Architecture and the First Amendment Before the Supreme Court

This is what I wrote in June. Burns v. Town of Palm Beach. The case raised a persistent conflict between property law and constitutional laws: Is architectural design protected under the First Amendment? An Eleventh Circuit panel split rejected the argument that architectural designs would be protected speech.

Burns now has a cert petition. The cert petition prevents another question in land-use litigation.

The Town of Palm Beach denied Burns’s request for his new home design, based only on aesthetics. However, the design was in compliance with all objective zoning criteria.

These are the brief exchanges that were reported from Masterpiece Cakeshop Oral arguments I’d forgotten to mention. Justice Alito and Breyer asked about the relation between architecture and the First Amendment.

JUSTICE ALTO – What do you think about architectural designs? Does that make it entitled to First Amendment protection? One might argue that the main purpose of building design is to provide a space where people live and work.

JUSTICEBREYER That — I must admit, it really baffles me.

Goldwater Institute, Cato Institute filed amicus briefs that offer three procedural safeguards.

According to the Court, a government may require a person to get a permit for them to exercise their “freedoms guaranteed by the Constitution.” There are three safeguards that must be met: (1) The criteria to apply must be unambiguous; (2) A deadline must be set within which they will be answered and (3) If she feels that the permit denial is unfair, the applicant must be allowed to appeal to a neutral judge.

On January 24, the town will have to give its brief.