The Eleventh Circuit ruled that a town could prevent an owner from building a home that had an architectural design out of keeping with surrounding homes. Burns v. Town of Palm Beach, 2021 WL 2325300 (11th Cir. 2021). The owner hoped to demolish his home and build one more than twice as large in a midcentury modern style rather than the typical Palm Beach beachfront house style. The town zoning laws had created an architectural review commission empowered to regulate the architectural style of homes to achieve a coherent and beautiful neighborhood environment free from large deviations. Because Palm Beach is a tourist destination, the town has an interest in preserving what makes the town attractive to visitors. When the commission rejected the proposed plans, the owner sued claiming that the design expressed his commitment to a simpler lifestyle with fewer possessions and that the town's prohibition on his design infringed on his freedom of speech.
The Eleventh Circuit rejected his claim in a split decision with a dissenting opinion. The majority held that aesthetic zoning is legitimate and not arbitrary; the goal of creating "beauty" and a beautiful environment is a legitimate government interest, so aesthetic zoning does not violate the due process clause. It rejected his claim of expressive freedom because the house could not be seen from the street and thus could not convey any message. The court did not hold that aesthetic zoning can never be a violation of the first amendment, just that it could not be so in this case. A vigorous dissent found the design to be expressive and argued that government regulation of aesthetics of private homes is a violation of the first amendment.
As new federal judges bring changes to court interpretation of the first amendment, more such cases are likely to arise and the existence of the dissent is likely to promote even more litigation on these questions.