A Stitch in Haste

"When we balance the Constitutional rights of owners of property against those of the people to enjoy freedom of press and religion, as we must here, we remain mindful of the fact that the latter occupy a preferred position."
--Marsh v. Alabama, 326 U.S. 501 (1946)

Behold the reincarnation of the company town:

Chip Py, a longtime resident of Silver Spring [Maryland], recently returned to an old interest in photography. While wandering through downtown after eating lunch there last week, he took out his camera and started to take shots of the contrast between the tops of the office buildings and the sparkling blue sky.

Within seconds, a private security guard was at Py's side, informing him that picture-taking is not permitted, no explanation given.

"I am on a city street, in a public place," Py replied. "Taking pictures is a right that I have, protected by the First Amendment."

The problem is that it is no longer clear whether Downtown Silver Spring (note the uppercase "D") comprises "city streets" —

Peterson Cos., the developer that built the new downtown ... told Py that although Ellsworth Drive — where many of the downtown's shops and eateries are located — may look like a public street, it is actually treated as private property, controlled by Peterson.

I of course repeatedly advocate stronger legal respect for private property, whether it's a bar owner deciding whether to allow smoking, a restaurant owner deciding whether to cook with trans fat, a parking lot owner deciding whether to ban guns or a homeowners association deciding whether to ban flag displays (or, of course, Suzette Kelo). And if Downtown Silver Spring were truly "private property," then I would be more sympathetic to Peterson Companies.

But this property is far from "private" —

Montgomery County had made a huge public investment in the new downtown. County tax dollars accounted for $100 million of the $400 million it took to transform the area. "There's all kinds of county activities there, promoted by county money. How could this be private?" [Py said.]

The same question bothers County Council member Marc Elrich. "Considering the county paid for it, it ought to be a public space," he says. "We invest a lot of police time and county resources there."

Exactly right. It is the height of hypocritical hubris to take $100 million from taxpayers to fund 25% of your development and then turn around and insist that it is "private property" subject to your extra-constitutional whim.

We recently witnessed a similar conundrum in Las Vegas, where another public-private "partnership" (i.e., a taxpayer subsidy to a politically connected rent seeker) to revitalize the downtown area — but as supposedly "private" property — nearly resulted in unconstitutional restrictions on free speech — until a federal appellate court rightly intervened.

It's quite simple really: Street is as street does. Especially where taxpayer money is involved. It is well-settled law that a "company town" is a state actor subject to the same constitutional strictures as a "taxpayer town." So how can a perverse hybrid of the two not be as well?

UPDATE: Opponents of the no-photography rule staged a mass camera-armed protest on Independence Day.