The Supreme Court has made clear that the First Amendment protects not only traditional forms of expression like speeches and newspaper editorials, but also art forms like painting and dance—and even protects the right not to speak at all. Yet courts have so far failed to apply that protection in one vital area of artistic expression: architecture. Communities across the country routinely impose arbitrary and subjective architectural restrictions, restrictions that violate not only free speech, but also basic due process protections.

When Florida property owner Donald Burns submitted plans to replace his Spanish Colonial Style house with a modern, International Style house, local officials refused to grant him a permit, simply because his planned design failed to satisfy the town’s requirements that homes reflect a “diversity of design that is complimentary with the size and massing of adjacent properties” or “achieve a pleasant and comprehensive cohesiveness.” What these terms mean is essentially anybody’s guess—which is typical of “design review” ordinances that often allow bureaucrats to impose their personal aesthetic tastes.

Burns argued that the design of his proposed house would be “a means of communication and expression of the person inside: Me.” The modernistic International Style he chose emphasizes simplicity and openness, which he found personally expressive. But the Eleventh Circuit Court of Appeals ruled that because a wall and tall plants would block the view of the house by pedestrians, Burns’s house could not communicate a message to them—and thus was not protected by the First Amendment.

Burns has asked the Supreme Court to take his case. Cato has joined the Goldwater Institute on an amicus brief to argue that not only is architecture an art form protected by the First Amendment, but that the lack of communicative intent cannot deprive expression of constitutional security. Other forms of expression—keeping a diary, for example, or simply refusing to speak—are covered by the First Amendment even though they do not communicate to other people.

What’s more, subjective licensing restrictions violate existing precedent regarding due process, which holds that any time the government requires a permit for an activity protected by the Constitution—whether it be free speech, the right to own a firearm, or the right to earn a living—three “procedural safeguards” must apply: (1) the criteria must be clear and unambiguous, (2) there must be a specific deadline by which the permitting decision is made, and (3) the applicant must have a right to a hearing before a neutral judge if the permit is denied. Yet local governments—including Palm Beach here—routinely ignore these rules and impose vaguely worded licensing requirements such as “good cause,” or provide applicants with no specific deadline within which they will get an answer.

We urge the Court to take this case to ensure that these three safeguards are applied across the board to all permit and licensing schemes—and to confirm First Amendment protection for one of our greatest art forms.

The Court will decide whether to take up Burns v. Town of Palm Beach early in the new year.