Brave New Neighborhoods: the Privatization of Public Space
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Brave New Neighborhoods Brave New Neighborhoods THE PRIVATIZATION OF PUBLIC SPACE Margaret Kohn ROUTLEDGE NEW YORK AND LONDON Published in 2004 by Routledge 29 W 35th Street New York, NY 10001 http://www.routledge- ny.com/ Published in Great Britain by Routledge 11 New Fetter Lane London EC4P 4EE http://www.routledge.co.uk/ Copyright © 2004 by Taylor & Francis Books, Inc. Routledge is an imprint of the Taylor & Francis Group. This edition published in the Taylor & Francis e-Library, 2005. “ To purchase your own copy of this or any of Taylor & Francis or Routledge’s collection of thousands of eBooks please go to http://www.ebookstore.tandf.co.uk/.” All rights reserved. No part of this book may be reprinted or reproduced or utilized in any form or by any electronic, mechanical, or other means now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission from the publishers. 10 9 8 7 6 5 4 3 2 1 Library of Congress Cataloging-in-Publication Data for this book is available from the Library of Congress ISBN 0-203-49511-X Master e-book ISBN ISBN 0-203-60373-7 (Adobe e-reader Format) ISBN 0-41594-462-7 (Print Edition) ISBN 0-41594-463-5 (pbk.) ACKNOWLEDGMENTS The research for this book was made possible by an Andrew W.Mellon Fellowship for Junior Faculty from the American Council of Learned Societies and leave time from the University of Florida. I would like to thank the Department of Political Science at the University of Toronto, where I was affiliated during my leave. Members of the Committee for the Study of Political Thought (Toronto) and the Urban Studies Program at York University provided useful feedback on parts of the manuscript. I am particularly grateful to the following people, who commented on individual chapters or drew my attention to interesting illustrations of the privatization of public space: Leslie Paul Thiele, Keally McBride, Joe Carens, Melissa Williams, Simone Chambers, Asma Abbas, Neal Katyal, Ronald Beiner, Stephen Elkin, Patricia Wood, Engin Isin, Dan Smith, Ana Kogl, Patricia Woods, Aida Hozic, and Mark Belnick. The final version owes a lot to Ryan Hurl who read the entire manuscript. This book emerged out of a short article that I wrote for Dissent several years ago. Without the interest and support of Eric Nelson, my editor at Routledge, it probably would never have taken the form of a book. I am also grateful to David McBride who took over the project early in the editing stage. LIST OF ILLUSTRATIONS 2.1 Demonstration in Central Park. 28 3.1 Designated Public Forum in Muir Woods, California. 40 6.1 Haile Plantation, Gainesville, Florida. 98 6.2 A house on Bertmount Avenue, Toronto. 99 7.1 Guardhouse, Battery Park City, New York. 114 7.2 The Upper Room by Ned Smyth, Battery Park City, New York. 117 TABLE OF CONTENTS Chapter 1 Introduction 1 Chapter 2 Weapons of the Wobblies: The Street-Speaking Fights 18 Chapter 3 The Public Forum Doctrine 36 Chapter 4 The Mauling of Public Space 54 Chapter 5 God, Caesar, and the Constitution 72 Chapter 6 Brave New Neighborhoods 89 Chapter 7 Battery Park City 109 Chapter 8 Homeless-Free Zones: Three Critiques 130 Chapter 9 Conclusion: Three Rationales for the Provision of Public Goods 147 Chapter 10 Afterword: No Central Park in Cyberspace 161 Index 174 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 Brave new neighborhoods 2 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 Introduction 3 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.