“As a last resort, I said, “I thought we were on the public sidewalk here.” He smiled a wry smile and took me by the arm to the street side of the upraised wood platform eight feet above the traffic below, pointed over the edge to a thin ribbon of concrete at street level inches from moving traffic. “That,” he said emphatically, “is the public sidewalk.”
Back in December the Fulton County Superior Court declared Atlanta’s vendor ordinance unconstitutional for granting an exclusive monopoly to LaSalle, LLC to “use and occupy” all public property vending sites. The Georgia Constitution allows a municipality to do this, but only if given permission by the legislature. Atlanta’s charter does not give the city this right; therefore the legislature never granted the city this authority. Though the decision was cheered by many, it does nothing to prevent the occurrence of this situation in the future. Allowing a private company to manage public spaces raises many free speech and public forum concerns. Though the ordinance could be considered relatively docile by many (not by the vendors) in that it doesn’t call for any real significant abdication of power by the government, it still presents an interesting situation in which to explore 1st Amendment concepts.
The Superior Court’s decision brings to light the common occurrence of governments contracting with private companies to administer government services. Most of the time this benefits everyone; a private company can usually do something better, cheaper, and more efficiently than the government and this ultimately results in better service and lower costs. This is usually fine for more administrative government functions such as managing student loans and operating red light cameras. However, it becomes a problem when the government contracts away its role as the manager of core fundamental First Amendment rights.
Atlanta gave LaSalle the ability to manage who can operate and advertise on public streets and sidewalks. When the government contracts with a company to provide red light camera service, the company simply snaps pictures and mails them to the police for interpretation. In this case, a private company is deciding who is allowed to exercise commercial speech rights in some of our most protected forums for free speech. LaSalle may be able to manage this more efficiently than the government, but when management involves balancing basic constitutional rights with corporate profits we need to draw the line.
The Supreme Court has repeatedly recognized the importance of protecting free speech and protecting public forums as a means of exercising our speech. Though other countries may surpass us on other civil liberties and individual rights afforded to citizens, America has always been the greatest protector of free speech rights and the ability to exercise those rights. As a piece of government property that is easily accessible, offers extensive visibility, and is traditionally viewed as a place devoted to free speech, sidewalks are given great protection by the Supreme Court. As a society we view sidewalks as important gathering places for everyone; restrictions should only be used for the most important of interests. Though the Court allows governments to regulate commercial speech to a greater extent than other speech, regulations of commercial speech must still further a substantial government interest and be the least restrictive means of furthering this interest. This is intermediate scrutiny for the court; not quite the strict scrutiny required for the regulation of most speech, but still substantial.
The ordinance that was struck down simply allows the city to grant exclusive use to a vendor, but the reality is that LaSalle manages who can and cannot vend on the street. Atlanta tried to make this point to prove that it was not giving an exclusive monopoly; LaSalle is simply managing the process and therefore they don’t actually have exclusive use of all the public vending areas. This, of course, is ridiculous because 1.) at any time LaSalle could theoretically decide to use the property solely for themselves and 2.) managing who can and cannot use public property is a more significant problem because it usurps the government’s ability to do so. Though LaSalle still has to follow all the criteria laid out in the ordinance and they ultimately come under the authority of the city, they are still making the initial decision of who can and cannot use public property. Government can do this too, but the process the government uses (zoning and permits) cannot be applied arbitrarily and comes under significant scrutiny.
Instead of the government granting permits to vendors, LaSalle is allowed to make decisions based on their own private desires. The ordinance states that the party the city contracts with (LaSalle) has the power to “choose the persons with whom it wishes to contract for the operation of public vending sites.” Later the ordinance states that the contract (the contract granting LaSalle exclusive authority) shall set forth the city’s policy on the type of advertising allowed to “maximize the revenue potential for the city, the vending management company, and the vendors.” So the contract manages commercial speech (advertising) through the lens of maximizing profits for LaSalle and allows LaSalle to choose the vendors without the standard permit process used by the government! Though the government does have more power to regulate commercial speech than other types of speech, it is still the government – elected officials – making the decision and those decisions must be based on balancing the speech rights with the welfare of the community, not with the profits of a company.
LaSalle still comes under the authority of the government and they don’t have nearly as much leeway as they would with the management of private property, but giving a private company the first stab at managing public forums is concerning. Sidewalks are considered one of the most fundamental areas for free expression and are recognized as an essential element of a healthy democratic society. Even though we may not like some of the speech or activity that occurs in public forums from time to time, we recognize the overall importance of allowing this activity to occur. Hal Rothman, in his excellent book “Neon Metropolis” (from which the opening quote to this post was taken*), explores the meaning of public places through the context of Las Vegas. In one section of the book Rothman ponders the next phase of the 1960’s individual rights revolution; upon discovering the almost complete lack of public sidewalks in Las Vegas (most on the strip are owned by the casinos) he states “Las Vegas is a funny place to discover the next stage of this revolution: the transformation of the idea of “freedom to” into “freedom from.”*
In an effort to make government administration more efficient we are allowing private companies to realize Rothman’s fear and potentially impose their own will on our public spaces. Allowing one company to determine who gets to operate businesses on public property and tying free speech rights to that company’s profit margin circumvents the precautions we have put into place to protect free expression and public forums. Though Atlanta’s ordinance isn’t quite the same as privately-owned sidewalks, which provide no free speech rights, it invites us to ask questions about the importance and management of public forums and free speech.
* Hal Rothman, Neon Metropolis: how Las Vegas Started the Twenty-First Century, 90 (2003)
Update: Atlanta has a new program for issuing street vendor permits that does not involve a private company.
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