Of Photos, Protests, Partnerships, and Public Places

Public-private partnerships have become increasingly popular methods of financing infrastructure and redevelopment projects. The structure of such partnerships is simple: the government supplies the land and a private company builds and maintains a highway or development that benefits the public. Not too far from College Park, the Commonwealth of Virginia has struck deals with private companies to build and maintain highways in exchange for toll revenue (e.g. the Greenway, I-81). Montgomery County has partnered with private developers to create large projects to revitalize downtown Silver Spring (Ellsworth Drive) and downtown Rockville (Rockville Town Square). Here in College Park, the East Campus redevelopment project is a public-private partnership between the University and the Foulger-Pratt development company.

Town Center RulesPublic-private partnerships are good vehicles for providing public goods with little or no expense to the taxpayer. These hybrid partnerships become controversial, however, when private interests conflict with public interests. One such controversy erupted in downtown Silver Spring this summer. The project, developed as a public-private partnership between Montgomery County and the Peterson Companies, is centered on Ellsworth Drive, a street that now serves as a pedestrian mall in downtown Silver Spring. Guards of the developer allegedly stopped a resident from taking photographs on the street. The developer’s assertion that it had the right to limit photography on the street provoked the ire of local photographers, who asserted that Ellsworth Drive is a public place where photography cannot be prohibited outright. This is an especially relevant contention since Foulger-Pratt, the developer chosen for East Campus, is part of the development team that tried to limit photography on Ellsworth Drive.

With symbolic timing, dozens of photographers gathered on Ellsworth on July 4th to assert their right to photograph in a public place. Cleverly, the developer moved quickly to diffuse the situation by holding a photo contest the same day. The Montgomery County Attorney eventually determined that the provisions of the public-private partnership classified the streets and plazas as “Public Use Space,” (Sec. 59-A-2.1, Zoning Ord.) rendering the controversy moot. In a public place, photography, leafleting and demonstrations are a public right (even if permitting procedures are required). The controversy ended quickly as the terms of the partnership clearly stated the public’s continuing claim to the space.

Not All News is Good News
It is often considered good business to avoid controversy. Union labor on strike, animal rights campaigners handing out leaflets, and disgruntled customers are all bad for business. Business owners who may be targeted by these groups will feel motivated to squelch the criticism, even if that means demanding the removal of the protesters from public sidewalks. Likewise, a street protest that closes the street may hurt business for the day (though it also may attract the business of protesters, too). Either way, many business owners wisely prefer to avoid such risk.

Other motivations exist, too. Since this is Washington, and terrorism currently ranks high on the zeitgeist, a “culture of no” has developed over public photography, motivated by the presumption that a passing tourist or curious photography student is really casing the place for his next suicide bombing. It’s quite likely that a photograph that happens to include the steam plant on East Campus could leave the campus police, well, steamed. For whatever reason (though probably not out of fear of terrorism) the developers in Silver Spring (and then the developers in downtown Rockville) tried to restrict photography on what they considered to be private property.

Since the danger of losing public rights in public spaces is a distinct possibility, the community needs clear agreements on the right of public access in public-private partnerships. The University’s commitment to the freedom of speech is tepid at best, and it is important for students and citizens alike to reaffirm the public’s right in public spaces. Thus, streets, squares and parks on East Campus should be treated as any American public space, with full rights of assembly and public enjoyment. Consequently, neither the University nor the developer should distinguish between University-affiliated groups and non-University-affiliated groups. College Park residents (and all Americans, to boot) who have nothing to do with the University should be entitled to the same access that students and student groups enjoy.

In Federal Circuit Court, the University of Maryland successfully argued that the campus is not a typical public forum and thus the University is not obliged to treat the campus as a full public space. The court opinion held that the campus is a “limited public forum,” and is “devoted to [the] mission of public education,” unlike the typical street, sidewalk, or park. Nonetheless, the University’s own request for proposals (RFP) for East Campus stated the desire to make East Campus a creature significantly different from the rest of campus: the RFP requires proposed developments be open to people and private businesses not affiliated with the university. In fact, the University stated that the residences for East Campus are “not intended to be a predominantly student housing community.” The RFP also demands “high quality public spaces” and that any development should “draw visitors and patrons, not only from the College Park Campus, but from the region and surrounding communities as well.” (our emphasis)

Though we are not lawyers, it appears to us that the University’s own RFP has set some of the legal groundwork for a guaranteed public claim on this space: these RFP development requirements seemingly disqualify any East Campus public spaces from the speech limitations the University has successfully imposed for the rest of campus. However, the University should issue a more definitive policy reconfirming its intention to make East Campus a full public forum like every other American street and park.

This request for clarification should not be construed as opposition to public-private partnerships. Indeed, these partnerships can produce massive public benefits that governments cannot or should not finance. Though we eagerly anticipate the benefits that this development will bring to College Park and the University of Maryland, it is only prudent to establish from the outset that the public retains ownership of public spaces (though not private buildings) on public land and that the private partner has no veto power concerning the rights of peaceable assembly in the public space. After all, the best college towns have that degree of spontaneity that only unemployed college students have the free time to produce!

4 thoughts on “Of Photos, Protests, Partnerships, and Public Places”

  1. I have a question about our public-private with Foulger Pratt. What is the situation with the land specifically? Are we leasing it to them for money? Do we own it, but are letting them use it for free? Did we sell it to them? Did we give it to them?

    I hope that the University still owns/controls the land.

  2. As I recall the proposal is for a 70-year lease. Remember the final deal is still being negotiated. Anything can still happen. The University will ask for a number of things from Foulger Pratt. Whatever happens will have to be viewed as a win-win for a variety of players (the University, Foulger Pratt, the City and the County).

  3. The Rockville Town Square was developed with a public-private partnership but the streets and the square itself remain completely public (as Just Up The Pike examined last summer.) So long as the University owns the land on which East Campus is built, that makes it public, right? Or, at the least, if new streets are created, they are made fully public.

  4. Thecourtyard,

    Creating new streets on campus property does not necessarily make them fully public. A Federal court, as noted in the post, has upheld the University’s speech restrictions on campus, since the entire campus is considered a “limited public forum”. However, this court ruling was issued before the East Campus plan was even announced. The features of campus that the court cited in its decision (that the campus has a solely academic mission, that its streets were not meant for pass-through traffic, etc.) do not seem to apply to East Campus, as the RFP requirements suggest.

    My point is that the University needs to set an explicit policy on public access for East Campus before some innocent photographer or unpopular campaigner is harassed and an imbroglio ensues. It will happen; better to settle it now in a public process than later on in court.

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