Sunday, July 15, 2007; B06
THE DEVELOPERS who manage the heart of Silver Spring's vibrant new downtown have backed away from their silly stance discouraging some sorts of street photography and video-making there, even going so far recently as to put up a banner over Ellsworth Drive welcoming picture-taking. That's an encouraging step, or rather half step. By continuing to insist that the area is private property and therefore subject to such prohibitions and policies as they see fit, the developers misread both the legal arrangements and what should be the governing spirit of the place.
First, the law. The developers, the Peterson Cos., insist that Ellsworth Drive is the legal equivalent of a mall, in this case a roofless one. The Supreme Court has held that constitutional guarantees of free expression do not apply to privately owned shopping centers, and Montgomery County has granted the developers the exclusive right to oversee the project to safeguard its commercial success.
But as The Post's Marc Fisher has noted, Ellsworth Drive in fact remains a public street, albeit one under private management -- open to traffic, protected by the county's police and fire departments and integrated into the surrounding neighborhood. It was developed with the help of tens of millions of taxpayer dollars, and no posted signs alert pedestrians or motorists that they are leaving the county's jurisdiction. Unlike a privately owned mall, the street is not the developers' property; rather, it was leased to them. And while the terms of that lease allow the developers to impose "reasonable rules" necessary "to promote the safety, security and economic success" of downtown Silver Spring, that does not imply the abridgement of constitutional guarantees.
Nor should it. The developers say that political rallies and campaigning, petition-signing, leafleting and who knows what else are banned on the street (they have published no list). But since when are those sidewalk activities antithetical to the commercial vibrancy? Last we checked, Saks and Tiffany's were thriving in midtown Manhattan despite the petition-gatherers working Fifth Avenue.
The developers seem to imagine that pedestrians and shoppers on an open public street yearn for the same sterile environment offered by a standard mall, in which the vitality and spice of public space are kept at bay. A better posture would be a bias in favor of free expression and public-spiritedness, provided it does not interfere with others.
The dispute in Silver Spring reflects a broader one in a nation where private concerns are rapidly supplanting public space. The courts have rendered conflicting rulings that leave the lines and rules blurry in these public-private hybrids. In general the developers of downtown Silver Spring have done an exemplary job of reinvigorating what was a shabby area. They say they are reviewing their policies governing which activities are permitted on Ellsworth Drive, which is encouraging. Let them hew to tolerance as the governing principle.
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