Developer Can't Ban Photos, Leggett Says

County Executive Isiah Leggett weighed in on the debate over the protection of civil liberties in public-private space yesterday with a letter telling the developers of downtown Silver Spring that they cannot prevent people from taking pictures in public areas.

"The County considers Ellsworth to be a public forum permitting the free and unfettered exercise of First Amendment rights," Leggett (D) said in the letter to PFA Silver Spring LC and the Peterson Companies.

A dispute over security vs. public access erupted after Chip Py, an amateur photographer, was stopped in June by a security guard while taking pictures on Ellsworth Drive in the heart of downtown and was told he needed permission. The developers had argued that the public's rights are limited as they would be in a "shopping mall without a roof," for security and business interests. A vocal group of photographers and others strongly disagreed, demanding their full rights in a space that was renovated with public money.

After about two weeks of outcry, the developers revised the policy to allow photography without their explicit approval, while reserving the right to modify it.

In doing so, they missed the point, Py said. About 140 people unsatisfied with the concession protested July 4, marching down Ellsworth Drive and taking pictures.

Leggett said he agrees with the protesters. The developer cannot reserve the right to limit freedoms guaranteed by the Constitution, he said. Although the county recognizes the developers' need to "maintain order and promote the safety, security and economic success of the Downtown Silver Spring Project . . . these rights do not change the character of Ellsworth Drive as a public forum," Leggett wrote in his letter.

The night before the letter was sent, Py asked Leggett during a town hall meeting in Silver Spring why, apart from County Council member Marc Elrich (D-At Large), "I've not heard from any of our elected officials how this cannot be public space when it was built with public money."

Leggett told him he was waiting for a response from his attorney to review case law before he made an announcement. The next day, the letter was sent.

"From my perspective, I didn't think they had the right to do what they were doing, but I wanted to make sure we were on a good legal footing," Leggett said yesterday.

I.J. Hudson of Garson Claxton, the Bethesda-based law firm working with the developers, said yesterday that they began to review and modify their regulations based on the concerns several weeks ago.

"We anticipate the review will be completed soon and modified rules issued, which will meet both the developers' obligations to the county and the needs of the entire community, including the First Amendment rights of our patrons and other visitors," he said. "We've been consistent. We said we'd review the photography policy, and we changed it. . . . The same is true with our further reviews. We will do the right thing."

Py said he welcomed Leggett's position but was hesitant to declare a victory.

"It's not over until the Petersons agree to it, but I feel like this is a welcome step in that direction," he said. "The 139 people who came out on the Fourth will be very pleased that our county executive has responded to this in a positive manner."