The Washington Post
Public or Private Space? Line Blurs in Silver Spring
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 actually 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 such as 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 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.” Join me at noon today for “Potomac Confidential” at www.washingtonpost.com/liveonline.