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Photo Freedom Update: MoCo Tells Silver Spring Developer to Let People Shoot

In the continuing saga of the fight for First Amendment rights in the publicly-owned but privately-managed downtown Silver Spring, Montgomery County's chief lawyer today released a strongly worded opinion making it clear that the new downtown development is public space and must be open to public expression, whether political, religious or the simple act of taking photographs.

The opinion is clear from its first words: "Ellsworth Drive constitutes a public forum."

In an elegantly reasoned and clear opinion, Assistnt County Attorney Nowelle Ghahhari reminds the Peterson Companies, the developers of the highly successful downtown project, that the land upon which their development sits is public and that the developer has the right only to close Ellsworth Drive to vehicular traffic from time to time, not pedestrian traffic. Citing court cases in which judges have defined public fora as "those places which 'by long tradition or by government fiat have been devoted to assembly and debate'," the opinion says that streets and sidewalks are clearly such public places.

While it's true that the land in Silver Spring is leased to a private entity, the sidewalks and street are clearly public, just as the U.S. Supreme Court decided that the sidewalks in front of its own buildings are obviously a public forum.

In a Salt Lake City case in which the city sold to the Mormon church a portion of a downtown Main Street, which was then closed to vehicles and turned into a pedestrian plaza--a pretty good analogy to the Silver Spring situation--a federal appeals court ruled that the street nonetheless remained a public forum because "it forms part of the downtown pedestrian transportation grid, and it is open to the public" and therefore "shares many of the most important features of sidewalks that are traditional public fora." That's very much the case in Silver Spring.

In the Silver Spring case, the county attorney writes, the streets, sidewalks and walkways "are not in anyway distinguishable from other, publicly owned streets, sidewalks or walkways; they form a part of both the vehicular and pedestrian transportation grids of downtown Silver Spring, and are not marked 'private.'"

And the county makes clear that it considers photography every bit as much a protected form of speech as political or religious speech.

"The Developer must comport with the First Amendment in exercising its right to implement reasonable rules and regulations to maintain order and promote the safety, security and economic success of the property," the opinion concludes.

No word yet from Peterson Companies as to whether they will drop their insistence on the right to decide which speech is ok in Silver Spring's lively new center.

By Marc Fisher |  July 30, 2007; 5:40 PM ET
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Comments

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A clear, efficient, and expedited example of justice.

Posted by: Dan | July 31, 2007 7:39 AM

Kudos to Marc for using the correct plural of "forum"--"fora." Good to see the Latin niceties preserved.

Posted by: Jack | July 31, 2007 9:32 AM

In the Silver Spring case, the county attorney writes, the streets, sidewalks and walkways "are not in anyway distinguishable from other, publicly owned streets, sidewalks or walkways; they form a part of both the vehicular and pedestrian transportation grids of downtown Silver Spring, and are not marked 'private.'"

So does this mean that the developers would be able to block people from taking photos and passing out flyers if they painted the sidewalks a different color and etched the word "private" in the sidewalks around the shopping center?

Posted by: Anonymous | July 31, 2007 10:46 AM

The lessee should now drop their suit. If they do not, the city should counter-sue for breach.

Posted by: Mark | July 31, 2007 1:00 PM

That attorney really knows her stuff. Her cited cases were right on point. Kudos to her for the great research.

Posted by: Jim Vance | August 1, 2007 3:59 PM

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Posted by: rukludiron | August 26, 2007 12:59 PM

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