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Thursday, May 29, 2003  

Whose space is it anyhow?
Part I: Starbucks, the mall and 'third places'

Dustin at One Man's Opinion has been thinking, rather lengthily, about a topic I have given some thought to myself -- space. Not outer space, though that is an interesting subject, too. The use of public space, whether it is publicly or privately owned, can be fascinating.

Dustin is interested in a concept he calls "third-placeness."

So what's a third place? The rise of industrialized labour (including the service sector) over the course of the 19th century was paralleled by a new focus on the division of space into public and private spheres. Against the pressures of the "public" world of politics and commerce, the family and home were constructed as an asylum of sorts, a place where even the lowliest working man and we are speaking here, for the most part, of men, despite the large numbers of women in the workforce) could escape the dramas of workaday life. Likewise, the home as a site of consumption was opposed to the workplace as site of production: at home, a man was free to enjoy the fruits of his labour.

The first time I recall focusing on the uses of public space was when we were studying the seminal Supreme Court case Lloyd Corp. v. Tanner, 407 U.S. 551 (1972,) and its precedents and progeny in law school. (When I first visited Lloyd Center, which is here in Portland, I found myself looking at it through that lens, though the network of buildings has changed substantially in the 31 years since the case was decided.) Lloyd considered whether political protesters have a right to distribute handbills on private property.

Respondents sought to distribute handbills in the interior mall area of petitioner's large privately owned shopping center. Petitioner had a strict no-handbilling rule. Petitioner's security guards requested respondents under threat of arrest to stop the handbilling, suggesting that they could resume their activities on the public streets and sidewalks adjacent to but outside the center, which respondents did. Respondents, claiming that petitioner's action violated their First Amendment rights, thereafter brought this action for injunctive and declaratory relief.

In two previous cases involving uses of public spaces, SCOTUS had ruled in favor of the public, pamphleteers and labor picketers. Lloyd was the first of a series of cases to allow private owners of public spaces to implement more control over them.

Held: There has been no dedication of petitioner's privately owned and operated shopping center to public use so as to entitle respondents to exercise First Amendment rights therein that are unrelated to the center's operations; and petitioner's property did not lose its private character and its right to protection under the Fourteenth Amendment merely because the public is generally invited to use it for the purpose of doing business with petitioner's tenants. The facts in this case are significantly different from those in Marsh[v. Alabama, 326 U.S. 501 (1946) found here], supra, which involved a company town with "all the attributes" of a municipality, and [Food Employees v.] Logan Valley, [391 U.S. 308 (1968) found here] supra, which involved labor picketing designed to convey a message to patrons of a particular store, so located in the center of a large private enclave as to preclude other reasonable access to store patrons. Under the circumstances present in this case, where the handbilling was unrelated to any activity within the center and where respondents had adequate alternative means of communication, the courts below erred in holding those decisions controlling. Pp. 556-570.

We discussed an outcome of current policy, the arrest of a man wearing an anti-war tee shirt at a mall, at several blogs earlier this year.

According to Dustin, third places became gathering places for small groups and a kind of midground between private (the home) and public (the workplace). He also says third places disappeared after World War II, a position I find dubious. Changed? Yes. Disappeared? I don't think so. Dustin identifies the Internet as a modern version of the third place. I am more inclined to think of it as an adjunct. Real third places, or privately owned public spaces as I've usually described them, include shopping malls, bars, restaurants, cafes. bowling alleys, amusement parks, the movies . . . even the gym, in my opinion.

The late '80s began to see an upsurge in coffee houses, wine bars, brew pubs, and other post-Yuppie third places. At the same time, marketeers began more consciously exploiting the sociality of such places as part of corporate branding efforts. Among the most successful of these establishments was Starbucks, at the same time fueling and exploiting a newly-developed taste for gourmet specialty coffees. ALthough a number of factors played into Starbucks' success--most notably the disaggregation of the American mass market into an ever-multiplying array of micro-niche markets), among them is their self-conscious efforts at creating third places where coffee-drinking would provide the focus for social existence.

Dustin asserts that the commercialization of privately owned public spaces such as Starbucks limits their usage by allowing the owner to control what can occur within them. He cites Starbucks' policy against allowing patrons to take pictures inside its cafes as an example. (I discussed that unreasonable policy briefly last week, here.)

I agree that some aspects of owners' control of third places are detrimental to the idealized use of such places Dustin entertains visions of. However, as someone someone who has studied property law I know there have always been restrictions on how people can use space, both public and private. The halcyon gathering places he envisions probably never really existed.

Blogger William Slawski of Bragadocchio decided to challenge a local Starbuck's about barring the taking of photographs in its coffee houses.

Well, I brought my camera. I snapped a picture of the barrista and then gave her an order for a chai. It wasn't until after she took my order, and my money, and made my drink that she informed me that I was to not take any pictures inside Starbucks.

There are almost a dozen or so places in town that are within a three minute drive which I could stop at for a cup of java. There's only one where I think they would get upset if I took a picture inside. I understand Starbucks' need and desire to protect their corporate secrets. I hope they understand my need to go some place where people are more important than corporate policies.

He could confront the Starbucks Corp. more aggressively. However, I doubt any individual challenging the policy will make much progress.

Another epiphany about public spaces occurred for me one day at the Seattle Public Library. I had use of office space there as part of the city's program to support its writers. Our niches were quite nice. Set apart from the rest of the library in a spacious glass and cedar enclosure, they consisted of carrels with full-size desks, lockable drawers, file cabinets and outlets for our laptops and modems. The writers who used the office spaces each received his or her own set af keys. We could go there anytime we wanted during library hours. I considered the program to be an excellent use of public space.

But, outside of our island of peace and order, the library had become a mess. A significant population of Seattle's homeless used it as a flop house, spending their entire day there. In some areas of the stacks, the smell alone was enough to keep anyone from seeking out a book. Library patrons increasingly stopped using the library, preferring to order books to be sent to their homes for a small fee, or picking them up at the desk after library workers had gathered them. Whatever it took to avoid being inside the library for long. The situation came to a head when a homeless man was discovered to have been molesting children behind bookshelves.

This anecdote demonstrates why it is necessary to have some authority police third places. Since various kinds of abuses are so common to human nature, someone has to decide what is an isn't acceptable behavior. My position in regard to the public library is it should be used by people who go there to do library-oriented things -- read, research, check out books, surf the Web and, of course, write. It is not a homeless shelter and Seattle's should not have been allowed to turn into a de facto gathering place for the homeless. Some people are going to respond that the homeless are also citizens, so they have a right to use any sort of public space. I agree. Everyone has a right to use a public facility for its purpose. Libraries as libraries, but not as bathrooms. City parks as parks, but not as camping grounds. It is when behavior exceeds the boundaries of the purpose for which a space exists that problems arise. Seattle had set up a network of drop-in centers for the homeless. They were the proper place for that population to gather, not the public library.

Those are examples of uses of publicly owned public spaces. The legal distinction to be made is that the government is held to a higher standard when it owns and operates a public space than the private sector is. However, in the real world, the same rules apply to public and privately owned public spaces most of the time, in my opinion.

I don't have a problem with private owners barring behavior that is beyond the purpose of the site. For example, Portland reportedly has more topless bars per capita than any other city in the United States. There must be a lot of topless dancers here. However, if one of them were to remove her blouse and perform at Starbucks, I believe management would be justified in asking her to leave. Dustin, a rather idealistic sort, may disagree on the grounds an impromptu dance performance is just the kind of thing to break up the monotony of a 'commercialized' environment.

I am not giving Starbucks carte blanc for excluding any activity it chooses, however. The no photographs policy is unacceptable because it is capricious, serving no goal that furthers the purpose of Starbucks as either a business of a privately owned public gathering place. (I don't accept Starbucks' alleged reason for barring picture taking -- to prevent spying on its environment by competitors, decades after it began doing business. Anything anyone wants to know about its setup is known by now.) The shopper should not have been excluded from the mall for wearing his anti-war tee shirt for the same reason. And, I would say the same about a pro-war tee shirt. As long as the person is not causing a disruption or otherwise breaking the law in the mall, I don't think there is a rational basis for excluding him.

I believe there will always be tensions between the public and the owners or operators of third spaces, both public and private. The way to decide who should prevail is to ask if the activity in question is somehow at odds with the purpose of the site.

A forbidden photograph

A happy Starbucks barista smiles for the camera.


I've added Part I to the title of this entry because there will be at least two entries on the topic.

10:21 AM