Downtown Silver Spring should be treated as any other public space, MoCo exec Ike Leggett (D) wrote to the shopping center’s management company.
Updated Jul 23, 2007, at 12:41 p.m.
In a letter dated July 20, 2007, Leggett told the Peterson Cos. that the county considered Ellsworth Drive to be a “public forum permitting the free and unfettered exercise of First Amendment rights.”
“What they’re doing is contrary to the First Amendment,” Leggett said at Silver Spring’s town-hall meeting the night before the letter was dated. “It will no longer stand, and we intend to not abide by them.”
The Peterson Cos., which lease the area from the county, can adopt rules that promote public safety, the letter acknowledged. However, Leggett argued in the letter that the leasing agreement “does not change the character of Ellsworth [Drive] as a public forum.”
I.J. Hudson, a former TV news reporter and currently a spokesperson for Peterson Cos., told The Penguin that the management company was looking closely at Leggett’s letter.
The company’s policies were under review and would “meet both the developers’ obligations to the county and the needs of the entire community, including the First Amendment rights of our patrons and other visitors,” Hudson wrote in an email to The Penguin.
The free-speech discussion began in June, when security guards at the shopping center asked local shutterbug Chip Py to stop snapping pics on Ellsworth Drive. The incident sparked a Fourth of July “photo walk” and demonstration.
“There never has been a ‘no photography’ policy,” Hudson told Silver Spring’s citizens advisory board earlier this month. However, he said the Peterson Cos. do ask people to practice “respectful photography” that considers patrons’ privacy and doesn’t block walkways.
Members of the citizens advisory board worry that the issue could extend beyond the ability to take photos. During one election year, board member Mark Woodard said security guards asked him to stop distributing campaign fliers on Ellsworth Drive.
The incident, he said, was “an unconscionable violation of my civil rights.”
Hudson said Peterson Cos. has been consistent with its approach to the matter. “We said we’d review the photography policy, and we changed it. The same is true with our further reviews,” he wrote in his email.
“We will do the right thing,” Hudson added.
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Unless Mr. Legget’s got a clause in the lease about this issue, I don’t see where he has a legal leg to stand on. The county can consider Ellsworth Drive whatever they want – the courts will not find the issue nearly as simple.
Who says Peterson Cos. has a legal leg to stand on either? Obviously since they’re responding so quickly to this, they must’ve done something wrong and they’re working hard to fix it.
“Who says Peterson Cos. has a legal leg to stand on either?”
The case law for malls and photography is quite well established, from what I understand. There’s no reason to think this would change just because you’re outdoors. Peterson leased out Ellsworth Drive, and thus, they make the rules.
I’ve got a copy of Peterson’s lease with the county. I’ll bounce it to a couple of lawyers to see what they think.
David, unless you’ve seen the lease agreement (for $1/year if I remember correctly), you can’t make a broad statement about legalities from either side of the fence. If the lease doesn’t mention anything about photography or privacy on the street, (or even better, if it specifically stipulates that first amendment rights are protected) then it would be perfectly fine to assume that there’s nothing wrong with taking pictures or videos or handing out political flyers. That was the point of my response.
Signing a lease doesn’t mean that whoever is the lessee has the right to impose anything they want. Usually the lessor includes provisions in the lease as to what is and what is not allowed (same thing that would happen leasing a car or an apartment). It’s not like Peterson actually bought the street. That would be different.
Good points – I didn’t consider that leasing public property as a private entity might be different than leasing private property as a private entity.
I’m definitely eager to hear what the lease says about what rights were handed out.