These developments challenge the traditional conception of property rights as being an absolute prerogative of the owner. Under the traditional conception of private law, an owner should be free to grant access to anyone s/he likes. Countries have not answered the problem the same way: here we will look at the US, the UK and Germany. Have they given weight to the social function of property law, that could include a dedication of these spaces to their political use, as a place where free speech, freedom of assembly, should be at least possible?
We will see that among the three countries, the UK stands apart as a country that continues to give the right of property primacy over competing liberties, although the situation in the US is now mixed.
The horizontal application of fundamental rights in the United States and Germany
In the US, the Supreme Court has evolved. After first upholding free speech against private owners, it has revised its position before defederalizing the question: now it is up to the States to decide.
However, in 1972, in Lloyd v Tanner, the majority upheld a different position giving more weight to the property right of a mall against the distribution of leaflets against the war in Vietnam. The same happened in 1976.
As a result, some States like California decided to amend their Constitutions to introduce free speech protections against private mall owners. This led the Supreme Court to hold in a case of 1980 that the question was now for the States to decide. Five states now uphold the protection of free speech in malls: Massachusetts, Washington, California, Colorado and New Jersey.
The situation is therefore mixed in the United States and it is up to States to decide the hierarchy they wish to establish between the competing rights of free speech and property.
In Germany the position of the Federal Constitutional Court is becoming clearer and clearer. In the Fraport decision of 2011 the Court articulated the way it intends to resolve the dispute between freedom of assembly and the right of property. Fraport is a private company operating airports. The majority of the shares of the Fraport company are owned by public bodies (the Land of Hesse and the City of Frankfurt am Main). Someone who wanted to protest against the deportation of foreigners was banned from doing so on the airport’s premises. The FCC decided in favour of free speech. The basis of the reasoning is that the State cannot exempt itself from the protection of human rights by taking a private form.
The question remains whether such a protection would be afforded should the company be completely private. The Court hinted in the case that the solution could be the same.
We have another clue, albeit from an interim case, which does not have the same authority. In Passau, there is the Nibelungenplatz, by the railway station. It is open to the public and nothing distinguishes it from a normal place. Its private owner decided to ban alcohol consumption. A protest was then organized against the privatisation of the place. The protest was about gathering everyone with a can of beer and, at the signal, drinking it. The motto being: “Für die Freiheit - Trinkt aus!” (“For Freedom, Bottoms Up”). The owner banned the protest. The Court was asked to deliver an interim decision on the ban. It held that the communicative function of streets and public places is today complemented by new forums like malls or places designed and managed by private companies. Freedom of assembly cannot be banned from these spaces (BvQ 25/15).
German constitutional law is therefore at the forefront for the protection of free speech between individuals.
The position in the United Kingdom: the primacy of property
Conversely, in the UK, the right of property remains absolute. However Kevin Gray argued in 1999 that in some common law jurisdictions a principle of reasonable access could be emerging.
While it is true that demographic, social, economic and technological developments are changing the ways in which people move around and come into contact with each other, the Court is not persuaded that this requires the automatic creation of rights of entry to private property, or even, necessarily, to all publicly owned property (government offices and ministries, for instance). Where, however, the bar on access to property has the effect of preventing any effective exercise of freedom of expression or it can be said that the essence of the right has been destroyed, the Court would not exclude that a positive obligation could arise for the State to protect the enjoyment of the Convention rights by regulating property rights. A corporate town where the entire municipality is controlled by a private body might be an example (see Marsh v. Alabama).
In comparison to Germany, neither the UK nor the ECHR seems sensitive to the importance of upholding free speech.
However, Kevin Gray has contended that: “many jurisdictions have nowadays come to recognise it as extraordinary that a venerable common law doctrine of possessory control, once invoked to uphold the individual's immunity from state intrusion into his home and his personal affairs, should now be employed to support an unconstrained corporate power arbitrarily to exclude ordinary citizens from such ‘quasi-public’ areas as the common parts of a privately owned shopping mall or civic commercial complex”. He argued that a principle of reasonable access had come to be recognized in some common law jurisdictions, but not yet in England, and, as noted by Tim Koch in his recent blog post, the English position does not yet seem to have changed.
In sum, the United Kingdom has remained attached to a traditional conception of property. Germany has adopted the opposite view and the US is in the middle.
For a free speech covenant
The proposal we would like to make here attempts to strike a balance between the competing rights by proposing a contract whereby all public bodies in charge of giving authorization to build a mall or a public space should be obliged to require the developer to commit themselves to protect free speech on these spaces and leave their property open. Conservation covenants are currently in discussion in the UK (Environment Bill 2019-20). Section 107 of the Bill provides that the obligation under a conservation covenant runs with the land and therefore binds successors in title to and persons deriving title from the original landowner (s.107(2)(b)).
The advantage of the covenant is that the duty is attached to the property and therefore lasts even if there are changes of ownership.
All the particulars of the covenants are still to be established but the model of the conservation covenant could be applied here for the purpose of protecting the public sphere from arbitrary interference by private landowners.
This post comes from research commissioned by the French Ministry of Justice. The French version was written by me and two PhD students: Rocio Del Pilar Trujillo Sosa and Clément Topuz.
How to cite this blog post (Harvard style)
Perroud, T. (2020). Privately-Owned Public Spaces: A Comparative Study of the Legal Responses to Their Development and A Proposal for Reform. Available at: https://www.law.ox.ac.uk/research-and-subject-groups/property-law/blog/2020/03/privately-owned-public-spaces-comparative (Accessed [date]).