[Infowarrior] - More on....Silver Spring MD photo ban

[Richard Forno]

(c/o Anonymous)

http://www.baltimoresun.com/news/local/bal-md.photo29jun29,0,4435771.story?c
oll=bal-local-headlines

>From the Baltimore Sun
Photographs spur debate on First Amendment
Residents defend rights in downtown Silver Spring


By Kelly Brewington
Sun reporter

June 29, 2007

The snapshots seemed harmless, or so Chip Py thought.

Strolling around downtown Silver Spring on a recent afternoon, the amateur
photographer began shooting the architecture of one of the city's grandest
revitalization efforts -- a popular mix of shops, restaurants and outdoor
gathering spaces that has transformed the once sleepy downtown area.

The photo shoot was cut short when a security guard ordered Py to stop,
saying that photographs were not allowed on the private property.

Py was upset. Wasn't downtown Silver Spring, a project built with millions
in city and state funds, a public space?

According to the developers and Montgomery County officials, the answer is
no.

Py has since organized a group of about 250 concerned residents and
consulted an attorney with the American Civil Liberties Union to fight what
he called an attack on his First Amendment rights.

Last night, the development team, PFA Silver Spring LLC, issued a new
policy, allowing photography in the area. And on July 4, it plans to display
a "Welcome Photographers" banner on the site.

But Py insists photography is not his sole concern. All types of free
expression should be permitted, from political campaigning to handing out
fliers and other literature, he said.

"They are telling us it's OK to take pictures on the street, but we don't
have any other First Amendment rights," he said. "They don't want to talk
about public-private rights on a street. ... We are asking for some First
Amendment considerations in our town."

At noon on Independence Day, Py's group is planning a march on Ellsworth
Drive, which runs through the development.

A spokesman for the development team's spokesman said appropriate
concessions were made.

"I think we went an extra mile in giving the photographers what they asked
for, but we're always open to discussion," said I.J. Hudson, an attorney
with Garson Claxton, a Bethesda law firm that represents the developers. He
described the complex as a "shopping mall without a roof."

Enclosed shopping malls tend to have similar restrictions and are considered
by many to be private property.

"This is private property, and the way we look at it, we have the right to
control private property," he said.

Hudson said banning photographers was not a rule, but rather, emerged after
the developers received a complaint from a mother who said a stranger had
photographed her child.

The new policy states that the complex welcomes photography and ideography,
as long as tenants and others are not harassed or filmed against their
wishes.

Meanwhile, Montgomery County officials have stayed out of the debate for the
most part, saying that since the county leases the property to the
development team, the question of what is permissible should be the
developers' decision.

"But we're hoping for a reasonable accommodation," said county spokesman
Patrick Lacefield.

When the project was launched in 1999, the $1.2 billion public-private
partnership, including $187 million in county and state funds, was
considered the centerpiece of a downtown renaissance. Once a thriving
commercial district, the area had struggled with high vacancy rates over the
last two decades.

Today, the area -- which includes several city blocks amid downtown's main
streets of Georgia Avenue and Colesville Road -- features alfresco dining,
high-end retail and an interactive fountain, creating a mall setting in the
middle of an urban center. The heart of the development runs along Ellsworth
Drive, a portion of which has been converted to pedestrian-only traffic.

In a letter to the developers, Py articulated his concern with a question:
"Where do the public's rights end and the private corporation's policies
take over?"

Legal experts say the distinction is not always clear. As private firms
purchase more public land, the question of public access can become complex,
said C. Thomas Dienes, Lyle T. Alverson professor of law at George
Washington University.

"This issue keeps coming up -- is this really public, or is it private? And
what is the scope of the public forum?" he said. "There is no hard and fast
rule. This is very much a work in progress."

In the case of a shopping complex, however, the public is essentially being
invited onto the private space, Dienes said.

"To the extent that a private property owner opens the property up to public
uses, it's almost like a waiver of private property rights," he said.

Photographers should have been allowed on the property from the start, he
said, as long as they were not interfering with activity around them. After
all, how does one distinguish a photographer taking snapshots from anyone
else shopping or dining in the area? he asked.

But making a case for First Amendment rights could be tough, Dienes said.

"Typically, a private property owner can't violate your First Amendment
rights, only the government can," he said.

But Carl Tobias, a professor of constitutional law at the University of
Richmond, disagreed.

"It seems too rigid to say that if it's public, it's subject to the First
Amendment and if it's private it's not, especially when you invite the
public," he said. "The courts have ruled both ways on this issue. It may be
fact-specific, depending on the kind of speech, the exact area. A host of
factors come into play."

Tobias also asks: "Is a shopping mall really private? I want to use the
word, quasi-public. That's what I would argue."