Public or Private Space? Line Blurs in Silver Spring

Py doesn't object to reasonable security measures; when county police stopped him to ask why he was taking pictures on the roof of a Wheaton parking garage at midnight, "I was cool with that -- they just checked me out, as they should, and they let me keep taking pictures."

But Peterson's motives go beyond security. "Like any business, Downtown Silver Spring's management maintains the right to approve any videotaping, filming or photography taking place on the property," Smith's statement reads. "It is in our best interest to understand how footage and photos are going to be used."

It might also be in the developer's best interest to understand whether I am going to spend money in their shops or I'm just taking a walk through downtown, but that doesn't give them the right to stop me to find out.

Public access to semipublic places is one of the most volatile issues in the law. While the U.S. Supreme Court has ruled that the right to free expression does not extend to a privately owned shopping center, the court also decided that company towns may not restrict the distribution of religious literature. And in a decision allowing union members to picket in a shopping center, the court said that right would be unquestionable "if the shopping-center premises were not privately owned but instead constituted the business area of a municipality."

Of course, that's the case on Ellsworth Drive, which appears to casual visitors as a public street.

In the end, Peterson granted Py permission to take pictures, which he posted on http://Flickr.com's D.C. neighborhoods page, where amateur photographers display area scenes.

"But you shouldn't have to go get permission to take pictures," Elrich says. "We created the downtown to be a public space, and it ought to be run like a public space."

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