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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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Wow, Marc. This is excellent, both for the choice of topics and the writing.

Posted by: Mark | June 30, 2007 12:34 PM

I have quite a few photography friends in silver spring, including my wife.

As far as I am concerned, you give up your private property rights when you build these types of structures.

The root of the word private means "to deprive of" and since they are going out of their way to try and get people to access their private property, not deprive people of access, they sacrifice their ususal private property rights, as far as I am concerned.

I will be out there camera in hand!

Posted by: silver spring | June 30, 2007 12:57 PM

What makes Ellsworth Drive in Downtown Silver Spring even more unique, is the specific lease agreement they have with the county that we detailed here:

We we interpret the $1 a year lease to uphold our rights to photography, videography, and other filming on Ellsworth Drive, consistent with First Amendment rights as they would apply on any other public street. Not a Peterson photography policy that can be changed at any time.

And so we invite everyone who believes public investment should come with public rights to join us on July 4th for a celebration of photographic freedom.

Posted by: Wayan - Free Our Streets | June 30, 2007 1:17 PM

Marc, this is off topic, but did you see that Eleanor H. Norton cast an anti-gay, anti-DC self-determination vote in the House on Thursday? Check out the (dumbass) Goode Amendment to H.R. 2829 (roll call vote no. 603) from Thursday. Norton voted to allow the federal government to deny funding to any DC initiative to create a civil union registry.

What is Norton thinking? Is this a homophobic side we're going to start seeing now that she has a limited ability to cast votes?

I heard her justification was the President threatened to veto the legislation (the Financial Serivices & Gen. Gov't Approps bill, which included DC's federal funding package) if it didn't include the ban on DC's civil unions efforts.

That doesn't make sense. First of all, why would Norton care if the President issued a veto threat? Second, the amendment did not squeak by; it passed 224-200, Norton's vote made no difference. It wouldn't have made a difference anyway, since under House rules no Delegate (Norton included) can cast a deciding vote. Her votes are entirely sybolic.

So Norton consciously cast her vote against gay rights. WHY?

It'd be great if you could get an answer -- thanks.

Posted by: T | June 30, 2007 3:06 PM

i will like to see 14 years girls on sex today sunday

Posted by: zakari abdullahi nassarawa | July 1, 2007 6:15 AM

Is this the same I.J. Hudson who used to be a reporter at channel 4?

Posted by: PJK | July 2, 2007 10:16 AM

Petersen is also going to manage the huge National Harbor complex in PG County. Will one of the largest open air entertainment areas on the East Coast - partly funded by the public - also be restricted?

Posted by: Dan | July 3, 2007 11:08 AM

This is by no means a recent issue. It's simply a matter of tyranny by fearful conservatives including most business owners who want to control everything and enforcing it through ignorant $7.50/hr "Barney Fife Rentafuzz" who have little or no knowledge of the law except that handed down by their equally ignorant bosses!

I've been an professional/amatuer passenger transport photographer for almost 50 years and HARDLY EVER had this problem until the panicky sillines that came after 9/11! I had FAR less problems
in former Soviet bloc countries such as old
East Germany, Hungary and Czechosolvakia!

The fact is that it's really unecessay to
photgraph anything to "sap (plant explosives)" anywhere- All that's needed is a simple visual check, drop the explosives and go! See? No photography involved at all- this is how it was done in Madrid and London!

Many Americans have this grandiose and fearful "conspiracy" mentality that believes that all these attacks are highly organized and planned when they are not and it's this simplicity that makes it all the more difficult to detect!

Being retired after being with DoD intelligence and security, I'm totally aware how espionage and sobatage can be done quite simply!

If I want to take transportation pix now,
I often have to hide behind things and use telephoto lenses! My preference has always been to be right out in the open with proper regard to safety regulations and be free to ask or answer any questions! Now,
which of the two choices above makes me look like a spy (or terrorist)?

Barry G. Smith
Arlington, Va

Posted by: Barry G. Smith | July 3, 2007 4:10 PM

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