Restrictions spur dispute over public rights in Maryland center

Conflicts continue to arise between privately owned town centers and people who think the centers should uphold all the freedoms the US Constitution guarantees in the public domain.
In June a security guard at a large Maryland development known as “Downtown Silver Spring” ordered photographer Chip Py to stop shooting pictures on its property. “I am on a city street, in a public place,” Py told the guard, according to The Washington Post. “Taking pictures is a right that I have, protected by the First Amendment.”
The guard informed Py that what appears to be a public street is in fact managed by the developer, Peterson Companies. The street, Ellsworth Drive, was leased for $1 to the developer by Montgomery County, which helped the $450 million, 22.5-acre retail, office, residential, civic, cinema, and entertainment complex come into being. Gary Stith, director of the Silver Spring Regional Center, said the county spent about $187 million on land acquisition, environmental cleanup, renovation of a historic theater, construction of two parking garages, and work on streetscapes and public spaces.
Montgomery County Council member Marc Elrich objected to Peterson’s policy, saying, “We created the downtown to be a public space, and it ought to be run like a public place.” Within two weeks, the developer relented, saying that in the future the company would not require permission to shoot photos or videos, as long as the customers being recorded did not object. However, the developer’s law firm said the company might still enforce restrictions in some instances, such as “a news broadcast that might get in the way.”
Critics found fault with the idea that developers can selectively decide which freedoms should be honored and which ones abrogated, when public agencies provided funds or property for the projects. Elrich said, “What I would like to see from all of this is, when all these public-private partnerships proceed … that our elected officials stand up and say, ‘If we give you this public money, we expect this to be public space.’”

expression at issue
Post columnist Marc Fisher took up the cause, writing, “The issue here is whether publicly owned but privately developed downtown retail developments — essentially outdoor shopping malls created to give the public a downtown feeling in a shopping district managed by a for-profit corporation — must allow people to express themselves as they would in any public space — that is, by allowing people to distribute political literature, take photographs, preach their faith, or behave in any way that they would on a street in a naturally occurring city.”
Fisher pointed out that in early May a similar incident occurred at the new Town Square in Rockville, Maryland (a town center reported on in the July-August New Urban News). In Rockville, a security guard prevented a political candidate from taking photos. Soon after the incident, Rockville City Manager Scott Ullery announced that Rockville had no policy against such activities. He said the security guard had apparently acted on his own, without orders from the city or from the developer, Federal Realty Investment Trust.
Ullery apologized to the man shooting photos, and Federal “readily agreed the security company needed more direction,“ a spokeswoman for the city said. Photography is allowed there, as are other activities. “Individual rights to free speech and assembly are protected in Rockville, and will remain that way throughout Town Square,” Ullery told New Urban News. Fisher noted that in Rockville, “$88 million of the $352 million cost of the downtown development is being paid for by various government agencies.”
As for the outcome in Silver Spring, County Executive Isiah Leggett has since announced that the county “considers Ellsworth to be a public forum permitting the free and unfettered exercise of First Amendment rights” and has said the developer should not infringe on those rights. An attorney for the developer said rules would be formulated respecting First Amendment rights.
Even if this settles the dispute in Silver Spring, the issue seems likely to recur at new urban centers elsewhere.