Private Interests Shouldn't Govern Our Streets

In downtown Silver Spring, public and private collide.
In downtown Silver Spring, public and private collide. (By Chip Py)
By Raw Fisherfrom Marc Fisher's Blog
Tuesday, July 3, 2007

Chip Py's run-in with the picture police of downtown Silver Spring has morphed into a good old American fight for the right to express oneself.

Py, a Silver Spring resident, discovered last month that what looks and feels like any old public downtown is in reality a private, if roofless, shopping mall where private security guards can and will stop you from taking pictures just because the developer feels like exercising its control jones. Now, amateur photographers from all around the region have decided that they, too, can flex their muscles, and they plan to gather on Ellsworth Drive on the Fourth of July to demonstrate their right to take photographs in a public setting.

But as the Free Our Streets movement gathered steam, the developer opened up an escape valve. The Peterson Cos., the developer that took advantage of $100 million in generous taxpayer support to get its lovely downtown retail strip going, has offered a policy change:

"We welcome photography, videography and other filming at our Center," the company announced. "We permit all of these activities, as long as our patrons and tenants are neither harassed nor photographed or filmed over their objection."

Despite Peterson's plan to put up a "Welcome Photographers" banner tomorrow, the reality is that the company is in no way conceding that the street is open to the public in any meaningful way.

In the new policy, the company says it "reserves the right to modify this and other policies," and Peterson still insists that Ellsworth Drive is private property, a shopping mall without a roof.

In fact, however, the property is very much public -- owned by Montgomery County, though the county ceded control of the property to the developer, who is in charge of maintenance and regulation of the downtown. That's where this gets tricky.

In a splendid review of the law's failed attempts to grapple with public access to semipublic spaces, Washington lawyer Jason Levine, in the University of Memphis Law Review, notes that the very definition of public space has become muddled. Are we talking about space that is owned by the public, space that is open to the public, or does public space consist of any space between private spaces?

It matters, because the law is stuck in a very old place, where there was just private and public, while reality has turned many places that were once municipal into places that are now commercial, creating real conflicts between developers and people. As Levine writes: "Our town squares have become shopping malls. Our open neighborhoods have become gated communities. Our public basketball courts have become private health clubs."

The whole trend is a recipe for conflict. I've written about suburban residents who were told they could not put a sign for a political candidate on their own lawn, because the developer's rules forbade it. And I've written about attempts by shopping center owners to prevent political or religious speech on their property. The Silver Spring case is an especially vexing one because the downtown appears to any outsider to be a purely public place.

"If all public space is privately owned, where will the marketplace of ideas exist?" Levine asks. He argues that it's time for the law to recognize this shift in how we live and clear the way for freedom of expression even in places that the law views, all too narrowly, as private.

"Society is at risk of losing all space in which to conduct face-to-face public discourse if no toll is exacted on private property owners for the unfettered access they now have to hawk their goods to the populace," Levine writes.

"Streets are as old as civilization," he notes, "and more than any other human artifact have come to symbolize public life, with all its human contact, conflict and tolerance." What makes downtown Silver Spring any different from Times Square or M Street in Georgetown in its function as a gathering space?

The courts are starting to see the light on this. In Las Vegas in 2003, a federal appeals court struck down a law that severely restricted First Amendment rights at a publicly owned, privately operated pedestrian mall called the "Fremont Street Experience." That place, remarkably similar to downtown Silver Spring, was designed to renew downtown Vegas, but despite the city's attempt to privatize the space, the court ruled that the law must allow people who visit there the same rights and access that a purely public space would afford.

That's what has to happen in Silver Spring. The gathering on the Fourth is just the first step in that direction.

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