December 8, 2021
By Timothy Sandefur
“Lawyers make the poorest building experts on earth.”
That’s what Frank Lloyd Wright thought—and he had good reason. In 1940, Wright was hired to build the Community Christian Church in Kansas City, Missouri—only to find city bureaucrats standing in his way at every turn. Withholding necessary permits and incessantly demanding changes and unnecessary tests, the bureaucrats harassed him so much that he finally walked away from the project. Today, as one expert notes, the church bears “little resemblance to Wright’s original drawings.”
But such meddling pales in comparison to the arbitrary and unpredictable standards local governments impose nowadays, under the regulatory system known as “architectural design review.” Design review lets city officials deny building permits, not because a building is unsafe or an environmental danger, but simply because they don’t like the way it looks—thus violating both private property rights and freedom of speech. It’s just another example of how vague licensing laws intrude on constitutional freedom.
In a brief filed in the Supreme Court today, the Goldwater Institute and the Cato Institute argue that architecture is an art form that, like sculpture and painting, deserves First Amendment protection—and when government exploits vague permit standards to censor free expression, that’s unconstitutional.
As we’ve noted before, licensing laws and permit requirements are often astounding vague. In one neighborhood of Boulder, Colorado, for example, new construction is prohibited unless it is “an expression of its own time”—whatever that means. In Mesa, Arizona, buildings must “create a distinctive and appealing community” and have “adequate design features to create visual variety and interest.” And other licensing laws are even worse. To obtain a firearm to defend yourself in New York, you must have “proper cause.” To get a liquor license in Sylvan Lake, Michigan, you have to prove you have a good “general business reputation.” To run a moving company in Nevada, you must convince bureaucrats that a new business would “foster sound economic conditions.” What do these terms mean? Whatever the government says they mean.
But the situation is particularly bad with design review, which often uses standards so amorphous that homeowners and homebuilders can’t know what is and isn’t allowed. That vagueness violates their freedom of speech as well as their property rights. When Donald Burns submitted a plan to tear down his Spanish Colonial Style house in Palm Beach, Florida, and replace it with a modern International Style house, instead, local officials said no—just because they don’t like International Style architecture. But that style means a lot to Burns. He had it designed that way because as (in his words) “a means of communication and expression of the person inside: Me.” The building is no eyesore—it’s a large, square, modern house—but just in case anyone might be bothered, he planned to build a wall and plant shrubs between it and the street.
Nevertheless, bureaucrats said no, objecting to its “appearance of mass” and the fact that it wasn’t sufficiently “compatible” with other houses in the area.
Burns sued, and in a 2-1 decision, the Eleventh Circuit Court of Appeals declared that because the house would be concealed from the street by shrubs and a wall, it therefore couldn’t communicate to people, and therefore it couldn’t possibly be artistic expression under the First Amendment. But as we argue in our brief, that makes no sense. For one thing, Burns will have houseguests, who can observe the house. What’s more, architecture expresses itself to the person who lives in the house, not just to the public. If Burns made a sculpture for his own enjoyment (as Bernini did) or wrote a poem for his own enjoyment (as Allen Ginsberg did), those would certainly be constitutionally protected speech—so why not architecture?
An architect’s job, said Frank Lloyd Wright, is to “make of a dwelling place a complete work of art…lending itself freely and suitably to the individual needs of the dwellers, a harmonious entity, fitting in color, pattern, and nature the utilities, and in itself really an expression of them in character—this is the modern American opportunity.” Citing dozens of examples—from Thorncrown Chapel to Fallingwater to the Tail o’ the Pup—our brief explains why the First Amendment must protect the freedom of expression inherent in architecture.
Reflecting on the way his Kansas City church turned into “a row between K.C. lawyers and the K.C. building commission,” Frank Lloyd Wright commented in his autobiography that “lawyers make the poorest building-experts on earth.” But it turns out that bureaucrats are even worse.
The Supreme Court long ago said that licensing laws and permit requirements are unconstitutional if they don’t provide three “procedural safeguards”: They must be clearly written so people know what’s allowed and not allowed; they must include deadlines so applicants know when they’ll get an answer; and they must give people a chance to have a hearing before a neutral judge if they’re wrongly denied a permit. Yet state and local governments routinely ignore these requirements, imposing vague, incomprehensible, and totally subjective restrictions on permits. That stifles free expression, restricts economic growth, and violates the fundamental right of private property.
Timothy Sandefur is the Vice President for Litigation at the Goldwater Institute.