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Photographs spur debate on First Amendment

The Baltimore Sun

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."


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