Friday, June 29, 2007

peterson backs down, but hassled photographers persist

SIDE NOTE: I was accosted by security this afternoon while attempting to photograph the atrium of an office building on 12th Street in Downtown D.C. - while at work there . . .

This morning, the Peterson Companies has offered an olive branch of sorts to the photographers and bloggers it has recently slighted in Silver Spring (a detailed play-by-play of which can be found at the Baltimore Sun):
"We welcome photography, videography and other filming at our Center. We permit all of these activities, as long as our patrons and tenants are neither harassed nor photographed or filmed over their objection. Also, any activity which would interfere with pedestrian or vehicular movement requires advance management approval. We continue to encourage patrons to report inappropriate behavior to police and security personnel. We reserve the right to modify this and other policies."
Peterson, owner of the Downtown Silver Spring complex, recently came under scrutiny for its "no photography" policy on Ellsworth Drive after security guards accosted photographer Chip Py two weeks ago. Py was unimpressed by the Peterson Companies' reversal. On the Free Our Streets blog, he said that the photographers' protest planned for July 4th on Ellsworth will go on as planned.

JUTP guest blogger Adam Pagnucco helped to broker the compromise between Peterson and the photographers. His take on the Peterson Companies' attempt to respond to community needs comes AFTER THE JUMP . . .

In evaluating the above policy, it is important to consider the exact legal status of Ellsworth. Ellsworth between Fenton and Georgia is owned by the county. However, it is leased by PFA, the partnership that built and now manages the development. The lease has a broad management rights clause for the partnership. However, it is also contingent on a public use easement that allows right of passage to the public and declares the street to be "public use space." More information on the exact language pertaining to the development can be found on Free Our Streets.

PFA has an option to buy the development outright. After ten years from the signing of its lease, the sale price will be one dollar. PFA could buy it now, but they would have to pay a higher price. The point is that this street could be 100% private property at any time.

PFA's new policy allows substantially the same photography practices that would prevail on a public street. The only difference is that PFA is not conceding that the First Amendment applies directly to what it considers to be its private property through its lease. Some believe that it should concede this right. I do not know of a real estate company that would surrender First Amendment rights on its private property without a court battle.

The organizers of deserve credit for winning a much-improved photography policy from the company. The debate of the past week has also raised a compelling issue: what rights do citizens have on land controlled by public-private partnerships? Shouldn't those rights be addressed in detail in future agreements? The agreements applying to Ellsworth were negotiated prior to 9/11. We live in a different world now and we must closely examine the balance between commerce and liberty in our government's dealings with business.

PFA also deserves credit for acting in good faith and crafting a new policy that will prevent the sort of incident endured by Chip Py. PFA has told the Baltimore Sun that it will now welcome photographers rather than discourage them. PFA could have hired an army of lawyers and fought tooth-and-nail, but they instead chose to listen and change. As someone who has spent his life in the labor movement, I wish more businesses conducted their operations in that way.

Adam Pagnucco


Wayan said...

We are happy that the Downtown Silver Spring developers have altered their policy to allow limited photographer access to Ellsworth Drive, and thank Adam for helping make that happen.

But a policy change that can be modified at any time is not what we're asking for. Free Our Streets is asking for PFA Silver Spring LC to welcome photography, videography, and other filming on Ellsworth Drive, consistent with First Amendment rights as they would apply on any other public street.

The Downtown Silver Spring development includes $187 million in county and state funds and the once completely public property Ellsworth Drive, public investment that should come with public rights.

And so the Downtown Silver Spring Photo Walk is still on. A declaration of photographic freedom on July 4th.

chippy said...

I am a photographer. On June 12 of this year, two representatives from the Peterson Companies, managers of the now trademarked Downtown Silver Spring, asked me not to take pictures on Ellsworth Drive. At that time, the representatives misrepresented the facts regarding ownership of Ellsworth Drive, and made deliberately misleading statements over the questions that I raised regarding my First Amendment rights in a seemingly public place.

Immediately following this incident, I wrote a letter to the County Executive and to each of the members of the county council. I posted this letter on the popular photography site, Flickr.

My letter raised the question as to where the public’s civil rights end and the corporation’s privacy rights begin when there is a publicly funded/privately partnered development, in which public monies and land are developed, and then turned over to private corporations. These rights, I reasoned, not only included photography, but on a much more important note, the freedom to petition, campaign, assemble and protest, rights guaranteed by our Constitution. I asked the County Executive and members of the county council to begin a dialog about this important issue with the Peterson Companies.

In the last few weeks my letter, picked up off the Flickr site, has enjoyed wide circulation on the internet. Additionally, every major newspaper in this area reported on the issue and the questions I raised. My story was carried on national TV and syndicated public radio. Washington Post columnist Marc Fisher took a stance in his column last Thursday, which continued in his on-line chat room that afternoon. Local Listservs in the area are abuzz. Members of several prominent Blogs and newly formed photo rights groups in the area came together to organize a photo outing and protest in downtown Silver Spring this coming Independence Day to highlight the true issue here.

While council member Marc Erlich has spoken about this in the press, and I have heard from staff members and insiders that this has been hot topic in the county offices in Rockville the last two weeks, many council members and the county executive have yet to weigh in on the issue.

I am growing concerned that our elected representatives have not yet taken a decisive stance over the growing concern that in downtown Silver Spring, our civil rights may be in jeopardy.

This morning the Peterson Companies, managers and developers of the trademarked “Downtown Silver Spring,” issued a statement. They will allow photography and video taping on Ellsworth Avenue. They make provision, however, that the arrangement can be rescinded. The new policy makes no statement regarding the important issues that I have raised.

In my opinion, the Peterson Companies is missing the point. Not one of the media outlets covered this story out of a concern for the photo enthusiast. This issue has exploded in the minds and the hearts of the people hearing my story, because they fear that civil liberties are being trammeled in public/private partnerships.

With many more of these public/private partnerships now under consideration not only here in Montgomery County but also in nearby College Park and around the country these are questions that deserve to be addressed by not only by our citizens but by our public officials too.

Please join us at noon on the fourth of July. We will gather at the green turf to let our county officials know that the people of Silver Spring will not have their rights under minded and restricted in our town.

Anonymous said...

Marc Fisher has commented again on this subject

Anonymous said...

Photos on the 4th: Showdown in Downtown Silver Spring
Chip Py's run-in with the picture police of downtown Silver Spring has morphed into a good old American fight for the right to express oneself.

Py, a Silver Spring resident, discovered earlier this month that what looks and feels like any old public downtown is in reality a private, if roofless, shopping mall where private security guards can and will stop you from taking pictures just because the developer who controls the place feels like exercising its control jones. Now, amateur photographers from all around the region have decided that they too can flex their muscles, and they plan to gather on Ellsworth Drive on the Fourth of July to demonstrate their right to take photographs in a public setting. The Free Our Streets movement is quickly gathering steam, and that's caused something of a reaction from the powers that be.

The Peterson Companies, the developer that took advantage of $100 million in generous taxpayer support to get their lovely downtown retail strip going, is apparently running scared, and has offered what it terms a compromise. But it's an empty offer. Peterson will put up a "Welcome Photographers" banner, but the reality is that the company is in no way conceding that the street it controls is open to the public in any meaningful way. Here's the company's statement:

"We welcome photography, videography and other filming at our Center. We permit all of these activities, as long as our patrons and tenants are neither harassed nor photographed or filmed over their objection. Also, any activity which would interfere with pedestrian or vehicular movement requires advance management approval. We continue to encourage patrons to report inappropriate behavior to police and security personnel. We reserve the right to modify this and other policies."
"I think we went an extra mile in giving the photographers what they asked for, but we're always open to discussion," I.J. Hudson, an attorney for the developer, told the Baltimore Sun. He described the street as a "shopping mall without a roof," going on to say that "This is private property, and the way we look at it, we have the right to control private property."

Of course, the property is very much public, but Montgomery County ceded control of the property to the developer, and the county wants the developer to be in charge of maintenance and regulation of the downtown. That's where this gets tricky.

In a splendid review of the law's failed attempts to grapple with public access to semi-public spaces, Washington lawyer Jason Levine, in an article in the University of Memphis Law Review (not online, unfortunately), notes that the very definition of public space is muddled. Are we talking about space that is owned by the public, space that is open to the public, or is public space any space between private spaces?

It matters, because the law is stuck in a very old place where there was just private and public, while reality has turned many places that were once municipal into places that are now commercial, creating real conflicts between developers and the people. As Levine writes, "Our town squares have become shopping malls. Our open neighborhoods have become gated communities. Our public basketball courts have become private health clubs."

The whole trend is a recipe for conflict. I've written about suburban residents who were told they could not put up a sign for a political candidate on their own lawn, because the developer's rules forbade it. And I've written about attempts by shopping center owners to prevent political or religious speech on their property. The Silver Spring case is an especially vexing one because the downtown appears to any outsider to be a purely public place.

"If all public space is privately owned, where will the marketplace of ideas exist?" Levine asks. He argues that it's time for the law to recognize this shift in how we live and clear the way for freedom of expression to reign supreme even in places that the law views, all too narrowly, as private.

"Society is at risk of losing all space in which to conduct face-to-face public discourse if no toll is exacted on private property owners for the unfettered access they now have to hawk their goods to the populace," Levine writes in a passage that applies directly to the Silver Spring case.

"Streets are as old as civilization," Levine notes, "and more than any other human artifact have come to symbolize public life, with all its human contact, conflict and tolerance." What makes downtown Silver Spring any different from Times Square or M Street in Georgetown as far as its function as a gathering space?

The courts are starting to see the light on this. In Las Vegas in 2003, a federal appeals court struck down a law that severely restricted First Amendment rights at a publicly owned, privately operated pedestrian mall called the "Fremont Street Experience." That place, remarkably similar to downtown Silver Spring, was designed to renew downtown Vegas, but despite the city's attempt to privatize that space, the court ruled that the law must provide the people who visit there with the same kind of rights and access that a purely public space would afford the people.

That's what has to happen in Silver Spring. The gathering on the Fourth is just the first step in that direction.

By Marc Fisher | June 30, 2007; 11:18 AM ET

Anonymous said...

My wife doesn't like it when strangers take pictures of our children without permission.

WashingtonGardener said...

Anonymous - If you are in a public place and can be seen with public eyes - than you can be legally photographed. I don't like being oggled by strange men as I walk down the street every day, but that is one of the prices we pay for freedom. You can go to the extreme of Michael Jackson and drape your kids in scarves whenever they are out and about, but I think the reasonable choice is to dress and act appropriately for the street. If a photographer seems creepy or is taking lots of photos of your child say at a street festival - approach them directly and in a polite way ask what their purpose is and what the photos are intended to be used for - most likely it is harmless.

Anonymous said...

Mr. chipie or however you want to call yourself,

No offense but where the Hell were you when the Authorities stopped a man in Charlotte, NC for taking photos of the Infamous Bank of America Skyscraper out of some sort of racial profiling because of him being a Muslim.

Or what about the Big Controversey of Females complaining of Men taking photos of them on their cell phone at Balley's or Gold's Gym while they were exercising.

My point is I feel that your only doing this as a hidden agenda to get people to turn their backs on Developers in hopes that there will be no more Upscale development in Silver Spring or any parts of Montgomery or PG County which will continue to force Maryland citizens to take their money to more Upscale Modern areas of Virginia or any other City/State outside of Maryland.

The reason why I say this because I have never heard anyone complain/challlange the Authorities about not being able to take photos of the Pentagon, White House, US Capital, Empire State Building, Sears Tower, Lincoln Tunnel, etc.

The Delevoper stated that everyone does have the right to take photos of his property in Downtown Sillver Spring, but no you want to make alot noise like a empty wagon just to show your hatred towards the Developer that revitalized Silver Spring, my bet is that you were Totally against the redevelopment of Silver Spring when it was first proposed and Most likey participated in the destruction to stop the Former Developers that were Planing to build the "American Dream" MEGA Entertainment Mall/Indoor Water Park.