The rise of POPS (privately-owned public space) is a common feature of the contemporary city in the western world. For London, the Guardian has documented all the places in the city that are now in private hands and public awareness was raised when, in New York as well as London, the Occupy movements were evicted from their chosen public places. Malls have become new public forums but in private hands, so it is no wonder that many cases deal with access to such spaces. Also, new urban law techniques like the zoning bonus in the US have actually given developers a hand on public spaces around the place they are building. These developments have blurred the lines between the public and the private in the contemporary urban space, a line that liberalism drew to protect different spheres of human activity, especially the political and the commercial.

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.

In a first decision, of 1946, Marsh v Alabama, Jehovah’s Witnesses were going from door to door in a private city before being asked to leave. The Supreme Court in this decision decided to protect free speech against the private corporation owning the city. Justice Brown said: “Ownership does not always mean absolute dominion. The more an owner for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it”. Other cases uphold this position.

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.

In several cases UK courts upheld the rights of mall owners or an owner of POPS against freedom of assembly and even freedom of movement. For example, the Court of Appeal upheld a ban of a group of young people (some of them black) from the Swangate shopping centre, which took up a large part of their home town of Wellingborough (CIN Properties Ltd v Rawlins [1995]  2  EGLR  130). A later prominent case led the  ECHR to have a say. In Appleby v The UK a group of green activists distributed leaflets in a private mall to protest against a development project in Washington, in Tyne and Wear.  The ECHR stated:

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.

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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.

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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]).