected by the First Amendment” and pointed to issues such as a wall and landscaping that would have blocked the home from public view.

“One day, we may even find some residential architecture to be expressive conduct,” Luck wrote. “But Burns’ proposed new mansion is not Monticello or Versailles, no matter how much the dissenting opinion wants to compare it to those historic homes. It’s just a really big beachfront house that can’t be seen, located on a quiet residential street in Palm Beach, Florida.”

But dissenting Judge Stanley Marcus referred to numerous famous architectural sites and drew contrasts with court precedents about protecting the First Amendment.

“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,” Marcus wrote. “An analysis of this kind would yield the odd conclusion that a tourist’s drunkenly obtained tattoo is art protected by the First Amendment, 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, Monticello is not; anodyne elevator music is protected, the Empire State Building is not. These distinctions seem to me to be indefensible.”

That statement drew a retort from Luck.

“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,” Luck wrote. “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 (a test in a U.S. Supreme Court case known as Texas v. Johnson) but elevator music does. Not at all.”

Marcus also asserted that the architectural review commission “hated” the proposed design of the mansion.

“The question in this case is whether a government commission created by the Town of Palm Beach with the Orwellian moniker ‘ARCOM’ may prevent Burns from expressing his philosophy and taste through the architecture of his home and create a work of art on land he owns solely because a majority of the members of the commission do not like the way it looks,” Marcus wrote.

That also drew a retort from Luck in a footnote.

“The dissenting opinion uses the name ‘ARCOM’ for the architectural review commission and then calls the name it uses ‘Orwellian,’” the footnote said. “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.”

The Palm Beach Daily News, citing a deed, reported in October that Burns, a telecommunications entrepreneur, sold his home for $28 million. That came six months after the appeals court heard arguments in the case, and Tuesday’s ruling did not address a sale of the property.

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Republished with permission from News Service of Florida.

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