The Silver Spring Penguin

If it walks like a duck and talks like a duck, it must be protected under the First Amendment, says a memo from the county attorney’s office.

The July 30 memo argued that Ellsworth Drive in the Downtown Silver Spring shopping center was a “public forum.” Therefore, the freedom of speech, assembly and even photography should be protected there by the First Amendment, assistant county attorney Nowelle Ghahhari wrote.

In the past, courts have looked at a couple of things to determine whether a place gets First Amendment protection, Ghahhari explained. A place’s physical similarity with traditional public spaces, its accessibility, and its historic use were some of those factors.

In the case of Ellsworth Drive, all three characteristics applied, Ghahhari wrote. Its streetscape was consistent with other public sidewalks, and nothing marked the area as private. Pedestrians also have unlimited access to the street and sidewalk, Ghahhari noted.

On top of that, Ellsworth Drive at one time was a county-managed street. (The county still owns the street but leases it to the Peterson Cos., which manages the shopping area.) This established its historic use as a public space, Ghahhari said.

While courts have protected the distribution of photos in public spaces, Ghahhari warned that actually taking photos wasn’t always covered.

However, “we think it likely that a court would consider the taking of the photograph to be part of the continuum of action that leads to the display of the photograph.” Therefore, snapping a pic was covered under the First Amendment, Ghahhari contended.

The whole issue of First Amendment rights on Ellsworth Drive started with a photograph. In June, security guards at the shopping center asked local shutterbug Chip Py to stop snapping pics. The incident sparked a Fourth of July “photo walk” and demonstration.

I.J. Hudson, a former TV news reporter and currently a spokesperson for the Peterson Cos., told The Penguin earlier this month that the company’s policies were under review. The policies, Hudson said, 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.”

Memo courtesy of The Washington Post.