donald burns now this week i've been telling people that my argument today would be about architecture as free speech but now that i'm in court i'd like to be more precise the issue is that the district court or by using the wrong test an unprecedented test to hold up the town of palm beach did not infringe on burns's st amendment rights when it rejected his custom designed architectural plans for a new home and a modern style to replace existing traditional home as an expression of his persona his philosophy to show he was not tied to the past when the town did so only based on its subjective determination that the design was dissimilar to neighboring properties quote not in harmony and of quote the district court heard by and grafting a predominantly purpose predominant purpose  circuit commercial merchandise case onto the expressive conduct test adopted by the united states supreme court in tests as versus johnson and which is further been explained by this court and the holman decision now this was an error for two reasons at least two reasons st off the johnson test already addresses the situation where there is both expressive and non expressive elements when those are combined and also this case does not involve commercial merchandise it is also only a personal non commercial expression now turning to the question of what do you do when you have both speech and non speech elements combined in the same situation now in johnson the court it was speaking of the the lesser standard that applies when the government has an interest and anon in regulating a non speech element and the court said that although we recognize that where quote speech and non speech elements are combined in the same course of conduct a sufficiently important governmental interest in regulating the non speech element can justify incidental limitations on st amendment freedoms but it goes on to say we have a limited applicability of that more lenient standard that o'brien standard to those cases in which the governmental interest unrelated to the suppression of free expression in stating moreover that o'bryant test in the last analysis is little if any different from the standard applied that time place or manner restrictions in in other words it's ok to regulate non expressive conduct even though it may have incidental impact on speech but it does the regulation has to be unconnected to the expression now the preliminary question of course is whether there is expressive conduct and this is where the district court went wrong now johnson set out to toughen it so that in deciding whether a particular conduct possesses sufficient communicative elements to bring the st amendment and to play we've asked whether and sensitive they have particularized message was present and whether the likelihood was right that the message would be understood by those who viewed it and  column and case this court further explained because it explains it it's not it's not necessary that an observer understand the particular message that was  just go over a few of the factors and then ask you about how does apply here to fort look at the fact that they were able and literature set up at the event such that they were giving it to other people at this meal but they were serving to point out the homeless problem that th group invited all other people in the neighborhood to come everyone was invited to come and share and meal that it would happen in a city park and that it was an issue of concern to the community and if there'd been a long history of the group doing this activity all of those house on the ocean well actually because we're talking about architecture i believe that the subject matter here is even more close to pure speech than you would have where you've got a statement being made through the conduct of serving the homeless serving meals to make a statement about the homeless but let me point out that this district court the magistrate judge initially recognizes us to court adopted either from the beach the water or from the road the road it was pretty much hard to see because the last plan had it pretty heavily wooded with trees and and the like wasn't visible from the beach yes absolutely your honor and if you look at the modeling that was submitted through document forty facing the beach yes rondo's the the house is quite visible from the beach it's also visible through the gates to the and from to the house from the street so it is it is visible so it's not just a city park is this in the middle of you know i know there are some places in palm beach better that are very sort of visible in public and then there's streets that are sort of three back from the main road if this is the equivalent of the city park or is i i'm sorry i thought i heard just a nd let me check on the time missed daniel is it your view that what we ought to do in this case is rule that the judge applies the wrong test and that he ought to have applied johnson and how him and rather than sensually the nd circuit test and remand for him to apply the test or is it your view that we actually ought to be doing the application in the st instance of johnson and how to the the two factor test at a minimum your honor you should reverse because the test is the the government would have to show compelling governmental interest which we can't do here because sped it under our law is not a compelling short and center and i was sure the short answer to my question is you would have us make the at your notes when you come back up on the thought of judge clients asked you a question that i think is really important as a matter of fact he was asking whether if you look at the rendering that you submitted most recently as exhibit a the demonstrative exhibit whether that is facing the beach and there was a nd item that you had submitted with the materials that we could find in the record that was called the east ocean perspective is that the same view just from a wider angle i just want to make sure that this space is the beach what i'm looking at it right now so i can say that you know whether they're it's the front of the house or the back of the house i mean obviously there's not a driveway but the house is what i said at the at the front of the picture is the beach side decision of any court anywhere holding this st amendment strict scrutiny applies to zoning decisions any did zone the decision of any other than their church as there is metromedia decision from the united states supreme court that was the san diego decision involving billboards where there was a amendment claim no court has ever held that a home is pure speech or otherwise protection a concession and mr burns offers no reason why this court should be the st to do so the district court properly considered the cont is no st amendment express of interest in a piece of architecture for residential home that is a matter of law there can be no st amendment as a matter of law it would depend on the architecture your honor and so what the supreme court is looking for is mediums of expression they begin with the written and spoken word and they go on to things like visual art like paintings photographs and sculptures now could we conceive of a circumstance where a gothic cathedral that's exist for hundreds of years nurtured for example or even something like the white house which is let's take something like a a piece of architecture for residential hall designed by built by frank lloyd wright would that have any an abstract matter could there be any person limit protection for that or is it your view in the residential area if the zoning said no that's the end of the story there is no st amendment express or bright period end of story in the residential area my view in the residential context is probably not it would probably not be protected and that's because as judge a lot pointed out with this court considering in fort lauderdale food not bombs factors such as the historic symbolism of the object are critical and there and for the for lauderdale case this court observed that the sharing of food as a means of communicating dates back millennia if the court said recognized in society had recognized that homes are mediums of expression you know this republic folks have lived in homes for two hundred and forty years yet we find not a single case that has ever recognized a st amendment rights protected by strict scrutiny and there are a landmark ordinances historic preservation ordinances throughout this country and what the re asonable observer expects when it comes in contact with the home whether designed by frank lloyd wright or by the designer mr burns changes is that it's a house house is a house it's something to provide asked this court to consider because i think three points are right is number one as chief judge curran's observed this house would not be visible from the public you have to ask yourself what if anything does a reasonable reasonable observer see when you mr when viewing this time the photo that you're provided it's a bird's eye view showing that the only unobstructed view of this home is from somewhere out over the water the home is set back from the water and it's covered on the north south and we can even see the trees poking up above the structure on the west property line such that if this house is designed to send a message it's clearly pointing the wrong it be visible to anybody walking along the beach on the beach side of the house sure i mean pieces in florida are public and so if someone should happen to walk along public beach and so there would be some folks who could view this house from the ocean or from the beach but i think the nd point that the photograph makes is that if we assume a reasonable observer could get onto the beach or get over the hedges that separates this house from its neighbors there's still no great likelihood that any passer by would understand it to be communicating anything this court is recognised as has the supreme court the context matters and never has the exterior facade of a home been understood to be a medium by which its residents communicate with the outside world there's just no historical or societal context to believe that any house that you might come across is designed was precisely because it was visible and it was an eyesore to anybody in the area not that it was hidden but that it was obvious that it was massive that it was excessively dissimilar but that totally could happen if the were visible and visible to from the street or from the beach or from the water have i misunderstood what's happening here well i think your honor  you credit mr burns and his intent which he saying i'm intending by this time to be sending a message that i am different he claims that he intended to send a message that he is more simple and desir your possessions despite the fact that this house is twice the size of the house that existed before and significantly larger than its neighbors i'd respectfully submit that his architectural design preferences that would flow from if we were to apply the johnson test the nd prong and that is whether the house was otherwise visible to the public from the beach from the water and beyond and when i looked at the objections from the neighbors which before the the record the st one was the obvious lack of harmony with its neighbor visible to the public and adjoining property owners the  one with regard to the view from the beach in the water it will mar the ambience and the view the rd one this house will be directly reviewed viewed from a popular public beach access by the  if i were walking on the beach or sailing by here you've got something that clearly doesn't match the others is clear from this record that it was visible and that it was precisely because it was com turned this house down because it was excessively dissimilar from the houses within the two hundred foot radius but that doesn't satisfy that doesn't get us to the nd prong even of the johnson test without adding the predominant purpose element because johnson requires that there be a great likelihood that a reasonable person observing the south and its surrounding circumstances understand it to be sending them on that edge and a message of difference cannot be sufficient because the guiding principle on which all of our study group regulations are based by their nature can tell some level of uniformity and co individual differences and beliefs as to what is beautiful and they do that in the name of promoting notions of widespread beauty harmony and residential character and courts for years have upheld such regulations as promoting the general welfare of the entire community to reverse the district court on the st and then they claim with on several years of precedent in this area south any basis there hasn't been any radical societal jurisprudence jurisprudential change a house is still just a house and of course they're still not expected to and do not communicate messages it's not the difference that the her the hurly the supreme court surely noted marching to get from point a to b is not protected but marching to make a point for a purpose and there i think you see what the district court correctly added this predominant purpose element to the test which i'm not saying unprecedented it's merely a subset of the context analysis that this court and the supreme court have applied in the expressive conduct cases but this is it's not as if you're surrounding a corner and coming into the rose garden that looks like the american flag and that has signage that says american flag  back to the nature in which this would upset is the myth that it's entirely improper for mr burns to effectively argue that he can flout the towns properly formulated is that a greg elations and then turn around and claim the protection of the  residents are going to live in it so mr burns in his declaration says that he purchased this traditional style home that's currently on the lot because it represented his internal philosophy of formalism and tradition but since and thirteen he's been living in that same house yet he concedes it no longer reflects that personal philosophy and so it no longer if it ever could send a message it certainly hasn't been sending the message he wants it to be sending since two thousand and thirteen and so this house needs to stand without burns and i suggest that the supreme court's decision and fair is important here because we need some explanatory conduct or explanatory speech to understand if this house is sending us any kind of message and without mr burns declaration without him living in the house without the neighbors and the general top story by knowing that the speaker he's the person who lives there and what he's trying to say certainly we don't need to particularize message but we need something far mor here a couple of things struck st i think it is accurate that the proposed building met all of the setback lock coverage square footage and high standard foot high of the existing residents boroughs had the height of the mediately adjacent homes were forty seven sixty five and thirty eight thirty eight feet the proposed code would cover twenty one  seventy four percent of the lot which was within the twenty five percent and the total square footage was still within what was permitted at least that i have that right yes i believe ok let me ask you just as a final question clearly in the record understood what those meant and hear you not only have that that you have a specially qualified are come group of our com members that are specially qualified by training and experience and legislatively mandated in the town code these are expert members of our comm applying it and you also have the guidelines that are common unseated and i'd submit finally that mr chase mr  burns expert architect clearly understood and repeatedly says that none of these none of these criteria relate to architectural style thank you very much  pretty much every zoning ordinance in residential areas around the country and opening up to attack on st amendment grounds any time the local board of architects or whoever had the authority to decide these zoning issues the whole question of a statics and what they have to face a st amendment fight in if you're talking about they have to say everything is under forty feet tall suppose along comes mr burns cousin and says i love tall houses i like t everything i like to look down on the earth that's part of my internal philosophy and i'm going to build a house that's forty five the tall that is his message and that would according to you give him  amendment expression protection to the extent this strict scrutiny test would it not well again it depends on you know whether there are across the board restrictions on height content there's no on content that you look at what it looks like you look at what is contained in the building and if you hook it to a message every house that does the government still has to narrowly draw it has to have an interest that's more than just expressed in the general as statics term it has to show that it's governmental interest is narrowly tailored and here we've got they're a couple of things here that have to be narrowly drawn in order to number one make it clear to an observer a person to understand what's meant and number two it also has to prevent arbitrary bug or you've got a boat or attack the primary one here which is the st and then if somebody is walking on that beach why would it be overwhelmingly apparent that person was there from new that walking on the beach look up at that house why would it be overwhelmingly apparent to that person that the house was intended to and does send a message sent i think the test is whether a reasonable person would interpret it as some sort of message not necessarily answering a specific message and at least some people would at least some people understand that this was an artistic creative  in any residential area that it was sending a very powerful message and one that was profoundly different from the architecture that preceded it and the architecture chronologically that followed it has a powerful zoning interest in maintaining a certain aesthetic look this goes be beyond the height necessarily or the square footage of the set off but there's a look it can't go higher than six stories and part of the beauty of the city in here is in the the harmonious nature of the architecture if i walk the streets of coral gables the there's no question that the city of coral gables imposes all kinds of a static limitations can't the town of the beach impose in a static limitation of this car even though it is honor i i think it goes to the question of whether they can you know whether they have objective lee and whether they have objective criteria know when the district court cited the static and trust i started looking at those cases they involve commercial speech over and over and over again the ones that i was seeing and not residential  i question to you and judge carnes this question to you is precisely focused on a residential community cannot that community maintain a certain look we want their homes we want colonial homes we want mid century modern homes in the look of lloyd wright whatever couldn't they say this is what we want and we're not going to allow you to build a h my answer you know i agree with you that there are limits the questions that we're proposing is whether those limits needing that you can as an aesthetic matter create a certain kind of look architecturally in without finding someone some some neutral basis for example there are guidelines that are neutral i think that when you have historically the secretary of interior has some guidelines that are  in which he led lived could be the town turn around and say that the architects turn around and say no way even though it met the several of requirements the height requirements the square footage requirements could they say you're not putting up with geo done for dole and they say that consistent with the st amendment and these rules i think that the st amendment  need for freedom of expression would inhibit the way in which a town could prohibit that type of expression if if there are if there are some objective criteria that can be in place i think that would be a legitimate regulation i think where it's just a matter of subjective and it would arguably upset owning regs in many many communities in this circuit and in the country i will concede it with this one and i know you want me to i know my time is up  i will concede that it would be novel but the one thing i want to add to that to the court is that the other side likewise has not cited a single case of holding a restriction like this on residential residence noncommercial speech on a reservoir where there was custom designed architecture intended to and perceived by some as expressing a message an last of our cases this week so we will a