The Right and Wrong Ways to Sell a Public Forum

• Author: John C. Crees
• Position: J.D. Candidate, The University of Iowa College of Law, 2009; B.A., The University of Iowa, 2004. I thank all my family, friends, and colleagues who have helped me along the way.
• Pages: 02

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I Introduction

Many different factors determine whether a court considers particular land public or private for the purposes of First Amendment rights. This distinction is critical in deciding what conduct a government can prohibit on the land. In a recent dispute in Silver Spring, Maryland, Montgomery County, this very issue arose. During the summer of 2007, Chip Py, an amateur photographer, was on a street in downtown Silver Spring, Maryland, taking pictures of recently renovated buildings.¹ Private security guards employed by the building management company told Py that he was on private property and was not allowed to take pictures without the company's consent.² Py felt the company's actions violated his First Amendment rights.³ The management company argued that by leasing the street from the City of Silver Spring as part of a development agreement, the street was privatized and was no longer a public forum, and therefore Py should not receive the heightened protection that courts grant when speech occurs in a public forum.⁴ After learning that Py had contacted the Montgomery County Executive and was organizing a protest scheduled for the Fourth of July, the management company released a new policy allowing photography. ⁵ Had a court construed the lease as transforming the property into a private forum, the management company would have been free to exclude Py. In contrast, the management company complied with the conclusion of the Montgomery County Attorney's office that the lease did not change the forum status, and the street remained a public forum. ⁶

This incident illustrates the conflicting interests of private actors regulating property and citizens exercising their free-speech rights. one way to resolve such a conflict is to have citizens vote on the matter. Most likely, if citizens would have had the opportunity to vote on the issue in a referendum, they still would have approved the lease and the outcome would have been the same regarding Chip Py's photography. A referendum, Page 1422 however, would have put more citizens on notice of what was happening in their town and would have further legitimized development in their city.

Regardless of whether a transaction involves a referendum, the Supreme Court's First Amendment jurisprudence ultimately determines whether the property is considered public or private. The Supreme Court has held that "[w]herever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions."⁷ The Court balances these citizen rights against permissible municipality action. Although citizens have strong free-speech rights in public forums such as streets, sidewalks, and parks, a municipality can sell these forums without consulting the citizens entitled to their use.⁸

This Note presents situations where courts have voided sales of public forums.⁹ Although selling a public forum is not a new development and has many advantages and disadvantages,¹⁰ making the sale contingent on a referendum would further legitimize the sale, prevent future litigation, and ensure that a majority of the people favor the sale.¹¹ Additionally, if selling a forum was a mistake, eminent-domain powers provide a suitable method for converting the forum from private back to public. ¹²

A forum analysis begins with the understanding that courts determine a forum's free-speech status. Whether courts classify a forum as public or private is extremely important in determining what conduct a government Page 1423 can prohibit within the forum.¹³ Courts can classify government-owned property as public, limited (or designated) public, or nonpublic.¹⁴ If the property is designated as private, the owner has wide latitude to prohibit free speech.¹⁵ In rare situations, however, if the privately owned property functions as a state actor, courts will deem it a public forum. ¹⁶

When courts classify a forum as public or private, they balance different factors, which can lead to uncertain results.¹⁷ If a private entity wants its newly acquired property to be treated as a private forum, physical changes that distinguish the forum from the surrounding area may help it gain that distinction.¹⁸ The forum's history, such as whether it was previously open to the public, is also important in determining its current status.¹⁹ Thus, to some private actors' dismay, merely holding title to the property does not definitively create a private forum.²⁰ Courts have already addressed these issues regarding various kinds of property;²¹ however, in the future, courts Page 1424 will likely face more First Amendment challenges regarding property sold, or merely leased, to private entities.²² This Note focuses on whether a municipality selling a public forum creates a private forum by action of the sale and whether such a sale should be subject to a referendum. ²³

II Background

The privatization of public property has always been a contentious issue in America and will likely not dissipate in the future.²⁴ From towns created by large employers to gated communities run by homeowners' organizations, ambiguities have long existed regarding what First Amendment rights people have on certain properties that courts could consider private or public.²⁵ Although there are many advantages and disadvantages of privately owned streets, sidewalks, and parks,²⁶municipalities must tread a fine line between respecting the rights of the private landowner and upholding the First Amendment rights of the public. ²⁷ This balance sometimes tips in favor of the public when the private landowner is considered a state actor²⁸ or when a state constitution provides additional rights not found in the U.S. Constitution.

A Private Streets, Sidewalks, And Parks: Company Towns And Gated Communities

Private streets, sidewalks, and parks have existed for decades in various forms, notably in privately owned company towns.²⁹ In company towns, "[t]he companies hired private police forces, banned literature and speech that challenged company dictates, and evicted employees who failed to be Page 1425 compliant." ³⁰ Providing services traditionally administered by the government-such as building and road maintenance, fire protection, and health services-insulated company towns from some government regulation. ³¹ New Deal legislation and Supreme Court rulings in the 1930s and 1940s, however, put an end to company towns. ³²

Today, private streets and sidewalks are pervasive in common-interest communities ("gated communities"), such as condominiums, cooperatives, gated communities, and planned communities, where members of the community are contractually bound by covenants, conditions, and restrictions. ³³ Currently, one out of eight Americans lives in a gated community; some of these gated communities restrict activity on their streets that would be legal on a public street, including political protest and literature distribution. ³⁴ Further, some gated communities "exercise authority over a network of streets, parking lots, open space, and recreational facilities" and "provide services such as street cleaning, trash collection, maintenance of open space, and security."³⁵ However, courts are split regarding whether these organizations are state actors or private entities.³⁶ If courts consider a gated community to be a state actor, the First Amendment applies and the gated community must permit many activities.³⁷ Conversely, if courts consider a gated community not to be a state actor, the forum remains private and the government gives the owner wide latitude to regulate speech in the gated community. ³⁸ Thus, the state-actor requirement is one of the many pitfalls that will prevent courts from Page 1426 classifying privately owned land as a private forum instead of a public forum. ³⁹

B The Advantages Of Privatization

There are strong long-term and short-term incentives for a municipality to privatize streets, sidewalks, and parks. By selling one of these properties to a private actor, a municipality would initially reap the benefit of the sale price, which could reach into the millions of dollars.⁴⁰ Furthermore, privatized property could relieve the municipality of maintaining the space because the new private owner assumes duties such as cleaning, repairs, and security. ⁴¹

If the municipality is concerned with giving up too much control over these traditional public forums, the sales contract could include provisions that would allow the forum to remain public while allowing the municipality to reap the benefits of the sale. For instance, a municipality could reap the monetary benefits of the sale but prevent the property from becoming a private forum by retaining maintenance responsibilities.⁴² If a municipality wanted to create a private forum while maintaining some property interests, it could retain certain future interests, such as a right of reversion, that do not trigger free-speech protections.⁴³ A municipality could also sell the forum and keep the property as a public forum by retaining a constitutionally cognizable...