Privatizing public places - Free speech on private streets

The Washington Post columnist by Marc Fisher has a companion blog and today he writes, in, "Shuttered Shutterbugs: When Downtown Is Private Property," about how Peterson Companies in Silver Spring own some of the seemingly public streets, and bar photography. While the company is "reconsidering" their policy according to the article, we were discussing a similar issue on the urbanists e-list last fall and this is something that a lawyer, Doris Goldstein, wrote, in a conversation about shopping malls being held as private spaces where Constitutional rights to speech and assembly are not maintained, that seems to be quite relevant to public-like streets:

[t]here is a US Supreme Court case from 1976, in the middle of the shopping mall cases, called Marsh v. Alabama, which found that the privately-owned company town of Chicksaw, Alabama, could not prohibit distribution of religious materials by a Jehovah's witness on a street in the town's business district.

Marsh holds significance for new urbanist developers, as it was distinguished from the shopping mall cases in the dissent to Food Employees v. Logan Plaza, with the following language:

"The question is, Under what circumstances can private property be treated as though it were public? The answer that Marsh gives is when that property has taken on all the attributes of a town, i.e., residential buildings, streets, a system of sewers, a sewage disposal plant and a business block on which business places are situated."

So as far as the US Supreme Court goes, shopping malls are private, but "private" towns may not be. (This email is from October 2006 on the e-list urbanists@listserv.nd.edu)

2. I've argued that Buiness Improvement Districts (which I support) should have a publicly appointed citizen or two on their boards, appointed outside of the BID-controlled nomination process, to provide for citizen input into the fundamental privatization of public spaces.

3. This policy of Peterson Companies should be noted and they should be dinged in terms of DC contracts (they won't be, that's not how things work in the city, even though Peterson Companies has snatched The Awakening sculpture from Hains Point and is building the National Harbor in Prince George's County, which will cause economic harm--from a competitive standpoint--to DC) including the Washington Gateway project off South Dakota Avenue NE. See "Retail center in NE powers forward," from the Washington Business Journal for more about this project.

4. Note that at the top of the long section of links in the right sidebar are longstanding links to the Constitution of the United States and the Photographer's Bill of Rights.