County Opinion Rejects Photo Limits

Carla Thomas of Fairfax County sets up ornamental plants at the farmers market on Ellsworth Drive in Silver Spring. The Montgomery county attorney has written that developers cannot prohibit the taking of photos in the area. (By Rafael Crisostomo For The Washington Post)

Developers cannot prohibit people from taking photographs on public-private space in downtown Silver Spring, the Montgomery county attorney declared yesterday in a letter to County Executive Isiah Leggett.

In an eight-page letter, County Attorney Leon Rodriguez said that the street in question, Ellsworth Drive, "constitutes a public forum" and that the First Amendment's protection of free speech applies there.

The "publication, dissemination and display of photographs have long been recognized as protected speech" under the Constitution, Rodriguez wrote.

"Although the courts have not definitively resolved the issue of whether the taking, as opposed to the display, of photographs is a protected expressive act, we think it is likely that a court would consider the taking of the photograph to be part of the continuum of action that leads to the display of the photograph and thus also protected by the First Amendment," Rodriguez wrote.

A little more than a week ago, Leggett (D) wrote to the developers, PFA Silver Spring LC and the Peterson Cos., that the street is considered a public forum, permitting "free and unfettered exercise of First Amendment rights."

Photography on Ellsworth Drive became in issue in June, when a private security guard told Chip Py, a resident of Silver Spring, to stop taking photos there.

The security guard sent Py to the Peterson management office, where a company official said the street might appear to be public but is actually treated as private property, controlled by Peterson.

The developers said the public's rights could be limited for security and business reasons because Ellsworth Drive is a "shopping mall without a roof."

A group of photographers and others strongly disagreed, advocating full public rights on a street that was refurbished with public funds.

After two weeks of outcry, the developers revised their policy to permit photos to be taken without their explicit approval. But the developers reserved the right to modify the policy, which left the photographers and other dissatisfied.

On July 4, about 140 people protested by marching on Ellsworth Drive and snapping photos.

Yesterday, I.J. Hudson, a spokesman for Garson Claxton, the Bethesda-based law firm working with the developers, said the developers in general have no disagreements with the county attorney's opinion regarding First Amendment rights.

"We are formulating rules that comport with those First Amendment rights and hope to release them soon," Hudson said.