it would seem that your second question is the answer to your first.

unless it is specifically protected, it can have 'whatever' limitations placed upon that lawmakers wish.

why 'freedom to build' wasn't in the 1st amendment is an interesting question. i suppose it has to do with the fact that freedom from religious persecution and those items necessary for successful democratic governance (freedom of the press, assembly, free speech) don't seem to rely upon architectural style.

Does a website called something like "lawyer-inect" exist? That would be a great place to ask these questions, and they might even have fun with it. Here you'll no doubt get a smattering of stories related from experience people have had with specific cases, but little overview of the actual conceptual basis of the law.

You know when Cokie Roberts does her Supreme Court decision wrap-ups? I love those.

why would architecture have first amendment protection? is architecture speech, or is it an artifact that becomes part of a larger shared environment?

most of the time there is regulation of architecture it has to do with either safety or a level of consensus on the part of some segment of the public who are affected by the architecture.

there are also legal distinctions between the forms that these artifacts take and their content. defining content is very tricky...

as an example: signs. sign regulations can describe allowable sizes, materials, and locations of signs, but they can't describe or limit the content. legally, regulations have to be 'content neutral' because of the first amendment. a public committee can spend months discussing the implications of 'content neutral' for signs in determining what regulations can and can't say.

does a building design have content in the same way a sign does? can you imagine having the same kind of debate over the 'content neutrality' of a building?

so the flip side is this: if there were no regulations, would it be ok if any body that wanted to build anything at all could do that? except for requirements that they meet life safety codes (which, in some cases, could also be considered infringements of speech, if you propose to use a very broad definition), there are some places which have been pretty hands-off with zoning and regulation of any kind.

houston, for example. and, honestly, for houston, it seems to have worked. there are plenty of people who don't want to live there because of the disorderliness of what has been built but, because variety is the rule there rather than the exception, it has made houston a unique community.

would lack of zoning and regulation work everywhere? i doubt it. it's not hard to get people to get together and build consensus around what they DON'T want in their communities and, with critical mass, regulation follows.

el jeffe:

I am not talking about "freedom to build", I am referring to style. In fact, the style of building IS a religious issue, is it not? If one is not a Christian (for example) on what grounds can the government compel a style that the owner associates with Christian traditions and culture? Isn't style a personal preference, a sort of religious quality? Why should government regulate personal preference?

liberty bell:

I have engaged in discussions with some of the country's top constitutional scholars. One, a prominent teacher who clerked for Sandra Day O' Conner and whose work was recently cited in the Heller case, has told me that "architecture does not have the capacity to convey ideas...". Nude dancing and pornography, it seems, are more worthy. The Supreme Court building has the words "Equal Justice Under Law" inscribed under the pediment. In other words, the top legal minds are clueless. They can not distinguish between land, land use, and style because they do not have the training or experience that architects have. Or are supposed to have.

And how is it "democratic" for government to tell a homeowner that their own house must be painted this color or that or that the roof must slope and not be flat? That isn't democracy, it's authoritarianism.

Steven Ward:

The architecture does not become part of the built environment. The building - the 'sticks and bricks' - does, and I am not arguing that we should be allowed to build whatever we want. What is "unsafe" architecture? The idea is nonsense. Obviously, there are good reasons not to build dynamite factories next to preschools, but style and use are not the same things, as I have emphasized.

well, use really didn't have much to do with what i was asking. zoning and regulation bodies watch over use, sure, but they also are the arbiters of whether regulations about material use, height, mass, openings, etc are being met.

but now you've raised more sticky issues.

how can you possibly separate the 'sticks and bricks' from the architecture? is the architecture in fact like a sign - something you attach at the end? or is the configuration of the materials what makes architecture?

if you're talking about architecture as speech, you're talking about protecting potentially negative, controversial, or offensive speech. is designing to not meet life safety codes an example of this kind of provocative speech that you'd have the first amendment protect? that could result in 'unsafe' architecture... not nonsense.

is style speech? is there 'content'?

OK, well obviously we all believe that architecture DOES have the capacity to convey ideas. Quite stridently, sometimes.

But letters carved above a door are text, aka speech.

Interesting, though, that things labeled "obscene" that are not actual speech are still somehow lumped in with speech, no? Which makes one think that yes, style should be able to be regulated as "expression".

Also, I don't think "government" tells anyone what color or roof pitch they have to use. Neighborhood associations with ccr's do that. The closest government comes is telling people what they are NOT allowed to build, which is different. And nowhere close to authoritarianism.

But there I go, making the same uninformed speculation about laws that I warned you this post would elicit!

It is an interesting topic, eje, and I'm curious about it. Hopefully the discussion will continue by brighter minds than mine.

we are all Brights, just some don't know it yet.

Eje ... I think your statement that legal minds "can not distinguish between land, land use, and style because they do not have the training or experience that architects have" is overdetermined. There are plenty of instances when the Federal Government has issued opinions and/or laws that deal with style. And these things have been discussed in Public Hearings, etc that are a prelude to legislation.

Also, you have to understand that in order for an issue of style to be treated in Federal court, a justiciable "Federal Question" must be implicated.

The Heller case has nothing to do with the 1st Amendment, so I am not sure how you are using this example to your service.

Also, I think there are aspects of the Bill of Rights that have architectural ramifications. Especially the 3d Amendment, which deals with the quartering of troops. Also, some of the famous equal protection cases have had some type of architectural aspect (I've written about it, albeit in a cursory way, here).

Architecture is not protected "speech" under Constitutional law. "Congress shall make no law" ... Remember that the First Amendment is first and foremost a limitation on governmental power. This has been historically the case. It is the law. The limitation is not absolute, however. The Federal Government has the power to regulate architecture under its police powers ... and these powers extend to State governments as well. In addition, any enforcement or abrogation of an architectural style would not demand the same type of scrutiny that an equal rights or Bill of Rights case would. Issues of style do not merit the attention that issues of national origin, race, alienage, etc.

An example of how style could be brought about as a First Amendment issue would be in a hypothetical situation where a restrictive covenant is challenged. By restrictive covenants, I mean the legal instruments we associate with neighborhood associations ... as in "you can't paint polka dots on your house". That is a good example of a constraint that works on the stylistic as well as on the development realm. What if there were a case where neighborhood bylines said that you could not build anything with a flat roof (or vice versa, anything with a pitched roof).

Has there ever been widespread persecution of a whole population for their use of Architecture as their has been for religion?

How does architecture express ideas and desires more efficiently than speech?

It just seems that there are hundreds, thousands of activities and entities that could have been protected, but the Constitution covers the absolute basics.

Freedom to wear a raincoat. Freedom to keep your eyes closed. Freedom to hate your parents.

Freedom to eat isn't covered either.

Smokey,

A "restrictive covenant " is an agreement that you entered upon purchasing the land. it cannot be brought about as a first amendment issue because you willfully entered into the agreement. the 1st amendment and all of them for that matter exist to protect your rights, if you choose to willing give them up then you have no cause for complaint.

there are regulations based on local planning ordinances, though, that have similarities to covenants or deed restrictions in what they do, but they operate from a government agency review. owner is bound by these just like covenants or won't get a permit.

ex: http://www.louisvilleldc.org/C05/C05P06.asp

You still made the choice to purchase that piece of land, governed by that local ordinance. It’s a big difference, between that and the 1st amendment. The amendment only guaranties your rights so long as you do not willingly give it up. I had no choice to be born or to think. The first amendment grants the right to choice

Owning a home and building is a privilege not a right; in purchasing and building in a governed location you are submitting to the regulations of that location, it is the choice that you made even if your were ignorant of its implications.

This is a fascinating topic and, like LB, I would love to see some informed legal opinions expressed. I would take issue with the view that governments do not tell people what color or roof pitch to use. Oh my...there may be vast parts of the country where that is not true, but there are certainly plenty of areas where it is all too true. As a veteran of many presentations to, and battles with, various design review groups that were at least government sanctioned, if not outright government agencies, I can tell you that style and design dictates of the mostly uninformed are very alive and well. I know of entire towns that have codes requiring that all buildings, no matter what the function, be designed in a specific style (Cape Cod seems to be a favorite) and with a very specific selection of colors, roof pitches, materials, etc. Even the landscape choices are tightly governed. There are no CCR's, just local ordinance. I have seen national chain stores and restaurants bend to the rules of these places (sometimes for the good, but more often with ghastly results). I think this may have been what the original poster was getting at...the absolute control/mandate of aesthetic issues by a governmental or quasi-governmental body. It does happen.

I demur, Ledoux, just having recalled my trip to New Albany, Ohio, where Georgian is the required "style".

But this is not a requirement at the federal level, right?

Building construction is regulated by the police power ("the right of a government to make laws necessary for the health, morals, and welfare of the populace"). Over time (decades, centuries) what is included under that power has changed and expanded. This is a long and complicated cultural process (like the regulation of drug use, food production, trade, behavior, and most elements of life) whereby public policy is formulated via citizen complaints, lawsuits, proposed regulations, as well as press coverage and public debate.

This process varies, again, over time, but also by location. Houses in the countryside were not excessively regulated once upon a time, but buildings in the city were (due to their impacts on others.) Early regulations on urban buildings were minor (fireproofing, height limits), but gradually expanded as growth occurred and disasters happened (non-combustible materials, exiting, yard separations). All of these rules have been fought over, back and forth, between property owners, tenants, public officials, insurers, bankers, architects, engineers and planners. Remember: complicated. Few new regulations on construction pass into common practice uncontested. (Consider that Oregon voters recently passed a ballot proposition essentially overturning zoning rules in existence for decades.)

As cities have grown and gotten increasingly dense with both people and buildings, the extent of regulation has grown, too. Comparatively recently, in some places, architectural expression or "style" (roof line, fenestration, color, massing, detailing) is sometimes included in a jurisdiction’s power over construction, much as land use, building height, and minimum yards came to be controlled. In this, some courts have ruled that architectural expression in certain settings can be considered germane to the public welfare, as regulated by the public police power.

Tangentially, the private regulation (e.g., by property owners’ associations) of architectural expression has gone on much longer, and, while frequently resisted, has been less legally contentious than public regulation. This is because such comes under contractual terms of contracts between private parties. This is why racially restrictive covenants continued to be allowed in real estate transfers long after explicit race-based Jim Crow public policies were overturned.

Interesting subject…

Ack, wait...wrong usage of "demur" up there...what's the word I was looking for? What I meant was: you're right.

Oh, and regarding location: it's not just an urban/rural dichotomy that's at work, as some indicate above. Different parts of the world/nation/state/city have norms in place, and politicians in office, that affect the particulars of codes.

LB, I can't recall encountering such tight design control at the federal level, at least not as a codified and enforced set of requirements. I do think that specific federal client agencies often have relatively strong opinions about what the building should look like, but that is true of most clients and not quite the same as a government-mandated set of design rules.

Kanu ...

The 1st Amendment is not a guarantee of rights .... it is a limit of Congress' powers that applies to state actions via the due process clause. Only through court opinions and other types of statutory interpretation has there been a sense of what rights are "protected".

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

(note that the only time the word "right" is used is when invoking the assembly clause)

There is a huge difference between saying that the Constitution "guarantees" and that it "limits"

However, you are right that it is legally possible for you to bargain away "rights" the way you have described. Even if, there is a good chance that a court may not recognize the agreement because it is an unconscionable contract. But still, courts recognize the importance of being able to enter into agreements at will.

Concur. I beleive thats what you're looking for.

liberty bell

The first sign of a bright mind, I think, is to recognize one's own limitations - you fit the category.

I understand that certain activities are considered expressive speech - such as flag burning - but the idea that property could embody speech is only used in historic preservation cases. There, the expressive content is used by government authorities to justify the property owner's obligation to preserve the 'sticks and bricks' even though tearing down the 'sticks and bricks' does not damage the historic style.

So the government recognizes that architecture has artistic expressive content, but it reserves the authority to regulate that style to itself. Property owners, on the other hand, have no rights - NONE - to make the same claim. Yes, that is authoritarian.


Smokety

From what I can see, the biggest problem is that few people can really distinguish between a land use issue - which is legitimate for regulation - and one of style. That's the first problem. Take a brick arch. Should it be elliptical, round, gothic, or what? The shape of the curve does not "use land." It is independent of use. It is not part of the property. It's an expressive quality that reflects the aesthetic interest, via the architect, of the guy who is paying for it, the owner.

You're right in that the Heller case is not directly relevant. My point was that that top scholars don't have credible answers.

There are many cases that deal with style, and the reasoning of the judges is extremely poor. Inevitably, the arguments deal with money and due process, not speech. I would be very interested if you can direct me to cases where arguments of speech, such as symbolic expression, have been specifically addressed by the courts and rejected.

As I note above, the courts already acknowledge expressive, artistic qualities. It is like regulating music. In North Korea, you can be put in jail for singing the "wrong song". In the US, you can be jailed for constructing a building in the "wrong style."

Does anyone think this is a good idea? (Hmm.. Well, yes, apparently.)

The issues of style are really about power and authority, and that is *exactly* what the constitution is about. On what basis are aesthetics decided? Unelected local majorities can impose style on individuals for no reason at all. They can do it simply to assert authority. "We rule over you. We are your overlords. You do what we want, for no reason other than we want to control you." That's when this becomes an important constitutional issue, I think.

Zoning regulations that regulate style ARE LAWS that regulate speech.

gg

One might equally ask whether or not there has been widespread persecution of people who like to wear blue shirts or read comic books. Is that reason to justify governmental regulation of the color of our clothes or the inoffensive content of comics?

The first amendment is intended to protect individual freedoms from the authority of government. While there may not be widespread persecution against property owners for their choice of architectural style, this would not seem to justify government's imposing their symbols of authority.

Suppose you are of native descent. Your ancestors were slaughtered and raped by the conquistadors. Your local zoning ordinance requires your new house to be in the 'Spanish Missionary' style. Some like the style - it is very popular - but to you, it is a symbol of that which you find offensive and denigrating. Assuming you are allowed to build, why should the government not show some respect and let you build in another style?

kanu

I agree that one does not have an unrestricted right to the use of land. What I would argue is that where one is permitted to build, restrictions on style are restrictions on speech. Architectural style is already protected by copyright; the difference is strictly one of medium.

This is one conversation I would love to take part in....but I can't. I have a project which is testing the limits of regulation over architecture based upon the First Amendment. Hopefully someday
I can shed additional light on this matter.

"In the US, you can be jailed for constructing a building in the "wrong style." "


Seems a little dramatic... any actual instances where this happend?

Not a legal scholar or architect, here. Just a homeowner who is being sued by the HOA because my boulders are “oriented in the wrong direction.”
Yes… I did agree to the terms of my Neighborhood CCRs. NO, said CCRs make no claim or restriction on the orientation of anything in a landscape design. Let alone, boulders specifically. 
My detailed landscape plan was approved, and only AFTER project completion - when a neighbor who doesn’t like me complained - did the HOA even concern itself with the Boulder orientation. 

Many of my neighbors tell me that my landscaping is one of the nicest of the 500 uniquely different homes in the neighborhood.

I am an Astronomer, and I oriented the boulders in a manner that aligns with the North Star, while looking natural, as if “unearthed” by glacial action. 
It seems that - while it is nowhere written - the HOA prefers only boulders that oriented “naturally” as they would fall from the back of a lazy landscaper’s pickup truck: “Large Flat Side Down,” which are the verbatim words in the HOA’s law suit against me.

I oriented the boulders aligned with Polaris as an intentional form of expression.

I feel that my First Amendment t rights are being violated. 

Any opinion from the experts here?

Let's see some pictures of these boulders / a copy of the approved plan.  Is it drastically different from what was approved? Also, are they actually suing you or is that just hyperbole? Usually, to bring a suit you would need damage or something to sue for.  With HOA problems this takes the form of some fine they can assess by the ccr authority for noncompliance with some covenant. in your case not building to a plan approved by the architectural review committee or something like that.  Then after they have assessed fees, they can sue to collect the fees that have not been paid or lien on the property. It takes some time, especially in communities where HOA fees/dues are collected annually. Both remedies are going to take a fair amount of leg work that a concise reply of disagreement and making them aware that you will fight the issue can often resolve.  

Rule 1: Never live in an HOA community

Rule 2: There is no exception to Rule 1. 

If it’s not in the CC&Rs and they initially approved it you can probably ignore them.  I can’t imagine them being able to enforce something like that.  You should however build a landscape sculpture of Uranus to really test them.  

thanks to all for your opinions. b3tadine, though, is an aggressive jerkhole. I wasn’t ‘positing’ anything. Merely stated the facts, and ask for opinions from EXPERTS… You are clearly not included in that category.

Yes; As I stated in the summary of facts; I have received a lawsuit filed by the HOA in County Court (November 2019). NOT hyperbole.  Case still pending. Legal fees >$20k thus far.

Submitted plan was on 2D paper, and Boulder orientation in 3rd dimension was obviously not especially clear… ARC elected to NOT request any additional information. No elevation drawings or section views were requested, and the plan was formally approved without question. The plan was followed, with only minor/immaterial differences - due to existing tree root obstruction - related to the LOCATIONS only (not orientation) of some shrubs, and two of the boulders.  Locations are Mot under dispute, and we’re NOT listed as a violation in the lawsuit.

Thank you all (most of you, anyway) for your courteous and thoughtful perspective/opinion.

For the others, who are looking for a fight, please chat with someone else. I’ve no respect for your opinion, and no patience for your bullshit.

btw… Non Sequiter… while the tyrannical HOA members DO deserve a pair of fat middle fingers… and anything else the Universe might throw at them …it’s a bit more complicated than that. They filed a lawsuit without providing any prior notification. I know that they’re totally screwed when the judge sees how they have mobilized both HOA and county resources against me in their personal vendetta… but… thought that it would be great to hear the opinions of y’all experts on the topic. Thank you for your input. 

don't y'all love your tight-knitted american communities? 

So, your boulders were oriented in the wrong direction when you aligned them with Polaris even though the HOA approved the two-dimensional drawing? That's the problem: You should have given them a '5th Dimension" sketch: 

When the moon is in the Seventh House
And Jupiter aligns with Mars
Then peace will guide the planets
And love will steer the stars
This is the dawning of the Age of Aquarius

https://www.youtube.com/watch?...
 

“Boulders can be oriented however the fuck you want them to be oriented” 

-Thomas Jefferson 

OP has NO idea of what the First Amendment is or what protections it affords. Seriously, is this question meant o be funny?