Brave New Neighborhoods

The Privatization of Public Space

Margaret Kohn

• Publisher: Routledge
• Year: 2004
• ISBN:
  9781135944599
• Edition: 1
• Topic: Politik & Internationale Beziehungen
• Subtopic: Politik

Fighting for First Amendment rights is as popular a pastime as ever, but just because you can get on your soapbox doesn't mean anyone will be there to listen. Town squares have emptied out as shoppers decamp for the megamalls; gated communities keep pesky signature gathering activists away; even most internet chatrooms are run by the major media companies. Brave New Neighborhood s considers what can be done to protect and revitalize our public spaces.

1: INTRODUCTION

On March 3, 2003, a lawyer named Stephen Downs was arrested for trespassing at the Crossgate Mall in Guilderland, New York, a small town near Albany. He did not sneak into the mall after hours or enter some “employees only” part of the property. He was arrested for wearing a T-shirt that he purchased at the mall with the slogan “Give Peace a Chance.” On the eve of the war with Iraq, the message was too political for the mall. Security guards ordered Downs to either take off the T-shirt or leave the premises. When he refused, they summoned local police and he was taken away in handcuffs. This was not an isolated incident.¹ Although the charges were later dropped after a local protest and international uproar, the management did not change its official policy against political expression on mall property.²

According to Downs, the security guards tried to convince him to comply with their orders, arguing that the mall was “like a private house” and therefore he was acting inappropriately.³ Downs believed that his right to political expression was protected by the First Amendment to the United States Constitution. His mistake, however, was trying to exercise this right in a privately owned place. In the landmark decision Lloyd Corp. v. Tanner (1972), the Supreme Court found that the right to free speech only extends to activity on public not private property.⁴ The reason is that the Bill of Rights states that “Congress shall make no law…abridging the freedom of speech….” Over the course of the twentieth century, this provision has been interpreted expansively to apply to all levels of government but the debate about whether to apply the First Amendment to some private entities remains unresolved. In Lloyd Corp., the Supreme Court rejected the argument that shopping malls are the modern equivalents of old town centers and should therefore be treated like public places. But the secu-rity guards were wrong in asserting that the mall was “like a private house.” In a subsequent decision, Pruneyard v. Robbins (1980), the Supreme Court recognized that a shopping mall, unlike a home or private club, issues an invitation to the general public and therefore opens itself up to certain kinds of regulations.⁵ This means that political speech in publicly accessible but privately owned places, although not protected by the United States Constitution, could be protected by state statutes.

The incident at the Crossgate Mall is emblematic of restrictions on political expression proliferating across the United States. It illustrates the political impact of the privatization of public space. If someone cannot wear a T-shirt emblazoned with a Hallmarkesque endorsement of world peace, then it is hard to imagine union picketers or antisweatshop activists being able to target the Nike or Disney stores at the mall. Even activities that do not challenge commercial practices, for example, gathering signatures on behalf of political candidates and ballot initiatives, are routinely forbidden in malls. When private spaces replace public gathering places, the opportunities for political conversation are diminished. Ironically, just as new malls are increasingly designed to recreate the atmosphere of old-fashioned downtowns, they are restricting the civic, political, and religious activity that gave city centers their dynamism and variety.

Mall managers are not the only ones using property rights to limit the circulation of heterodox views. In California, an apartment complex prohibited the tenants’ association from distributing a newsletter under the doors of residents (see Chapter 5). In Maryland, the United States Postal Service had members of a political organization arrested for handing out literature on a sidewalk in front of the post office (see Chapter 3).⁶ In Utah, Salt Lake City sold a block of the downtown core to the Church of Jesus Christ of Latter-Day Saints, which subsequently banned nonsanctioned political and religious activity on the public-private plaza (see Chapter 6). Each of these cases poses similar questions about the relationship among private ownership, public space, and political activity.

In this book I argue that public life is undermined by the growing phenomenon of private government. Gated communities proliferate in the suburbs and Business Improvement Districts—now numbering over one thousand in the United States alone— create privileged zones within the city. Furthermore, the suburban shopping mall, a private alternative to the marketplace and the town square, has been so successful that it has become the model for retail development in city cen-ters. This book considers how these changes affect democratic politics. It asks what can be done to protect and revitalize public space. There are two different approaches to this question. Some commentators call for more civility and vigorous enforcement of community norms in the form of policing and laws against begging and loitering.⁷ Others take the opposite tack, arguing that the vitality of public space comes from its diversity, heterogeneity, and even its disruptive quality.⁸ The two opposing views have been forcefully articulated in a series of American and Canadian legal cases that highlight the tensions among private ownership, the public sphere, and “outsider politics.”⁹ Drawing upon political theory, cultural analysis, and free speech jurisprudence, this book shows why the disappearance of public space has negative consequences for democratic politics. But before delving into the details of this argument, I want to provide an overview of the three themes that link the various examples of privatization.

SPACE, SPEECH, AND DEMOCRACY

This book shows how the privatization of public space undermines the opportunities for free speech.¹⁰ Although there is a fairly strong consensus that opportunities for political criticism, organization, and dissent are vital for a democratic polity, the dependence of free speech upon spatial practices is not always clear. The usual rationale for free speech goes something like this: free speech protects the circulation of dissenting ideas that can challenge orthodoxy and, perhaps, limit the despotic exercise of power. Free speech is crucial because it facilitates exposure to a wide range of arguments and makes it possible for citizens¹¹ to reach informed decisions about public policy. Furthermore, free speech is essential if the minority is to have the opportunity to convince members of the majority of its dissenting views and build a coalition in favor of change.¹²

Yet the widespread support for free speech in liberal democracies often belies an underlying discomfort with face-to-face politics. We see this every day when the impatient businessman ignores a leafletter or the homemaker peers out the window and decides not to open the door for a campaign volunteer. Overwhelmed by telemarketing, junk mail, and a constant barrage of sales pitches, many citizens have become deeply resistant to political solicitation. Furthermore, a theoretical commitment to protecting free speech can go hand in hand with a desire to avoid exposure to unfamiliar ideas and unwanted responsibilities. The privatization of public space makes it easy to sustain this theoretical commitment to free speech while shielding oneself from political provocation.

The United States Constitution requires careful scrutiny of restrictions on political expression in public places. But this scrutiny only extends to the actions of government actors and state agencies. The Constitution was written at a time when citizens were particularly concerned with the despotic potential of government and less attentive to insidious effects of private power. This means that a private property owner may, under most circumstances, ban political speech or discriminate against certain viewpoints on his property, even if it is open for use by the general public.

These restrictions threaten the variation and diversity of collective life. The loss, however, is political as well as aesthetic. Public sidewalks and streets are practically the only remaining sites for unscripted political activity. They are places where citizens gather signatures for ballot initiatives, workers publicize their grievances, and church groups distribute Bibles. The face-to-face encounters that take place in public are different from interactions via email or the mass media. Face-to-face political debate allows citizens to ask questions and challenge answers. Furthermore, the politics of public space requires few resources and therefore allows marginal viewpoints to be expressed, debated, and, perhaps, refuted.

Our commitment to free speech requires us to reconsider the spatial practices that can either enhance or inhibit that freedom. Most important, a proper understanding of the connection between spatial practices and freedom of speech should alert us to the dangers entailed by the erosion of public space.

PRIVATIZATION AND POLITICAL ACTIVITY

It is practically a truism to say that the disappearance of public space is caused by privatization. But what exactly is privatization? It can involve several related processes. Privatization, in the narrow sense, describes the sale of state-owned assets to individuals or corporations. This happened in Salt Lake City when the municipality sold a block of down-town to the Church of Jesus Christ of Latter-Day Saints (see Chapter 5). Such direct sales, however, are fairly uncommon. Usually, the process is indirect; private ownership comes to predominate as commercial spaces such as shopping malls and theme parks gradually replace public places such as town squares. Some people feel that this change simply reflects consumers’ preferences; others suggest that preferences are themselves determined by economic structures. According to this logic, people go to the mall because there is nowhere else to go. Suburban malls proved more profitable than traditional town centers because of cheap land, plentiful parking, and economies of scale. Shopping malls may have survived because they were the “fittest” according to purely economic criteria but that does not mean that they are preferable from a civic or aesthetic point of view.¹³

Regardless of whether one views the malling of America as a cause for celebration or alarm, it is important to recognize that it has distinctive political consequences. Privately owned places—unlike their stateowned equivalents—are not obliged to allow religious activity or political speech. As more of our lives are lived in privately owned places, the opportunity for certain types of political activity decreases.

Commodification is also part of the broader process that I am calling privatization. Commodification occurs when something is turned into an object that can be bought or sold. Most privately owned common spaces are part of profit-making ventures and are therefore treated as commodities; theme parks charge entrance fees and shopping malls carefully calculate how much “public” space is necessary to draw customers into adjacent stores. But state-owned spaces can also be commodified. In June 2003, for example, Toronto inaugurated a new public plaza in the heart of downtown; in order to pay for two 24hour security guards, city officials decided to rent it out for concerts and other commercial events. Big corporations have paid tens of thousands of dollars to emblazon their logos on Times Square-style digital billboards while citizens were arrested for drawing peace signs in chalk on the plaza.¹⁴ This process is so widespread that commentators have coined the term “café-creep” to describe the way that commercial ventures are gradually taking over more and more public space But the profit motive is not the only thing driving the disappearance of public space. Another dimension of privatization is a desire for control that cannot simply be reduced to commodification. An example of this phenomenon is a 1998 United States Postal Service regulation prohibiting citizen groups from gathering signatures for the initiative and referendum process on sidewalks in front of post offices. The Post Office did not need this sidewalk space to sell extra stamps. Nevertheless, it passed a rule forbidding citizens from soliciting signatures and passing out leaflets. Emboldened by a Supreme Court decision limiting expressive conduct in airports, the lower courts have also begun to restrict the use of government property for protest activity. On May 21, 2001 the Hotel Workers Union (HERE) was denied a permit to stage a protest on Lincoln Center Plaza; United States District Judge Kevin Duffy found that “the plaza was not automatically a public forum because of its park designation and physical characteristics as a public congregating area.”¹⁵

Justice Duffy's view, however, is controversial. The courts have developed two opposing approaches to public space. The earlier one assumed that the government in its role as property owner has all of the same rights as any private individual. According to this “property rights” approach, public space is basically private space owned by the government, and therefore the responsible bureaucracy has discretion to regulate or forbid citizens’ access. The latter view—the “traditional public forum doctrine”— ostensibly governs today. This doctrine emphasizes the government's responsibility for protecting citizens’ access to public places such as parks and street corners that have traditionally been used for political activity. But the influence of the property rights approach is still apparent as judicial decision-makers have narrowed the range of spaces that are protected as public forums.

The example of the postal service regulation is especially sobering because it has serious consequences for one of the few mechanisms of direct democracy: the initiative and referendum process. The regulations target nondisruptive political activity on government property. Before the new rule was passed in 1998, groups petitioning outside the building were already forbidden from disrupting postal service business; the new regulation excluded them altogether. The initiative and referendum process, while hardly the full realization of radical democracy, is an important alternative to the remote processes of representative government.¹⁶ It provides an opportunity to educate voters about issues and to integrate politics into everyday life.

Access to public space is the linchpin of the initiative and referendum process. In an age when many people live in apartment complexes or gated communities where solicitation is prohibited, public space is the only opportunity for encountering campaign workers.¹⁷ Privatization of public space is not only a social or aesthetic issue. Access to public space is important because public forums are used to communicate ideas to allies and adversaries through techniques such as street speaking, demonstrations, picketing, leafletting, and petitioning. The face-to-face politics that takes place in public places requires no resources except perseverance and energy. Although there are many other sources of political information such as television advertisements and direct mail, these other forms of communication do not allow the citizen to answer back, ask a question, or take immediate action. The street-speaker or petitioner may not be as influential as the mass media or back-room power brokers but public space provides a forum for dissenters who would otherwise be silenced.

The post office regulation is emblematic of a widespread tendency for public places to try to mimic the strategies that have made malls and amusement parks so popular. Essentially it reflects the desire to apply the logic of the private sphere—control over access and use—to public space.¹⁸ Privacy involves the ability to regulate access to a space, excluding some and including others. According to modern conceptions of property rights, ownership also implies control over the range of permissible uses. The saying, “My home is my castle,” captures this convergence of privacy and sovereignty. The fantasy of the private realm involves intimacy, safety, and control. According to this fantasy, the home is imagined as a place where the unfamiliar is absent and compromise unnecessary.¹⁹ In a private house one can arrange things the way one wants them. In public she is confronted by visible reminders of the fact that others may want different things.

The preoc...