Photography Banned in Downtown Rockville, Maryland

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It's Silver Spring all over again.

Several weeks ago, local Washington, DC area photographer Chip Py was taking photographs in downtown Silver Spring, Maryland, when he was told by a security guard that photography was not allowed. Py was taking photos on Ellsworth Drive, a quasi-public street leased by the Montgomery County government to the Peterson Company, a development company.

On May 4, 2007 a similar incident occurred in Rockville, Maryland, when Drew Powell, a candidate for mayor of Rockville, was taking photographs of his son in front of the Rockville public library in the Rockville Town Center.  Powell was almost immediately approached by a security guard who told Powell that he couldn't take photographs there.

Powell reported the incident on the DC Photo Rights Flickr group:

"Within seconds, I was approached by a uniformed security guard, who instructed me to stop taking pictures at once. He stated he was instructed by the security company that he works for and ultimately the security company’s client, Rockville Town Center/Federal Realty Investment Trust, (FRIT) that there is a policy of no photography anywhere on the grounds of Rockville Town Center or Rockville Town Square (Plaza). I asked what would happen if I continued to take photos, and the security guard stated that he would summon the Rockville City Police and have me arrested for trespassing. I asked for his badge number and/or name and he gave me his card."

The Rockville newspaper, The Sentinel, reported that FRIT has no specific written policy about photography.  Publicly, FRIT appears to be concerned about commercial photography.  According to Vikki Kayne, FRIT's vice president of marketing and corporate communications, "There is no written policy per se, but we're not going to let someone come in and take commercial pictures that they could turn around and sell."  When asked by the Sentinel reporter Drew Pierson about non-commercial photography, Kayne said, "We don't have a written policy so I don't really want to comment on that."

Rockville Town Center cost $352 to develop; $88 million came from taxpayer money.  As with Ellsworth Drive in Silver Spring, the Rockville Town Square is connected to the rest of the city by public streets on either side.  The Town Square is considered by the city of Rockville, Maryland to be a public place.

Like the Peterson Company, just a few miles away in Silver Spring, the company that manages this public space, Federal Realty Investment Trust, thinks that it has the right to bar photography.  The city of Rockville and FRIT are discussing the legality of allowing photography.  While there are a number of court decisions about what happens to civil rights when a public space is leased or ceded to a private enterprise, and while every situation is slightly different, the main legal principle is that civil rights, especially including first amendment rights, may not be abridged in quasi-public, quasi-private places.  The guiding case is First Unitarian Church of  Salt Lake City v. Salt Lake City Corporation, Corporation of The Presiding Bishop of The Church of Jesus Christ of Latter-Day Saints, in which the city of Salt Lake gave a part of downtown to the Morman Church.  The United States District Court for the District of Utah ruled that "We hold here that the City, not the Church, has responsibility for regulating speech on the easement."

The Court was clear and unequivocal in its decision, which is worth reading.  Here are some excerpts:

"In a traditional public forum, the government's power to restrict expressive conduct is very limited.  For the state to enforce a content-based exclusion it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.  In public fora, the government may not prohibit all communicative activity.
             
"The restrictions here virtually ban speech because, as we pointed out above,  the City and LDS Church maintain that the public has no speech rights whatsoever on the easement except as the Church may permit, which amounts to the same thing.  As such, the restrictions are invalid.  The Supreme Court has held such broad bans invalid even under a nonpublic forum analysis.

"The City contends that acquiescing to the LDS Church's demand to control speech on the easement was necessary to obtain the Church's agreement to buy the property.  That may be true, but the City may not exchange the public's constitutional rights even for other public benefits such as the revenue from the sale, and certainly may not provide a public space or passage conditioned on a private actor's desire that that space be expression-free.

"We remind the City that '[t]he First Amendment is a limitation on government, not a grant of power.'  ISKON, 505 U.S. at 695 (Kennedy, J., concurring in judgment).  The City's attempt to create a public throughway but withhold speech rights on that throughway is ineffectual simply because the City has attempted to exercise power the First Amendment does not afford."

You can read the text of the decision here.

You can view the Town Center here.  One difference between the Silver Spring and Rockville cases is that in the Rockville Town Center there's a public library, a governmental facility, where first amendment rights can be exercised.  

Drew Powell calls his being stopped from taking a photograph of his son in front of the public library an affront to Constitutional rights.  He writes, "To sum up the May 4, 2007 incident: A U.S. citizen and taxpaying resident of Rockville was denied his First Amendment rights under the U.S. Constitution, while standing on public land, paid for with citizen tax dollars, by a guard contracted by surrogates of local government, who is also paid with tax dollars."

For more information:

DC Photo Rights Flickr group

Marc Fisher's article about photography in the Rockville Town Center

The Legal Rights of Photographers

First Unitarian Church Of  Salt Lake City v. Salt Lake City Corporation, Corporation Of The  Presiding Bishop Of The  Church Of Jesus Christ Of  Latter-Day Saints  

Sentinel article about photography in the Rockville Town Center

An analysis of the right to assemble on private property  (The cases mentioned in this article differ from the Silver Spring and Rockville incidents, but the article discusses some important and useful case law.)