Photos on the 4th: Showdown in Downtown Silver Spring
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 earlier this 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 who controls the place 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. The Free Our Streets movement is quickly gathering steam, and that's caused something of a reaction from the powers that be.
The Peterson Companies, the developer that took advantage of $100 million in generous taxpayer support to get their lovely downtown retail strip going, is apparently running scared, and has offered what it terms a compromise. But it's an empty offer. Peterson will put up a "Welcome Photographers" banner, but the reality is that the company is in no way conceding that the street it controls is open to the public in any meaningful way. Here's the company's statement:
"We welcome photography, videography and other filming at our Center. We permit all of these activities, as long as our patrons and tenants are neither harassed nor photographed or filmed over their objection. Also, any activity which would interfere with pedestrian or vehicular movement requires advance management approval. We continue to encourage patrons to report inappropriate behavior to police and security personnel. We reserve the right to modify this and other policies."
"I think we went an extra mile in giving the photographers what they asked for, but we're always open to discussion," I.J. Hudson, an attorney for the developer, told the Baltimore Sun. He described the street as a "shopping mall without a roof," going on to say that "This is private property, and the way we look at it, we have the right to control private property."
Of course, the property is very much public, but Montgomery County ceded control of the property to the developer, and the county wants the developer to be 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 semi-public spaces, Washington lawyer Jason Levine, in an article in the University of Memphis Law Review (not online, unfortunately), notes that the very definition of public space is muddled. Are we talking about space that is owned by the public, space that is open to the public, or is public space 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 the 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 up 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 to reign supreme 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 in a passage that applies directly to the Silver Spring case.
"Streets are as old as civilization," Levine 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 as far as 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 that space, the court ruled that the law must provide the people who visit there with the same kind of rights and access that a purely public space would afford the people.
That's what has to happen in Silver Spring. The gathering on the Fourth is just the first step in that direction.
By Marc Fisher |
June 30, 2007; 11:18 AM ET
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