Photography Banned in Downtown Silver Spring, Maryland

[john_elder1]

Brad I forgot, while at Syracuse I got "The Book" for getting the highest grade in Future Interests the hardest subject at Syracuse Law taught by the esteemed Professor Samuel Fetters.

[Brad_]

OK, that's great John. Now, are you going to walk your talk and make this a major federal civil

rights issue and bring the ACLU in? As you said, *someone* should...

[Brad_]

>>> Brad I forgot, while at Syracuse I got "The Book" for getting the highest grade in Future

Interests the hardest subject at Syracuse Law taught by the esteemed Professor Samuel

Fetters.

 

How nice for you!

[Uhooru]

""Totally diferent with a municipalty, Si;ver Springs leasing the land from a government entity, in this case, Montgomery County. A photographer has all of their civil and Constitutional rights in tact in the "company-town".""

 

Actually, it sounds from the article that The Peterson Companies, not Silver Springs, is lesing from the County but is required to give access. The piece implies that it may be for ingress/egress purposes to other parts of the Silver Springs Downtown area that are adjoined and are public. So is it possible that except for the right to use the street, for all other purposes it is like being on private property? Wouldn't you have to legally analyze the lease before you could draw any conclusion? Or do you contend that for all purposes it is like public property even though it is being leased and paid for by a private company?

[thomas_sullivan]

no, actually Barry, I take the "implication" the other way round. The public has ALL public access. Public rights are a given. Let's repeat that. Public rights are the given. The Constitution and the Bill of Rights assumes certain things to be a right of the people. That's the way it works here in the US........or is suppose to work. Every law about rights is about stopping governments and powerful people from taking those rights away from those who can't fight for themselves.

 

So, according to the article you read, Montgomery County still owns the street. Meaning that ALL public rights are in tact....ALL. The company leases said street from the county/public/people with certain conditions. Those conditions are that it maintains the area, provides security, and manages the area.....items that the county would normally do. The implication I see in this is that the company can then use the street when they want to without having to get a permit. And just to explain what a permit is.......it is a permit to temporarily block or impair the free access of the public to a public area. The impication is that the public always has free access to public streets.......permits only temporarily infringe upon them.

 

So, this lease, in effect KEPT the public access part still like normal. The public has, as they always do (ie...meaning, the lease doesn't allow for public access...the public always has access to public property....this lease actually probibits the company from any ability to block public access), , so as I was saying.....the public always has free access. The county didn't allow the company anything in that arena. What it allows is the company to do things on the street without applying for permits all the time. I repeat this because it's important to comprehend. All public rights are maintained. The only thing the lease does is allow the company, a private organization, to do things on public property that they otherwise would have to get a permit for. And for granting this cart blanche permit, the county has the company maintain the area.

 

But no given public rights have been touched.

 

Anyhow, that's my interpretation.........that's the implication I see.......and if the county did any thing other than that, well the State needs to review that lease and get it straigtened out. They can't give away public rights..........they can only protect them.

[tholte]

It would be fun to get a few hundred photographers and swarm the goofy place, have the security guards running around in a tizzy.

[Uhooru]

Thom, I read further than just the article, and the pulic use clauses were identified and explained and compared with potenially competing clauses of reasonable control by the lessee for the property etc, however they seem to state they are"subject to" the public use condition and those definitions. So there is a good chance the photo was within rights. He should sue if he feels strongly about it instead of all this winging. Rome not be built by talkin it is said.

[thomas_sullivan]

"...He should sue if he feels strongly about it..."...yeah, he probably should. But, ya know........that's a hell of a way to secure your rights. I think a much better method, would be that a person, who contests things like this, could get a hearing with the company, the county, and the next highest authority (I guess in this case that would be the state) and present his case.........by themself or thru the office of an elected official. I mean, that's what elected officials are for.........to represent the public of their district......correct? With stuff like this, lawyers only get in the way.........no offence meant to you lawyers out there........but think about it. Isn't that the job of an elected official? To protect the rights of their constituents?

 

oh forget it...........now I'm just dreaming........heh. think I'll go take some pics.

[akochanowski]

I don't know about a civil rights suit but John is correct that from a legal standpoint the Silver Springs situation is different from an enclosed mall situation. The developer in SS cannot "lease" a public street that cuts through the developed mall space, as a matter of fact I'd like to see the developer's reaction when there is an injury-producing car accident caused by a faulty street light on "its" street and someone wants the developer to pony up. My strong bet is that the street instantly becomes "public" property subject to the governmental immunity laws. And who enforces township ordinances on the "leased" street? hehehe.<p>And yes Brad, I have a law degree too.

[Brad_]

I know you do, Andy. Thanks for the thoughtful analysis....

[Uhooru]

Well working on the lit side of Muni law firm, you're probably right, but there was this weird language in the discussion about the public entity "abandoning" the street? Did I see that right? How does that effect things. And in fact, here in California, when public improvements are being created and the City or municipality turns a site over to a construction company, the contract definately calls for indemnification of the site until the Public entity accepts the improvements. Yes, the City still gets sued, but most times the contractor ends up indemnifying the City and assuming the defense.

 

And Andy, you know that the liability situation would be "complicated". It could depend on whether the theory of liability is based on dangerous condition based on design, or on maintenance. If its on maintenance, than responsibility could very well fall on the lessee if there is indemnity language in the contract and/or they have accepted responsibility for maintaining the street in the contract. Could you imagine there not being such language? Yes they will then scream that its "public right of way", then the games begin. So if the county abandoned the street as part of an agreement with this company with the proviso that the public gets acsess to use it. It becomes not such a simple clear cut question as to what rights are held and or granted. Just being devils advocate here. It would be fun to have a "shoot" out there. They got the guns, we got the rangefinders...(or whatever)

[robert_m_johnson]

"It would be fun to have a "shoot" out there"

 

It could be like Gandhi. One of you gets smacked in the head with a billy club, another brave photographer moves forward to takes his/her place. After they smash a few hundred heads we would shurley get the right to take a pic there! :-)

[robert_m_johnson]

takes = take

[Uncle Goose]

The next thing there are after are your eyes, to prevent you to take "mental images".

[daniel_smith6]

"Every law about rights is about stopping governments and powerful people from taking those rights away from those who can't fight for themselves."

 

Haven't read much gun and free speech legislation lately, have you?

 

As for public/private access, it could be worse. Salt Lake City sold part of their Main Street to the Mormon Church with the stipulation and agreement that all 'rights' would remain the same and access would be open. After the sale was completed the Mormon Church then changed the rules on the public and now limits speech, access, dress and denies any agreement for open access was ever made. Silver Springs is mild in comparison to these religions Nazis.

[akochanowski]

For $400 you can have my attention for a whole hour, Brad. Actually, for you make it $500.

[yankfan]

For those of us who are 'legalese challenged' (I'm 58 here guys, gimmee some slack), is it or is it not legal to take pictures on the street in question?

Thanks ;-)

[thomas_sullivan]

Daniel....I did preface that statement with "....or is suppose to work".

[randy_santos]

To many opinions based upon incorrect assunptions.

 

Brad is absolutely correct, This is not the City of Silver Spring we are talking about. Silver Spring covers a huge area, I live in Silver Spring but am at least 4 miles North of Downtown Silver Spring. I had my Commercial Studio in Downtown Silver Spring for 10 years so I'm familiar with the area.

 

This is not even a "street" we are talking about. It is a former street that through redevelopement has been turned into a pedestrian street/walkway. Just as Brad said, basically an outdoor mall made to look like a quaint village/town thing that just happens to have Starbucks, Coldstone Creamery, Buckets'o'Noodles, and whatever else they have in those things. I've only really been there twice, I'm not so into that sort of environment but it's actually quite nice and a big improvement over what was there, a street where you could buy rock at any hour.

 

It's an outdoor mall, a pedestrian walkway lined with shops and restaurants managed by the Peterson(?) Corp. Not a street.

There is no ban that I am aware of on any street in Silver Spring, Montgomery CO, or MD.

 

I don't particularly care for over zealous security guards or restrictions, rules or laws in general. I'm certainly bot endorsing their policy. Just wanted make sure you understand what this place is and that Brad has is right,

[thomas_sullivan]

so....Randy..........if that street is not public, why is there a lease from the County to the Company.

[michael s.]

<< ... is it or is it not legal to take pictures on the street in question? ... >> <p>

 

That's not always as easy a question as it would appear to be, John ... even for lawyers. :-) <p>

 

Here's a follow-up <a href=http://www.washingtonpost.com/wp-dyn/content/article/2007/06/20/AR2007062002354.html>"Washington Post" column by Marc Fisher</a>, who I believe is not related to Barry Fisher (posts above). If Marc Fisher's source is correct, the answer may well be that unlike on an ordinary public street, we're dealing here with what may look like a street, but is actually a privately managed property (akin to a mall) where the property manager makes the rules, and hence can make and enforce rules considerably more restrictive than would pass muster on a public street in the U.S.<p>

 

Fisher's column says:<p>

 

<<< ... They [Peterson Cos] set and enforce rules that would never pass legal muster on a public street. Political candidates have been stopped from handing out fliers. And photographers such as Py are regularly stopped and told to move along.<p>

 

That is Peterson's right, says Gary Stith, director of the county government's office in Silver Spring. "It's like any other shopping center," he says. "The street was vacated by the county and is leased to the developer. We wanted them to maintain and manage the area." ... >>><p>

 

By way of a postscript, Fisher reports that Peterson Cos evidently granted Py permission to take photos, and he's evidently posted some on flickr. I'm not sure which ones they are (not that it necessarily matters), but from another article I see that <a href=http://flickr.com/photos/14364534@N00/>this is Py's page on flickr</a>, and <a href=http://flickr.com/search/?q=censorship&w=14364534%40N00>these are a couple photos</a> relating to media coverage of the controversy.

[randy_santos]

I didn't say it was public or not public. I don't pretend to know or care about any lease arrangements. Just wanted to cler up what I perceived to be some misconceptions on what this thing is, and not a "street" btw.

[john_elder1]

I have looked at the 2 pictures taken by Py as referenced in Michael's post. In the first pictire in the upper left corner are 2 public transportation buses. There is public parking on the public street in the B+W picture. Further Montgomery County law requires public access. County police patrol Ellsworth Drive, the street in question. I stand by my opinion: anyone can excercise their Constitutional Rights on Ellsworth Drive. This situation is controlled by the United States Supreme Court Decision: Marsh v. Alabama,326 US 501

[john_elder1]

Having stated my opinion, I believe the best and safest way to exercise your right to photograph is to aquire a Judicial Opinion. That is bring a federal civil rights action against the comapny and the county. That way you don't get knocked around by some ignorant security guard or shot by some pyscohpathic cop, or have your new M8 confiscated and destroyed by some idiot with a badge. This situation looks like it is getting a fair amount of publicity. Its not a bad idea for someone in the Silver Springs area to contact the ACLU. If the ACLU takes the case, they will probably want a local plaintiff. Even if filed in federal court the case would be litigated in Maryland. If I was licensed in Maryland and didn't live in a different state making it totaly impracticle for me to handle this case, I would do it Pro Bono. I am sure that if Silver Spring photographers do some local research, they can find a good lawyer to handle this situation. However , your first call should be to the ACLU. The Local Media, might want to get involved. Perhaps AP might want to get involved. Photogs in the street probably won't cure the problem. What you need is heat on the "POWERS" that be.

[michael s.]

John, those are photos of the media coverage of the controversy. I don't know that area and therefore can't say whether they were taken on or near Ellsworth.<p>

 

Parenthetically, in my area some public buses actually stop in shopping center parking lots, but I would doubt that fact alone would be determinative -- or even terribly significant -- in a First Amendment case.<p>

 

I'm familiar with <a href=http://www.law.cornell.edu/supct/html/historics/USSC_CR_0326_0501_ZO.html>Marsh v. Alabama</a>, a 1946 U.S. Supreme Court case that declared unconstitutional a prohibition against distribution of religious literature on a street in a company-owned town.<p>

 

While the decision in Marsh would have to be part of the discussion here, I'm just not sure it would control. In Marsh, the entire town center, while it had the look and feel of an ordinary town, was in fact owned by Gulf Shipbuilding Corp. Hence the town's prohibition essentially rendered the entire downtown area the virtual opposite of a "free speech zone" -- closer to a "speech free zone" you might say. That blanket prohibition was easy for the Court to strike down under prior decisions. The single street in Silver Spring, leased to and managed by a private entity, presents a different case in my view.<p>

 

Incidentally, after today's Supreme Court decisions, who knows how much weight will be accorded any of the old cases. :-)