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Shuttered Shutterbugs: When Downtown Is Private Property

In just seven years, the new downtown Silver Spring has become a bustling restaurant scene, a business center and a public gathering spot popular with all ages.

Except maybe we should reconsider the "public" part.

Chip Py, a longtime resident of Silver Spring, recently returned to an old interest in photography. While wandering through downtown after eating lunch there last week, he took out his camera and started to take shots of the contrast between the tops of the office buildings and the sparkling blue sky.

Within seconds, a private security guard was at Py's side, informing him that picture-taking is not permitted, no explanation given.

"I am on a city street, in a public place," Py replied. "Taking pictures is a right that I have, protected by the First Amendment."

The guard sent Py to the management office of the Peterson Cos., the developer that built the new downtown. There, marketing official Stacy Horan told Py that although Ellsworth Drive -- where many of the downtown's shops and eateries are located -- may look like a public street, it is treated as private property, controlled by Peterson.

"I couldn't believe it," says Py, 43, who knew through his old sales job that Montgomery County had made a huge public investment in the new downtown. County tax dollars accounted for $100.million of the $400.million it took to transform the area. "There's all kinds of county activities there, promoted by county money. How could this be private?"

The same question bothers County Council member Marc Elrich. "Considering the county paid for it, it ought to be a public space," he says. "We invest a lot of police time and county resources there."

But Elrich says Peterson insists on treating downtown Silver Spring as if it were an indoor mall. They set and enforce rules that would never pass legal muster on a public street. Political candidates have been stopped from handing out fliers. And photographers like Py are regularly stopped and told to move along.

That is Peterson's right, says Gary Stith, director of the county government's office in Silver Spring. "It's like any other shopping center," he says. "The street was vacated by the county and is leased to the developer. We wanted them to maintain and manage the area."

County law does require the developer to give the public access to the downtown, "but access and management are two different things," Stith says.

He tells me the developer is "reviewing its policy" on permitting photography. Three Peterson executives did not return my repeated calls, but the company's marketing director, Kathy Smith, sent an e-mail saying that its "policy will remain in place and is a standard operating procedure supporting the safety and security of the property and its customers."

Py doesn't object to reasonable security measures; when county police stopped him to ask why he was taking pictures on the roof of a Wheaton parking garage at midnight, "I was cool with that -- they just checked me out, as they should, and they let me keep taking pictures."

But Peterson's motives go beyond security. "Like any business, Downtown Silver Spring's management maintains the right to approve any videotaping, filming or photography taking place on the property," Smith's statement reads. "It is in our best interest to understand how footage and photos are going to be used."

It might also be in the developer's best interest to understand whether I am going to spend money in their shops or I'm just taking a walk through downtown, but that doesn't give them the right to stop me to find out.

Public access to semipublic places is one of the most volatile issues in the law. While the U.S. Supreme Court has ruled that the right to free expression does not extend to a privately owned shopping center, the court also decided that company towns may not restrict the distribution of religious literature. And in a decision allowing union members to picket in a shopping center, the court said that right would be unquestionable "if the shopping-center premises were not privately owned but instead constituted the business area of a municipality."

Of course, that's the case on Ellsworth Drive, which appears to casual visitors as a public street.

In the end, Peterson granted Py permission to take pictures, which he posted on Flickr.com's D.C. neighborhoods page, where amateur photographers display Washington area scenes.

"But you shouldn't have to go get permission to take pictures," Elrich says. "We created the downtown to be a public space, and it ought to be run like a public space."

By Marc Fisher |  June 21, 2007; 7:18 AM ET
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Comments

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So what are they going to do if I take pixs without their permission! Arrest me please my attorney has some new junior associates who need work!

Posted by: vaherder | June 21, 2007 7:53 AM

Several years ago Slat Lake City sold part of Main St to the LDS Church, making a public road private. Lots of controversy at the time. The guys at the Trib (sltrib.com) can fill you in.

Posted by: wiredog | June 21, 2007 8:03 AM

You know, this used to be a free country. I remember, though it seems like a long time ago.

The sentence, "the guard sent Py to the management office," intrigues me. Was Py virtually hauled off to management? This seems a bit thuggish to me. A guard is not a cop -- and even a cop shouldn't be enforcing stupid restrictions like this.

Posted by: Rocco | June 21, 2007 8:25 AM

Photographers who are interested in their rights to take pictures should download a copy of a tract which was written by Bert Krages II who is an attorney who specializes in intellectual property and photgraphers' rights. His website is:
www.krages.com/thephotogrphersright.pdf

Posted by: Rudy | June 21, 2007 9:10 AM

Was it necessary for the county council to cede the area's public rights to the developer? The time to do something about these giveaways is when our so-called leaders are planning them, not years after the fact when it becomes obvious that the government's decisions were short-sighted. People are no doubt going to make the same complaints about Poplar Point in a couple years, once it's been made livable by MacFarlane and friends. I'm sure MoCo can creatively re-interpret its lease agreement with Peterson in Silver Spring to guarantee unrestricted access by photographers, politicians, and activists, but I have a certain problem with the government throwing its weight around like that. Shouldn't there be a "No Takebacks" amendment to the Constitution? How do local governments expect to attract any significant investment if there's no rule of law, no predicability of what the rules will be a year from now?

Posted by: athea | June 21, 2007 9:36 AM

Great!!! Now we all can file lawsuits, just like the pants guy. ;-)

I think I will go after Google - they have photographs of my house (private property) that are available to the world. And I haven't received a dime in royalties.

Let's all jam the courts with lawsuits until the government brings an end to this madness.

Posted by: SoMD | June 21, 2007 10:00 AM

Rudy: it's http://www.krages.com/phoright.htm (and if you include the part before WWW, it'll be clickable).

I work a couple of blocks from there. I might just go down there and take pictures of their private fiefdom from Fenton or Georgia lookig down Ellsworth. If I'm standing on undisputedly public property, they have no standing to ask me to stop. All they could do is call the cops and report "suspicious activity"...hm, I'd better wear my Fed. ID. :D

Posted by: The Cosmic Avenger | June 21, 2007 10:17 AM

Oops, you had it right, Rudy, it was the capitalization (which matters in the filename, but not domains or directories):

http://www.krages.com/ThePhotographersRight.pdf

Posted by: The Cosmic Avenger | June 21, 2007 10:18 AM

"Let's all jam the courts with lawsuits until the government brings an end to this madness."

Or until the madness brings an end to this government.

Posted by: "Less" Co not Mo | June 21, 2007 10:44 AM

I don't live or work in Silver Spring, but I spend a lot of time there. I've always thought that new development felt pretty plastic, but this is a new low. I'm disappointed, but not surprised, that county government would allow those creeps to create a private mall on a public street. The Duncan administration would bend over for developers in a hearbeat. I wonder if the Leggett administration will prove to be any different.

Posted by: Flora | June 21, 2007 3:25 PM

I agree with Flora. The day I saw the Red Lobster I knew it was going to be off-kilter. Still, I appreciated how it is family friendly and it does bring people together. But this restriction is horrible and counter-productive. Moreover, the Duncan Administration - as Flroa said - would do anything for developers. Leggett has the opportunity here to really do good by doing something about this. I am not sure what he can do, given that the County literally gave Peterson Ellsworth Drive! I am not sure for how long the lease is, but maybe something can be done.

Posted by: Dan | June 21, 2007 10:32 PM

Let's translate this issue into political action.
In the absence of signs saying "Ellsworth Drive
is private property", or a gate across the
entrance to the street, I would be completely
comfortable telling a security guard trying to
stop my picture-taking that he would have to
have proof that it's private property. If it
looks like a public street, it must be a public
street. No proof? So arrest me, I'd say.
(Correction: I think a private security guard
can't make arrests. True? So have me arrested,
I'd say.)

If enough photographers took the time to do
this, it would go a long way toward establishing
a principle that, it seems to me, is worth
establishing: The more closely a private
development resembles space that's traditionally
been public, the less it can exercise
private property rights over that space.

Posted by: Charles Packer | June 22, 2007 7:39 AM

It's not just photographing downtown Silver Spring. It's parking your car on the Whole Foods lot on Labor Day and having it and other people's cars towed away because, we were told, we didn't see a sign where we parked that said "2-hour parking." It cost my friend $130 to bail his car out. It cost Silver Spring 2 middle-aged, middle-class, money-spending customers. Calls to Peterson proved to be unproductive. My friend refuses to come back to downtown Silver Spring. I support him.

Posted by: boyd | June 22, 2007 4:30 PM

That parcel is owned by the county. Looks like public space to me.

Posted by: Lloyd | June 22, 2007 4:56 PM

How would Peterson react if I took an aerial photograph of Downtown Silver Spring? Would they launch a SAM at me? Perhaps call up a couple of F-15s to shoot me down? Hmmm. One wonders.

Seriously, though, I wonder if Peterson would hassle somebody shooting snapshots of his/her family in the street. The company can't be that mean-spirited (or paranoid), can they?

Posted by: Chris | June 22, 2007 6:04 PM

Blame it on Dougie. Duncan never met a developer he didn't like. I was eager to actively campaign against his run for govenor. Look at the Mariott conference center in Rockville. Built against the wishes of everyone but Doug and Mariott. And the green highway signs all point to it as if it is a county facility. And they also call it "North Bethesda" as if "Rockville" doesn't have the right cachet to it. Between what he did to Silver Spring and Rockville to feather his nest, the only thing that should be named after Duncan is a cell next to Larry Small - birds of a feather.

Posted by: Duncan hater | June 22, 2007 10:16 PM

On Sunday I went there and took pictures. I wasn't
accosted by any security guards. However, there is
potentially a more complicated story there than is
indicated in Mr. Fisher's column. The only guard
I saw outdoors was at a plaza where children in
bathing suits were frolicking at a large fountain,
arguably the liveliest scene on Ellsworth Drive.
My wife was with me. Would the guards have left
me alone if I were unaccompanied? It's possible
that the management is making highly selective
use of the authority that it claims.

Posted by: Charles Packer | June 25, 2007 6:12 AM

In my opinion, I think its wrong but not unfair. Although the county paid for the property, it was leased by Peterson, therefore they have the right to regulate what you can or cannot do. They should make it known via signs, banners or whatever.

Posted by: Joe | June 25, 2007 10:47 AM

I disagree with the private property part. Py has his right to take pictures on Public space. Although it was leased to Mr. Peterson , he should've put up a sign saying it was Private Property. If the county bought the place and eventhough they leased it to an owner it should still be considered Public space.

Posted by: Hu$tle Man | June 25, 2007 10:48 AM

I believe that if a company has built an entire downtown area, they reserve the right to control it in any manner they please. Though there are certain aspects of this downtown area that seem public, the fact remains that Peterson built this area. This is similar to an instance in when hypothetically a homeowner buys land, builds a house on this land, and then builds a park on the land. Just because it is a park doesn't give any and everyone the right to roam the land and do as they please. It is the homeowners land and if he chooses to not allow anyone in the park,then no one should take the initiative to go in the park. Peterson builds.Peterson owns.Peterson commands.Not Py.

Posted by: dice. | June 25, 2007 10:49 AM

Owning the entire downtown silver spring as a private enterprise is fine for some. I also understand why he was told not to take pictures of the buildings; secruity purposes. Do you beleive that we need to take precatutions such as these to remain safe?

Posted by: Alan | June 25, 2007 10:50 AM

Owning the entire downtown silver spring as a private enterprise is fine for some. I also understand why he was told not to take pictures of the buildings; secruity purposes. Do you beleive that we need to take precatutions such as these to remain safe?

Posted by: Alan K. | June 25, 2007 10:51 AM

If the company does not want people to take pictures around the area, they need to have an explicitly sign.

Posted by: Mayron | June 25, 2007 10:59 AM

Posted by: Anne | June 25, 2007 1:49 PM

"Do you beleive that we need to take precatutions such as these to remain safe?"

No. I don't. Prohibitions on taking pictures of military installations is one thing, but of a pedestrian mall? The Gap has no security interest so powerful as to justify overriding my rights.

Part of the cachet of an "open-air mall" such as this is that it mimics public property. I am disquieted by the idea that private entities are so blithely cashing in on the best of both worlds -- the control they can exert over private property, as well as the community access and "third-space" aspect of public property.

Posted by: Anne | June 25, 2007 2:44 PM

I feel as though if the property was a public place at first and it converted into a private propety after being sold, they should have made it known to the public. It should had been announced or somewhat obvious to the human eye that it was now private. It could have easily been abscene with a sign or even a public announcment on the radio.

Posted by: Classykii | June 26, 2007 11:38 AM

i agree with you one-hundred percent because if the money used to build the downtown mall was from the people then all people especially residence should be able to come and go with what ever ,but at the same time you have to look at it from there end they dont want people coming around destroying property or causing any disturbance that can cause the buisness to be criticised you although i agree with you, you should look at the situation from their side and try to understand first before making any drastic measures

Posted by: BG | June 26, 2007 11:39 AM

I think that what the security guard did was not common descecy, but at the same time I understand where they were coming from. Sometimes people have to escort people off of some premisis bescause of the way they carry themselves, but the security guard still sholud have asked what he was doing instead of taking action right away. If I was in the place of PY I would be dumfounded also because I feel as though we should be able to take pictures of a sometyhing without being questioned.

Posted by: ray | June 26, 2007 11:41 AM

I think that what the security guard did was not common descecy, but at the same time I understand where they were coming from. Sometimes people have to escort people off of some premisis bescause of the way they carry themselves, but the security guard still sholud have asked what he was doing instead of taking action right away. If I was in the place of PY I would be dumfounded also because I feel as though we should be able to take pictures of a something without being questioned.

Posted by: ray | June 26, 2007 11:42 AM

I think that what the security guard did was not common descecy, but at the same time I understand where they were coming from. Sometimes people have to escort people off of some premisis bescause of the way they carry themselves, but the security guard still sholud have asked what he was doing instead of taking action right away. If I was in the place of PY I would be dumfounded also because I feel as though we should be able to take pictures of a something without being questioned.

Posted by: ray | June 26, 2007 11:42 AM

I think that what the security guard did was not common descecy, but at the same time I understand where they were coming from. Sometimes people have to escort people off of some premisis bescause of the way they carry themselves, but the security guard still sholud have asked what he was doing instead of taking action right away. If I was in the place of PY I would be dumfounded also because I feel as though we should be able to take pictures of a something without being questioned.

Posted by: ray | June 26, 2007 11:43 AM

I think that what the security guard did was not common descecy, but at the same time I understand where they were coming from. Sometimes people have to escort people off of some premisis bescause of the way they carry themselves, but the security guard still sholud have asked what he was doing instead of taking action right away. If I was in the place of PY I would be dumfounded also because I feel as though we should be able to take pictures of a something without being questioned.

Posted by: ray | June 26, 2007 11:43 AM

why do you think that people make these unwanted rules for there private land when most of the time places like down town sliver spring is open to the pepole in these different towns. But you have to think about it that man who ask you what was you doing He might have thought you were a spy or some one to plan a bomb or something.

Posted by: iMAC | June 26, 2007 11:43 AM

I think that this situation doesnt make any sense. If he wants to take pictures of a mall he should he probably wanted to frame the pictures and put them in his house. Don't people pay any attention to the amendments. he has the freedom of expression and I don't think anyone was letting him express his feelings.

Posted by: Anonymous | June 26, 2007 11:43 AM

I would be surprised if there weren't more than a few photographs taken by the many filmakers that were in town for SilverDocs two weeks ago.
Can you imagine their reaction to a guard telling them they could not take pictures?
'Incredulity' would be my guess. I would wager that those folk were NOT stopped. It would have been poor hospitality for an event that brings in big bucks to the DTSS establishments!

Posted by: Susan R. | June 29, 2007 1:14 PM

It seems Americans have slowly gotten used to being denied our basic rights. We have lost our sense of ownership of our own government, and become much too passive and compliant.

There was a time when we could expect an outcry over such a travesty. I want my tax money back if they do not treat us with much more deference and gratitude for our patronage!

We can't take pictures?? What the?!!

We spend our money there after all.

Boy this really rankles.

And their only justification? 'We said so that's why!'

Four years ago the man occupying the White House told us what our role is in HIS America. He said "go shopping". The "Shut up" part was implied.

For my own part, I intend to announce to the manager of each business on Ellsworth that I deal with, that if they do not stand with us and oppose the 'no photography' nonsense, I will no longer give them my business.

But that can only work if enough people do the same.


Shugart, Erika wrote:
>
> Thought the neighborhood might find this of interest:
> http://blog.washingtonpost.com/rawfisher/2007/06/shuttered_shutterbugs_when_dow.html#comments
>
> Turns out you can't take photos on Ellsworth drive in downtown Silver Spring. And here I was planning to take pics of my son in the fountain!
>
> Erika
>
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Posted by: Arlene Montemarano | July 6, 2007 4:43 PM

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