CONTENTS

INTRODUCTION 1

CHAPTER 1 PUBLIC SPACES 6

CHAPTER 2 DEVELOPMENT OF HYBRID SPACE 9

CHAPTER 3 CONCEPTUAL MODEL 22

CHAPTER 4 THE STREET GOES TO THE SUBURBS 29

CHAPTER 5 CONSEQUENCES OF PRIVATIZATION 43

CHAPTER 6 CASE STUDY 59

CONCLUSION 80

REFERENCES 81

1

INTRODUCTION

The post-modern city is a term beloved by academics but obscure to the wider world.

Nonetheless, it is relevant to this discussion as it provides a definition for the complex social,

political, economic and technological transformation that has accompanied the decline of

industry and the rise of the new economy. Just as modernism saw the city as the canvas upon

which industrial change was writ large, so the post-modern city provides the context for the

social, economic and cultural changes brought about by the globalised new economy. At the

forefront of these changes is the growing privatisation of the public realm. Advocates of

publicly accessible space often argue that providing such space is necessary for creating a safe,

viable, and sustainable urban environment.(1) Despite (or because of) these lofty but

somewhat vague goals, publicly accessible spaces tend to enjoy broad-based support from

groups and interests that may otherwise be at odds. This should not come as a surprise as

publicly accessible space simultaneously serves myriad functions and needs. Historically, urban

reformers, city planners, and municipal officials since the 19th century have claimed that public

space serves a number of social and political ends (Schmidt, 2008). Early designers like Frederic

Law Olmsted argued that parks would serve public health needs by acting as the `lungs of the

city' and providing access to clean air. Olmsted dismissed fixed class-based cultural divisions

and was convinced of the value of class intermixing, arguing that parks, among other public

institutions, would help integrate various social, ethnic, and economic classes (Schmidt, 2008).

Around the same time, park advocates and urban reformers such as John Nolan argued that

parks would increase the morality and civility of humans. In addition to these revised historical

justifications, contemporary advocates often defend publicly accessible spaces as essential

components of economic growth and development schemes, insofar as common spaces can

affect adjacent property values positively and attract local retail development (Carr et al, 1993;

Garvin, 2002).

Privately owned public spaces are frequently criticized for diminishing the publicness of public

space by restricting social interaction, constraining individual liberties, and excluding

undesirable populations. This study empirically determines whether, as is commonly believed,

2

privately owned public spaces are more controlled than publicly owned spaces. To frame our

empirical work, we propose a conceptual model that identifies publicness as the interaction

between the ownership, management, and uses/users of a space. We then examine the

management dimension using an observation-based index to assess spatial management

paradigms in publicly and privately owned spaces. We find that the use of the private sector to

provide publicly accessible space leads to increased control over use, behavior, and access.

Furthermore, while both publicly and privately owned public spaces tend equally to encourage

public use and access, managers of privately owned spaces tend to employ more features that

control behavior within those spaces. More specifically, spatial control in privately owned

spaces is normally achieved through the use of surveillance and policing techniques as well as

design measures that `code' spaces as private. Important findings are presented for planners,

policy makers, and others concerned with the future of publicly accessible spaces. (1) We use

the term `publicly accessible space'to signify all parks, plazas, squares, and atriums (both

publicly and privately owned).

Others argue that publicly accessible spaces serve as a means to reconnect with the natural

environment insofar as they provide places for recreation and respite from an otherwise

demanding urban environment (Project for Public Spaces, 2009). Much of the positive attention

paid to publicly accessible spaces also revolves around their purported ability to serve social

ends by allowing diverse populations to meet and interact (Miller, 2007). These spaces can

represent integral pieces of the urban physical fabric, connecting disparate neighborhoods and

encouraging interaction among an otherwise dissimilar constituency. These attributions are

often couched in the more abstract language of promoting democracy and civic virtue

(Benhabib, 1996; Habermas, 1984). Yet, in recent years, the provision of publicly accessible

space has been increasingly undertaken by the private sector, often at the encouragement of

overstretched, fiscally strained muncipal governments who attempt to meet demand for urban

open space by providing density bonuses and other incentives to the private sector in exchange

for the provision and maintenance of such spaces. Ceding the provision of public space to the

private sector as a matter of policy has been successful in greatly enlarging the amount of

publicly accessible space in major urban areas. For example, NewYork City has witnessed the

3

construction of 530 privately owned public spaces totaling 85 acres since the drafting of the

1961 Zoning Resolution (http://www.nyc.gov/html/dcp/html/ zone/zonehis.shtml), the

document which provided private developers with additional floor area if they provided a

publicly accessible space (Kayden, 2005). But, despite such tangible benefits, the provision of

publicly accessible space through private means is also problematic, characterized by complex

ownership patterns, enormous public and private expense, and more general concerns over

exactly how `public' such spaces really are. This criticism might also apply to traditional publicly

owned spaces, which are frequently criticized for advancing private interests at public expense

(Mitchell, 2003). The conventional wisdom is that management practices in privately owned

public spaces are more exclusionary and less transparent and accountable than those in

publicly owned spaces. But these critiques generally fall short on two counts. First, they tend to

interpret the `publicness' of publicly accessible spaces along ownership lines only. Critics often

characterize publicness as existing somewhere along a continuum from completely private

ownership at one end to completely public ownership at the other. Second, there has been

little in the way of formal, empirical, comparative analysis that would substantiate or refute

such claims regarding differing management styles in publicly and privately owned spaces. Most

existing work is limited to outlining broad theoretical or institutional differences between

management approaches in the two types of spaces (Kohn, 2004; Staeheli and Mitchell, 2008).

The purpose of this study is twofold. First, we produce a more comprehensive and robust

conceptual model of publicly accessible space, one that moves beyond categorizing space as

either publicly or privately owned. Second, we examine empirically differences in management

techniques in publicly versus privately owned spaces. Our aim is to contribute to the literature

on the privatization of public space by teasing out and assessing the actual impacts of this

phenomenon. We organize the paper as follows. We begin by outlining some of the dominant

critiques of privately owned public space and examine the popular assumption that managers

of these spaces tend to prioritize private interests over broader social concerns.We then

problematize the notion of a`good'or `ideal' public space and suggest a conceptual model that

identifies `publicness' along three distinct but interrelated dimensions: ownership,

management, and uses and users. Next, we scrutinize more closely the management axis by

4

using an observation-based index to assess spatial management paradigms and determine

whether publicly and privately owned spaces in New York City are managed differently.(2) We

find that significant differences exist between publicly and privately owned spaces both in the

degree of control and in the types of management approaches employed. Finally, we provide

recommendations to improve the existing regulatory framework governing privately owned

public spaces and highlight several potentially fruitful research avenues.

The post-modern city is also termed the post-Fordist city, so called after the decline of the mass

assembly lines of the car manufacturer. If Fordism – the age of the mass assembly line – symbolised the

collective consensus, post-Fordism is the era of the knowledge-based new economy. As a stereotype,

this city is characterised by growing polarisation and inequality between social groups, with soaring

wealth for those working in the high earning finance and IT sectors, in contrast with the millions on

sickness benefit and the growing numbers of homeless. Consequently commentators are increasingly

drawing parallels with the divisions of the Victorian period.

5

1. PUBLIC SPACES:

In urban planning, public space has historically been described as "open space", meaning the

streets, parks and recreation areas, plazas and other publicly owned and managed outdoor

spaces, as opposed to the private domain of housing and work. However, the recent evolutions

of the forms of urban settlement and the growing number and variety of semi-public spaces

managed by private-public or entirely private partnerships questions this notion inherited from

a legal perspective. Somehow today, public space needs to be understood as different from the

public domain of the state and its subdivisions, but rather as a space accessible to the public. In

terms of law, it is perhaps closer to the older concept of the "commons", although we have to

recognize that today, at least in the western world, every bit of land is now regulated by the

laws of property making it difficult to consider anything as common without encountering an

entitled owner and manager. In fact, the notion of public space is perhaps better captured by

the social sciences.

Here two separate conceptions have been until now leading an almost independent existence.

In political philosophy, the concept of the public has drawn an important inspiration from the

notions of the Greek agora and the Roman forum, taken as ideal models of public arenas where

the public affairs of the city are discussed among an assembly of equal citizens. In Ancient Greece

the agora or marketplace was the place where citizens came to meet, talk, trade and vote, intertwining

the concepts of democracy and citizenship with public space. But as citizenship rights in ancient Greek

democracy were only awarded to free, non-foreign men and denied to slaves, women and foreigners13

more than half the population were not part of this ‘public’, excluded from the arena for debate. Lack of

inclusion, then, as much as citizenship, has characterised the nature of ‘public’ space from the outset.

Access is therefore clearly a key component of public space, as is the question of who controls the

space, determining who is or is not allowed to use it. Of course, ownership too, while not always the

determining factor behind how a space is used and controlled, tends to play a central role. Today nearly

all space is owned by somebody – be it government, private organisations, private individuals or

financial institutions such as pension funds or international finance consortiums. For example, most

beaches and foreshores in the UK are owned by the Crown, while parks, apart from the Royal Parks,

tend to be owned by local authorities. The idea of ‘free space’ or ‘open plan’ space is occasionally

discussed, particularly as a utopian idea, but is rare in practice. As a generalisation government owned

6

space is often thought of as ‘public’, particularly public buildings, squares and parks. Such spaces have

also long been associated both with revolutionary political struggle and with exhibitions of state power,

Tianammen Square being a case in point, while in Paris the parks, squares and streets were the focus of

protest in 1789, 1871 and 1968. On the other hand, ‘the commons’ – land which people had common

rights to – which characterised much of the UK landscape before the enclosures of the 18th and 19th

century – is also associated with public space, particularly in a rural context. For Hannah Arendt

(1958), our western civilizations have only gone down since this golden age of democracy.

However, for Jürgen Habermas (1989) building on Immanuel Kant's work, forums of public

discussion have re-emerged in the 18th century under the guise of the bourgeois salons, thus

re-enacting a public sphere, of course less situated in space than the agora, but able to question

and challenge the actions of the monarchs and the state. However, this enlightened democracy

doesn't rest on the physical public spaces of the city. It is contained in private meeting rooms.

The only foray into publicly accessible space has been through the cafes and, more recently, on

the more visible but still placeless pages of the Internet. Can gathering places, from plazas to

cafés, be considered public according to this definition? Sociology has paid more attention to

the physical venues of the city and the daily interactions of the citizenry. More than the

possibility for a debate or a discourse, public space is measured according to its accessibility,

both physical and psychological (Joseph 1998). This notion enlarges significantly the scope of

places considered public to any space accessible to individuals, provided access is not based on

some membership. Thus, in addition to the classic spaces, such as streets and parks, a vast

array of spaces of mobility, such as transportation facilities (train and subway stations, airports,

highways, parking lots) or spaces of mass consumption (shopping malls for the most part) can

be analyzed according the criterion of sociology. Accessibility is what guarantees the free

circulation of persons and goods. It is also what allows the emergence of collective

representations wherefrom images of the city are produced. The challenge today for planners

and researchers on public space, lies mostly in the difficult encounter of these two main visions

of public space defended by the social sciences: the public sphere and the publicly accessible

spaces. The first one can be summed up by the concept of the conversation and debate

whereas the second one is best said as a question of mobility. The first one raises the important

and ever pressing question of participative democracy, whereas the second one lends more

7

attention to the idea of individual liberties, notably under the form of a "right to the city”. Both

of these approaches also touch upon the question of the form of the city and its

representations both for inhabitants and visitors, in terms of a quality of life, but also in the

realm of entrepreneurship and city management, under the pressure of urban competition

public space, I propose to review several questions raised by distinct forms of public spaces in

France and in the USA: the street, the commercial center, the café and the square, the train

station, and finally, the park. The "street" will help us examine the relationship between public

space and the form of the city. Commercial centers raise the question of accessibility and will

help us discuss the limits of public spaces managed by private owners. With train stations we

will explore the link between mobility and public space. The café and the square will illustrate

two specific forms of communication, the conversation and the demonstration, that will link the

political and philosophical dimensions of public space with the field of planning. Finally, we will

use parks to discuss design projects as "public problems" and the role of citizens' participation

in the design of the city.

1.1 WHY ARE PUBLIC SPACES SO IMPORTANT TODAY IN THE PRACTICE OF

URBAN PLANNING?

In the last 20 years, public spaces have acquired a renewed visibility in the French urban

planning world. Briefly put, the general opinion is that public spaces are an essential ingredient

to the sustainability of cities for political, social, economic, public health and biodiversity

reasons. However, the dominating trend observed by many is one of shrinkage rather than

expansion of the public realm. Diverse processes of privatization have given rise in the last half

century to an array of city forms less and less amenable to the daily co-presence of a diversity

of urbanites. Suburbanization and highways, "theme park development", technologies of

surveillance, shopping malls, gated communities and condominiums, all testify to an ongoing

enclosure of the urban world . Accordingly, global indicators of segregation (class, race and

ethnicity, gender) seem to show a worldwide growing separateness of the different categories

of the population.

8

2. THE DEVELOPMENT OF HYBRID SPACES

Now common in major cities, privately owned public spaces take many forms, from corporate

courtyards to pocket parks to festival marketplaces. These differ from traditional city streets,

sidewalks, or parks that are publicly owned and operated and are accessible to the entire

population (Franck and Paxson, 1989). Instead, privately owned public spaces are open to the

public during certain hours, but owners have the right to refuse entry to certain users at certain

times (Ne¨meth, 2009). First, private provision of publicly accessible space can relinquish

control to privateparties that may not have the broader public interest in mind. This lack of

accountability and public input into both the initial design and the subsequent management of

privately owned public spaces runs counter to recent developments in the planning profession

that emphasize broadly participatory processes. And since these spaces are rarely considered to

be traditional public forums, rights of free speech and assembly do not necessarily extend to

privately owned public spaces, limiting popular protest or political action (Ne¨meth, 2009).

The structure of urban space, seen as the physical manifestation of the idea of the public [cf.

Glasze 2001: 164] is changing. Incremental shifts can be seen between public and private

spaces, visibly manifested in built (fences, exclusive material), personal (security forces,

cleaners), and technical signs (cctv) [cf. Nissen 2006]. These processes generate ‘spaces of

hybrid character’, which have various mixtures of public and private structures, different

degrees of accessibility, and varying extents of usability. Below I summarize six levels of shifts

from public to private spaces: The new titles to public property discussed above result in

hybrids that affect the functions of urban spaces. The six gradations do not constitute singular

cases, but each stands as one example of a step towards the development of hybrid spaces. In

addition, they point to the consequences that arise when legal form is altered, in particular

changes in the public usability of spaces [Marcuse 2003] and changes in the function of urban

space as an ‘indispensable medium for the implementation of democratic and social rights’

[Glasze 2001: 163]. Despite empirical trends and widespread scientific viewpoint, and although

the use of privatization measures to achieve greater security and safety has been widely

questioned, we must acknowledge that people’s perceptions of the described developments do

9

not always match the factual degree of privatization. Many of the processes take place

unnoticed by citizens, travelers, customers or residents. People even accept being under covert

observation by cctv or security guards (in so far as they are even aware of being watched)

because they feel it may enhance safety and serves public order. Simplistic judgments, such as,

there is nothing to fear from cctv or other modes of increasing surveillance if you are not doing

anything wrong, are naive, as ‘this really depends on who is defining what is wrong’

[cf. Atkinson 2003: 1833].

10

2.1 PUBLIC-PRIVATE

The third theme that links these chapters is the attempt to clarify the meaning of the terms

“public” and “private.” Or to be more precise, this work challenges the adequacy of the

intuitive understandings of public and private space that we rely on when thinking about the

built environment. Most of the places that we share with strangers are neither public nor

private but exist in a gray area between the two.

In the past few years, some of the most thought-provoking critiques of privatization have come

from scholars writing about “the commons.” The core idea is that citizens collectively own an

array of resources that should not be exploited for private gain. The term “commons” a

somewhat archaic concept usually associated with precapitalist agriculture in England, is

artfully redeployed by these scholars to suggest that there is a populist alternative to the Scylla

and Charybdis of big government and corporate control. David Bollier, for example, describes

the commons as “the vast range of resources that the American people own.”24 In his book

Silent Theft he specifies that the commons includes “tangible assets such as public forests and

minerals, intangible wealth such as copyrights and patents, critical infrastructure such as the

Internet and government research and cultural resources such as the broadcast airwaves and

public spaces.” Lawrence Lessig defines the commons more broadly as a resource “in joint use

or possession to be held or enjoyed equally by a number of persons.”26 The examples that he

offers are (public) streets, parks, and beaches; Einstein’s theory of relativity; and creative works

that are in the public domain. There are good reasons for adopting the rhetoric of the

commons. The term is etymologically related to community, a word with largely positive

connotations whereas the alternative—public—is associated in many people’s minds with

bureaucratic red tape and inadequate government programs (public schools, public assistance,

public transit). The rhetoric of the commons also lends itself to a powerful critique of

privatization by way of historical analogy with the enclosure movement that transformed

English agriculture in the seventeenth and eighteenth centuries. Just as English lords enclosed

common lands in order to appropriate the resources for their personal enrichment,

contemporary corporations are privatizing common resources (scientific discoveries, natural

11

resources, public spaces) for their exclusive benefit. The rhetoric of the commons also makes it

possible to identify the similarities between otherwise unlike things that are all part of our

common wealth.

Despite these compelling features, I am hesitant to adopt the term commons and instead want

to defend the more familiar (but discredited) concept of the public. The main reason for my

choice of terminology is that the term commons can legitimately be applied to forms of joint

ownership that are still extremely elitist and exclusive. According to Lessig, “The commons is a

resource to which anyone within the relevant community has a right without obtaining the

permission of anyone else” (my emphasis). Although this definition may initially seem inclusive,

it can actually be very exclusive, at least in the cases where residential communities are

extremely stratified and segregated. The crucial caveat is that one must be a member of the

relevant community. Gated communities and other common interest developments often

provide extensive collective amenities for their residents: swimming pools, golf courses,

playgrounds, and so on. These amenities are available to all residents without obtaining

anyone’s permission and therefore meet Lessig’s definition of a commons. Yet, as indicated in

Chapter 6, these types of commons do not provide an alternative to the balkanization produced

by private interests or a solidaristic, egalitarian oasis within the market economy. The term

“commons” also erases the distinction between a number of different kinds of collective

property. The commons of a gated community is not the same as the Boston Common. We

need a language that helps us distinguish between apparently similar forms of collective

ownership that have very different social and political effects. The term “public”, however, is

not without problems. Previous commentators have drawn attention to the contradictory

dimensions of the term public.28 Jeff Weintraub has identified four different uses of the

public/private distinction that inform and often confuse political and scholarly discussions.

(1) In some contexts the terms “public” and “private” suggest the difference between the state

and the family, whereas

(2) in others they are synonyms for the state and the market economy.

12

(3) Political theorists influenced by Hannah Arendt use “public” to describe the political

community that is distinct from the economy, the household, and the administrative apparatus

of the state.

Finally cultural critics treat the public realm as the arena of sociability, a stage for appearing

before others.

The contradictory meanings of public space highlight the difficulty of defining the term “public.”

Intuitively we take public to mean open or accessible, yet many public buildings are not open to

all. Bureaucratic headquarters and military installations, for example, are owned by the

government but inaccessible to most citizens. These buildings are public in the sense outlined in

definitions one and two; they are owned by the state. Yet places that are owned and operated

under free market principles are sometimes also labeled “public.” For example, the antiquated

phrase “public house” refers to a tavern or restaurant, a place that is not owned by the

government but is widely accessible to the population at large. Even a tavern, however, is not

open to anyone without restrictions. Normally only paying customers may occupy a table or a

stool. Today, the private and public realms are becoming increasingly intertwined. In New York

City, zoning laws gave developers of skyscrapers special incentives in exchange for building

plazas and arcades. This has created a situation in which much of New York City’s public space is

privately owned. Conversely, streets in Times Square and in forty neighborhoods throughout

the city are now cleaned and policed by private companies. These companies are paid by

Business Improvement Districts, private governments that collect property tax-like assessments

that are approved by large property owners in elections that exclude tenants. Another example

of the hybridization of public and private space is the shopping mall, a place that is privately

owned but often uses its architectural vocabulary to suggest that it is an old-fashioned town

center. This progressive blurring of the boundaries makes it necessary to develop a flexible

definition of public space.

13

2.2 SEGREGATION AND PUBLIC SPACE

The second theme that emerges throughout the book is the claim that privatization reinforces

existing patterns of segregation. It makes it easier to ensure that business people do not

encounter street people, consumers do not confront citizens, and the rich do not see the poor.

Public spaces that fulfill the democratic promise of equality are disappearing while privately

owned zones of safety and corresponding zones of danger are proliferating. This process is

evident in the architecture of fear, a landscape of gated communities and fortress-like malls

policed by private security forces.

The design and regulation of the built environment can either reinforce or challenge existing

patterns of inclusion or exclusion. By structuring people’s perceptions, interactions, and

dispositions, spatial practices and architectural markers can mitigate or intensify ingrained

social dynamics. One of the purposes of public space is to create a shared set of symbols and

experiences that create solidarity between people who are separated by private interests.

The privatization of public space exacerbates the effects of racial and class segregation that

already exists in housing patterns. One illustration of this trend is the disappearance of public

recreational facilities. New, middle-class housing developments and condos often provide

common recreational facilities such as parks and playgrounds. These facilities are private and

accessible only to residents. Meanwhile, public alternatives—the places where black and white,

working class and middle class used to come together—are closed because of shrinking user

fees and weakening taxpayer support. Segregation is both a moral and a political problem.

From a moral perspective, it is unjust because it reinforces certain groups’ privileged access to

safer neighborhoods with better facilities and services. From a political perspective, the

problem is that segregation itself makes it difficult for members of privileged groups to

recognize the existence of injustice. It makes the reality of deprivation invisible to those who do

not live in zones of danger. Without exposure to deprivation or even difference, the privileged

become unable to recognize their own advantages and unlikely to question a system that

produces systematic disadvantages. As long as people live in economically or ethnically

homogeneous neighborhoods, it is particularly important to have opportunities for political

conversation across existing boundaries. Public space can serve as a site of political debate and

14

informal encounter. In community centers, schoolrooms, and on the street, people from

different classes and cultures have the chance to discuss their needs, agitate for their interests,

and formulate a concept of the collective good. The disappearance of public space makes

political communication between groups more difficult. Even when members of different

groups do not engage in formal political discussion, exposure to others may help offset the

mutual fear and suspicion fostered by segregation. It is difficult to feel solidarity with strangers

if we never inhabit places that are shared with people who are different. The privatization of

public space gradually undermines the feeling that people of different classes and cultures live

in the same world. It separates citizens from each other and decreases the opportunities for

recognizing commonalities and accepting differences. Public space is made up of more than

parks, plazas, and sidewalks; it is a shared world where individuals can identify with one

another and see themselves through the eyes of others. Seeing oneself through the other’s

eyes may be a first step towards recognizing one’s own privilege and, perhaps, criticizing

structures of systematic privilege and deprivation.

2.3 PRIVATIZATION AND POLITICAL ACTIVITY

It is practically a truism to say that the disappearance of public space is caused by privatization.

But what exactly is privatization? It can involve several related processes. Privatization, in the

narrow sense, describes the sale of state-owned assets to individuals or corporations. This

happened in Salt Lake City when the municipality sold a block of down-town to the Church of

Jesus Christ of Latter-Day Saints. Such direct sales, however, are fairly uncommon. Usually, the

process is indirect; private ownership comes to predominate as commercial spaces such as

shopping malls and theme parks gradually replace public places such as town squares. Some

people feel that this change simply reflects consumers’ preferences; others suggest that

preferences are themselves determined by economic structures. According to this logic, people

go to the mall because there is nowhere else to go. Suburban malls proved more profitable

than traditional town centers because of cheap land, plentiful parking, and economies of scale.

15

Shopping malls may have survived because they were the “fittest” according to purely

economic criteria but that does not mean that they are preferable from a civic or aesthetic

point of view. Regardless of whether one views the malling of America as a cause for

celebration or alarm, it is important to recognize that it has distinctive political consequences.

Privately owned places—unlike their state owned equivalents—are not obliged to allow

religious activity or political speech. As more of our lives are lived in privately owned places, the

opportunity for certain types of political activity decreases. Commodification is also part of the

broader process that I am calling privatization. Commodification occurs when something is

turned into an object that can be bought or sold. Most privately owned common spaces are

part of profit-making ventures and are therefore treated as commodities; theme parks charge

entrance fees and shopping malls carefully calculate how much “public” space is necessary to

draw customers into adjacent stores. But state-owned spaces can also be commodified. In June

2003, for example, Toronto inaugurated a new public plaza in the heart of downtown; in order

to pay for two 24hour security guards, city officials decided to rent it out for concerts and other

commercial events. Big corporations have paid tens of thousands of dollars to emblazon their

logos on Times Square-style digital billboards while citizens were arrested for drawing peace

signs in chalk on the plaza.14 This process is so widespread that commentators have coined the

term “café-creep” to describe the way that commercial ventures are gradually taking over more

and more public space. But the profit motive is not the only thing driving the disappearance of

public space. Another dimension of privatization is a desire for control that cannot simply be

reduced to commodification.

This string of defeats is a setback for political activists and proponents of an active public life.

But it could have the unintended consequence of channeling debate over privatization into the

political arena and out of the closed chambers of the court. If judicial intervention will not

protect the public sphere, then political action still presents an alternative. Congress or state

legislatures could pass statutes mandating that malls of a certain size must provide access to

community groups. They could also establish guidelines to extend broader protections for

political activity. One way to do this would be to pass legislation applying speech and petition

16

guarantees to the functional equivalents of traditional public forums. As indicated in the

Pruneyard decision, there is no constitutional provision that would invalidate these kinds of

laws. Because labor unions are dependent on tactics such as the picket line, they would be

powerful proponents of such a law and useful allies for other activist groups fighting to

maintain access to public space. As the Seattle-inspired euphoria wanes, the struggle for such

legislation could unify labor and other social movements. Even in areas where such tactics were

unsuccessful at the state level, it would still be possible to adopt similar strategies at the local

level. The obvious place is to start is to support downtown business districts and other public

places that still encourage diversity and invite political activity. But this individualist solution, by

itself, is naïve. Collective action is also necessary. When new large-scale mall developments are

proposed, citizens have the most leverage to demand some form of continued public access.

The support of local government agencies, town councils, and planning boards is crucial for a

project on the scale of the modern mall. By building and upgrading roads, modifying zoning,

and approving permits, localities still have bargaining power over some aspects of

development. They could negotiate a policy guaranteeing free access to a community booth or

public courtyard in the mall.25 For example, in 1991 the Hahn Company, which owns thirty

malls in California, signed an agreement with the American Civil Liberties Union that allows

leafletting and petitioning in most of its malls. In New York, Democratic state legislators have

introduced a bill mandating that privately owned complexes with at least 20 stores and 250,000

square feet of commercial space designate an area where citizens can congregate to engage in

non-disruptive political activity.26 In 1988 a similar bill was defeated in the state legislature

Why are these tactics seldom even employed let alone successful? Although malls like the one

in Bridgewater manage to preserve natural oases such as “Mac’s Brook” they fail to protect

oases of publicness in a privatizing world. And this is not only the fault of greedy developers.

Most people do not value the disruption and unease caused by other peoples’ political speech.

One of the appeals of the mall is precisely that it provides an environment carefully designed to

exclude any source of discomfort. As Benjamin Barber put it, shopping malls and theme parks

sell a sanitized substitute for public life “where people can experience the thrill of the different

without taking any risks.”28 The soothing lighting, polished surfaces, pleasant temperature, and

17

enticing displays are not the only allure; part of the fantasy involves entering a world where no

homeless person, panhandler, or zealot can disturb the illusion of a harmonious world. We

appreciate free speech in the abstract but often avoid it in reality. In this mauling of public

space, democratic theorists have confronted extremely sophisticated marketing experts, and

the democratic theorists have been the losers. The political theorists who are most concerned

with democracy have failed to offer a compelling rationale to challenge the privatization of

public space. By concentrating on the value of speech rather than the importance of space, they

turn the public sphere into an abstraction. We need to engage in more careful reflection on the

reasons why we should protect free speech and public space. In academic circles, theorists

argue that deliberation between citizens is the most promising way to reach rational political

decisions. Moreover, they stress that rational, public-spirited discussions are necessary to

legitimate democratic procedures and make sure that politics does not degenerate into mere

struggles over power. These theories of deliberative democracy are indebted to Jürgen

Habermas’s influential work on the ideal speech situation. The basic idea of the ideal speech

situation is something like this: when we engage in conversation we assume that other

participants are telling the truth, speaking sincerely, and oriented toward mutual

understanding. When these conditions are realized, then a rational consensus can emerge.29

I believe that one reason for the popularity of deliberative democracy is that it is based on a

certain optimism about the efficacy of ideas. Although our convictions may also be resistant to

change, they are much more malleable than the built environment. Confronted with a

landscape filled with strip malls, decaying supermalls, forbidding seas of concrete parking lots,

and urban high-rises isolated in unkempt wastelands, it is tempting to focus on democratic

theories rather than the more intractable problem of democratic practices. At first it seems as if

this emphasis on “deliberative democracy” is precisely what is needed to reinvigorate our

commitment to the public sphere, whether it is comprised of street corners with soap boxes

and speakers or their modern equivalents. Deliberative democracy reinforces traditional

justifications of the speech clause of the First Amendment. But the concept of deliberation will

not be useful if it emphasizes the rationality that emerges from the ideal speech situation. Let’s

face it. Nothing approaching the ideal speech situation ever happens in the mall. The ideal

18

speech situation is basically an extremely idealized depiction of the norms of scholarly journals

or conferences. We need free speech and public places not because they help us, as a society,

reach a rational consensus but because they disrupt the consensus that we have already

reached too easily. Reasonable arguments often just reinforce distance, whereas public space

establishes proximity. This proximity has distinctive properties that democratic theorists often

overlook. We can learn something from facing our fears and evasions that we cannot learn

from debating principles. The panhandler and the homeless person—they do not convince us

by their arguments. Rather, their presence conveys a powerful message. They reveal the rough

edges of our shiny surfaces. The union picketer and right-to-lifer confront us with meaningful

and enduring conflict. Provocative speech cannot be something that happens elsewhere—in

academic journals, conferences, mass mailings, and highly scripted town meetings. It must

sometimes be literally in your face for it to have any impact. For a robust democracy we need

more than rational deliberation. We need public places that remind us that politics matter.

In New Jersey, at least, malls will be part of this public. That is the implication of a decision

reached by the New Jersey State Supreme Court on June 13, 2000. In a unanimous vote, the

Court held that Mill Creek, another New Jersey mall, could not restrict free speech by

forbidding political groups from leafletting. Although the owners could place reasonable

restrictions on expressive conduct to make sure that politics did not disrupt the commercial

activities of the mall, they could not deny access to the only place left in New Jersey where

there is an opportunity for face-to-face contact with large groups of people. By a circuitous

route, the dream of Bridgewater comes true and the residents will get a commons

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2.4 WHAT IS ‘PLACE ATTACHMENT’? – APPROACH

Environmental psychology is a relatively little-known discipline which takes central psychological

concepts such as ‘attachment’ and ‘identity’ and applies them to the relationship between people and

place. So, in this way ‘place attachment’ is described as a psychological process similar to the infant’s

attachment to parental figures. Inevitably attachment – to parent and place – is very closely bound up

with past memories and experiences and therefore ‘place attachment’ is intricately tied up with

memories and histories, personal and collective, of places. Academics Proshanksy, Falian and Kaminoff

have described ‘place identity’ as a ‘pot pourri of memories, conceptions, interpretations, ideas and

related feelings about specific physical settings’.38 A strong sense of place and identity then, will be

enhanced by the preservation of history rooted in real memories, another concept which academic

Dolores Hayden calls ‘place memory’. In her writing on the ‘power of place’ she describes how identity is

intimately connected to memory, in terms of personal memories of where we have come from and

where we have lived, as well as collective or social memories connected with the histories of our

families, neighbours, colleagues and ethnic communities. Consequently she views urban landscapes as

‘storehouses for these collective memories’, where features such as hills, harbours, streets and buildings

frame people’s lives and outlast many lifetimes. This is the ‘power of place’ – the power of the ordinary

urban landscape ‘to nurture citizens’ public memory, to encompass shared time in the form of shared

territory’. But despite the potential of the power of place, writing with reference to the United States,

she believes it remains largely untapped, with the result that ‘the sense of civic identity that shared

history can convey is missing’.39 Instead the emphasis on place as a consumer product often has the

opposite effect, removing places from the surrounding community and responding to the genuine desire

for history with the misplaced creation of ‘faux heritage’ environments which fast turn into tourist traps

rather than crucibles of local culture. The consequence is not only the sterility of the environment

created but the lack of cohesion which is the result of the failure to bind the majority of the population

to place.

In contrast, regeneration which involves the re-use of old buildings for new, unexpected and innovative

purposes does tap into this power of place by retaining people’s memories, and indeed love for a place,

while at the same time creating new and exciting uses. The failure of the Millennium Dome as a

regeneration project compared to the success of Bankside on the south side of the River Thames is a

prime example of the difference that working with the local identity and grain of an area really makes.

The Dome, with little connection to the community in the surrounding Isle of Dogs, appeared to have

been catapulted into the area in the vain hope that its popularity would generate an economic

20

boosterism effect. Instead the embarrassing failure of its corporate exhibition simply highlighted the

disconnection of the project to its environment, fuelling local resentment further. Bankside, on the

other hand, with its centrepiece conversion of the old power station into the Tate Modern art gallery, is

described as embodying a ‘sense of time as history’.40 In the same way that change is etched on

people’s faces to produce a lived in feel, successful places keep visible the stages of their development

ensuring that the community as a whole retains its attachment. The view to St Paul’s opposite, linked by

the new Millennium Bridge, adds to this continuity and fills the vista with ‘place memory’. But Bankside

also benefited in a number of other respects, which illustrate the overlap between the importances of

concepts such as ‘place attachment’ with some of the more established shibboleths of successful

regeneration, in particular community consultation and participation. After all, ‘place attachment’ is in

many ways another means of reframing the ‘stakeholder’ argument, which aims to enhance ‘local

ownership’ of places.

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3. CONCEPTUAL MODEL

Consequently, we propose a model of publicness rooted in the above criteria but which also

operationalizes these dimensions. In this model, publicness is assessed on three core

components: ownership, management, and uses/users. Conceptually, each component

represents an axis that intersects and interacts with the other two components (see figure

1). While any assessment of a space's publicness must account for these three dimensions, the

model allows for a bracketing of one or more axes. In our own empirical examination, for

example, we explore the management axis as it differs between publicly and privately owned

spaces, but stop short of a more comprehensive assessment of the model. This implies that the

research is inevitably partial. To construct a more robust model, however, we argue that some

elements must be kept constant so that others may be explored. The present research is thus

part of a larger project.

Kohn (2004) also proposes a definition of publicness that encompasses three core criteria:

ownership, accessibility, and inter-subjectivity of the last term referring to the kinds of

encounters and interactions that a space facilitates. She argues, however, that assigning a label

of public or private is not as simple as checking whether a space meets these three criteria.

Instead, publicness must be treated as a multifaceted concept that acknowledges its own

``multiple and sometimes contradictory definitions''.

Madanipour (1999) interpreted a framework by Benn and Gaus (1983) that theorizes publicness

as based on three dimensions: access, agency, and interest. Access is defined as access to a

place as well as the activities within it. Agency refers to the locus of control and decision-

making present, and interest refers to the targeted beneficiaries of actions or decisions

impacting a space (Madanipour, 1999). Marcuse (2005) identifies no fewer than six degrees of

ownership, ranging from totally private to totally public. Marcuse (2005) describes six legal

forms of ownership of public space:

(1) Public ownership, public function, public use (streets),

(2) Public ownership, public function, administrative use

(city hall),

22

(3) Public ownership, public function, private use (space leased to commercial establishments),

(4) Private ownership, public function, public use (airports, gated communities, zoning-bonus

private plazas),

(5) Private ownership, private function, public use (cafes), (6) private ownership, private use

(home).

23

3.1OWNERSHIP

One component of publicness involves whether a space is owned by a government body

(public) or a private individual or corporation (private). Typically, ownership is directly related

to operation: publicly owned spaces are usually publicly operated; privately owned spaces are

normally privately operated. We can locate these two prototypical spaces on either end of the

axis, with spaces of mixed ownership/operation (eg publicly owned but privately operated)

falling somewhere between these two poles. Figure 2 demonstrates the four possible

ownership and operation combinations. Mixed ownership/operation spaces have become

increasingly popular in recent years (Katz, 2006); famous examples in New York City include

Bryant Park, which is publicly owned but privately policed by a strong BID, and Central Park,

which is run by a private conservancy. In the case of BIDs, local property owners carry the

24

operational expense. Although still publicly owned and under the jurisdiction of public officials,

privately operated spaces are often criticized for serving to increase property values and

economic spillover rather than attending a broader public interest (Zukin, 1995).

3.2 MANAGEMENT

This dimension refers to the manner in which a space is controlled and maintained, and

specifically refers to the methods by which owners indicate acceptable uses, users, and

behaviors. Management techniques range from including features that encourage freedom of

use, access, and behavior (such as making seating available) to providing elements that

discourage use and control access and behavior, such as the presence of panning surveillance

cameras or armed security guards. Understanding the various approaches to spatial

management is important because behavioral control often has broader consequences related

to the degree of inclusiveness and social diversity of a space (Sandercock, 1998). According to

Franck and Paxson (1989, page 133), ``who controls a public space, how they do so, and how

they attempt to make the space safe and secure'' are important components of this

management and control dimension. In addition to these overt techniques, managers often

incorporate more subtle cues and codes such as temporary closures for corporate events and

small-scale design features like canted ledges that become unsittable (Whyte, 1988). This axis

ranges from inclusive/open on one end to exclusive/closed on the other end.

3.3 USES AND USERS

This is perhaps the most difficult axis to measure, as it can be interpreted both quantitatively,

by the diversity of uses and users of the space, and qualitatively, by the behaviors and

perceptions of the users themselves. Arguing for vibrant spaces, Franck and Paxson (1989, page

131) claim that ``the greater diversity of people and activities allowed and manifested in a

space, the greater its publicness.'' But as noted earlier, publicly accessible spaces that might

25

appear more public to some might feel less public to others. Studies have examined how space

is not always used in a similar fashion by different groups; most of these explore how

traditionally marginalized racial and ethnic groups interpret, use, and recreate in space (Craig,

1972; Hutchinson, 1987; Loukaitou- Sideris, 1995; Rose, 1987). Choudhury (1996, page 283) has

also concluded that the ``social acceptability of ... space to different cultural groups is affected

by the cultural composition of a neighborhood.'' Observers also describe how space is used and

appropriated in ways not originally intended. Such open-ended spaces have additional value as

different users can tailor and adapt them to best meet their particular needs and affinities

(Fernando, 2006). Consequently, this axis measures not only what uses and users are actually

present in space, but also serves as an indicator of perceptions of publicness. While the

ownership and management axes assess the potential for publicness, measuring how a space is

used and perceived can more accurately determine actual publicness. This model is not yet

complete; operationalizing the uses and users axis, for example, requires a multistage

methodology likely requiring both unobtrusive observation techniques and user-intercept

surveys. Once all axes have operationalized, one could potentially plot several spaces to

compare their relative publicness. Upon determining where a space belongs on each axis,

points can be connected to form an overall plot of the space's publicness. In the hypothetical

example in figure 3, space A's plot lies above the dashed horizontal line, and is thus `more

public' than space B's plot, which falls below the line. In the present examination we investigate

whether different management approaches are employed in publicly owned and operated

versus privately owned and operated spaces (those located in the upper left and lower right

quadrants of figure 2). This analysis helps determine whether relying on the private sector to

provide and operate publicly accessible space reduces the publicness traditionally associated

with it. Our study addresses three questions. First, are privately owned public spaces really

more controlled than publicly owned spaces, as is commonly asserted? Second, if privately

owned spaces are more restrictive, is it because such spaces actively exclude users, as is

commonly believed (see Whyte, 1988), or do they simply fail to encourage use by a wide variety

of users (see Kayden et al, 2000)? Third, what specific management regimes and techniques do

managers of public space employ? Answering these questions has implications for crafting a

26

more socially optimal public policy directed towards privately owned public spaces. In the

process, we tease out a number of differences both explicit and implication the management

practices operating in these spaces.

3.4 COMMODIFICATION:

Second, spaces that are privately owned and operated often serve as extensions of the

sponsor's public image (Schmidt, 2004), and managers avail themselves of a number of legal,

design, and policy tools to ensure that a space adequately and accurately reflects this image.

These techniques can range from the use of advertisements and logos to limiting access to the

27

space to a desirable audience by extending a `restricted use' area into the more traditional

spaces such as sidewalks and street rights-of-way. Kayden et al (2000) have variously coined

this tendency `trattoria trickle', `brasserie bulge', or `cafe¨ creep'. Managers of such spaces tend

to prioritize profit making and cleanliness over concerns about design quality or social mixing.

3.5 SAFETY:

Third, safety-considered herein as freedom from personal crime-is an oft-cited and socially

acceptable goal, particularly since September 11, 2001. Concern over providing security and

creating safe urban environments comports with the general consensus among planners,

developers, and consultants that publicly accessible spaces must be perceived as safe in order

for them to fulfill their potential. Indeed, real and perceived safety remains a top concern for

the majority of the public (Talen, 2008), and a number of business improvement districts (BIDs)

have based entire park rehabilitation schemes on developing safer spaces. Usually this method

is predicated on the `eyes on the street' approach espoused by Jacobs (1961). This approach

involves not only an active security policy, but also the prioritization of `natural surveillance'

techniques, on the basis of the notion that creating safe spaces involves a critical mass of law-

abiding, desirable users who can identify unlawful activities themselves. Thus, to attract this

critical mass, these schemes rely on extensive programming and event planning. Prioritizing

security over inclusion or publicness is potentially problematic, as attempts to attract a more

`appropriate' population are often dependent on excluding those deemed less desirable.

Despite these detailed critiques, some still argue that a space's publicness is how open and

inclusive it is to a diverse public and can be located along a continuum from completely private

to completely public. Yet as Staeheli and Mitchell (2008) argue, any attempt to do so is

fundamentally flawed since the notion that public space is the site of only public (or inclusive)

action, while private space is the site of only private action is ``an assumption that does not

really hold'' (page 120). Instead, they argue, a space's publicness consists of a more complex set

of relationships between property and people.

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4. THE STREET GOES TO THE SUBURBS

Today in Europe and the USA, the challenge of planning lies not so much in the old city centers,

where space is scarce, but rather in suburban areas submitted to rapid development and where

public authorities have less control over its form. In 1991, Joel Gareau (1991), an

American journalist, published a book that sounded like a fatalistic account of the new cities

emerging in suburban areas He called them 'edge cities.' Their main characteristic was that they

were entirely dependent on car traffic and organized according to a loose functional geographic

division. Nowhere in these new cities could one find a landscape approaching the street or a

square, rather, Gareau says, "In edge city, about the closest thing you find to a public space -

where just about anybody can go- is the parking lot." American designers have tried to react to

the ills of suburbanization: waste of space, car dependency and lack of socialization (Putnam

2000). But old cities suffer from a bad reputation as a dangerous environment. Thus, rather

than renovate older urban wastelands and follow Jane Jacobs' call for the practice of "infill",

developers have preferred to take their projects to the suburbs and recreate there the

community life denied both in the city centers and suburban tract developments. The trend has

taken two main forms that are worth distinguishing for the types of public spaces that they

generate: gated communities and New Urbanism. On the one hand, a large amount of the new

housing production is marketed as safe havens protected from outside dangers. They are called

gated communities (Blakely and Snyder 1997). They are private housing developments built

inside a wall and guarded by private security. Proof of ID must be shown at the gate. These

developments are thought of as the ultimate privatization of the urban realm. Indeed, the

streets, or rather the roads, for these settlements are all car-oriented, belong to the owners'

association. Gated communities originally started as enclaves for the elderly and the rich. They

thus embodied a sense of community located in space that could make them look like villages.

However, researchers have shown that the feeling of fear pervades social relations even within

the community (Low 2003). Thus social ties are often restricted to a minimum. Gated

communities seem also to reinforce in their inhabitants the wariness towards the outside

world. They tend to limit their outings to places that are also considered socially homogenous

such as upper-class shopping malls.

29

The other trend is called "New Urbanism" by its proponents (Duany, Plater Zyberk and Speck

2000). The project is explicitly to build an environment that fosters community bonding and

limits urban sprawl. One of the main ideas is that inhabitants should walk to shop and work as

much as possible and thus transform the streets and squares into places of neighborly

sociability, while saving energy. New Urbanism is the bringing together of both the American

dream of the individual house and the need for community and imperatives of sustainable

development. The most common critic however is that, despite the effort, very few inhabitants

work within walking or even biking distance of their house. In fact, a study has shown that car

use in these developments can be even higher than in the new cities of the 60's (Forsyth 2002).

Consequently, rather than addressing the ills of suburbanization, New Urbanism contributes to

the sprawl that it is trying to limit. Another consequence is that the streets of these villages are

not as lively as they should. They are only rarely visited by strangers and transformed into

exclusive spaces. These trends have had an interesting influence on French urban planning.

They serve as an inspiration towards more security and more community that can be observed

in new and old housing developments (Legoix 2006). In suburban housing projects, public space

is often cut into small parts and partly privatized as individual yards and gardens.

Circulation paths are narrowed down to well recognizable forms such as the street or the

alleyway (CERTU 2007). But gated communities and New Urbanism point at a misunderstanding

of the dual social dimensions of public space. By only attempting to recreate the community

dimensions, they overlook the urbanity of public space. The street is not only an object

representative of urban form and tradition; it is also a symbol of social relations made out of a

mix of local ties and anonymous relations. The first idea evokes the shared space of a

community and is often referred to with the word "conviviality", whereas the second talks

about access to anybody and a civil or respectful copresence. It is mostly this first aspect of

public space that designers have chosen to adopt today in order to repel the "placeless"

developments of suburbia or of housing projects (Shaftoe 2008). As a consequence, the design

has been often guided by symbolic representations of a supposedly lost urban life best

exemplified by the concept of the "urban village" or the "downtown" (Isenberg 2004). If in

dense cities, villages can be urban, it is more difficult in suburban areas.

30

This trend thus marks a reinforcement of the community dimensions of neighbourhoods that

could be considered independent fragments of the city. Are the streets still the epitome of

public space?

4.1 THE MALLING OF PUBLIC SPACE

The privatization of public space poses a number of conceptual challenges for public policy

makers. Does the ownership or use determine whether a particular place is truly private? How

should the right to private property be weighed against the legitimate state interest in

sustaining a public sphere? Does it violate the First Amendment right to free speech if a

shopping mall prohibits orderly political speech? Are suburban malls meaningfully different

from downtown developments? The United States Supreme Court has tried to answer these

questions in a series of decisions that have determined government policy defining the public

sphere. The Supreme Court’s doctrine in “the shopping mall cases” reflects a growing

unwillingness to engage the broader political issues emerging from rapid social change. By

insisting that the First Amendment only limits what government agencies can do, the Court has

effectively closed its eyes to the privatization of public space

A mall is a place you visit; a town is a place you live. But this has been slowly changing. Industry

watchers report that the average visit to a “leisure time destination” (a mall with sophisticated

design elements, restaurants, and movie theaters) lasted four hours as compared to just one

hour at a conventional mall. The mall has become an entertainment mecca, a major employer,

and a premier vacation destination. The Travel Industry Association of America (TIA) reported

that shopping is the number one vacation activity in America. The Mall of America in

Bloomington, Minnesota attracts 42.5 million visitors annually.12 Its hundreds of retail

establishments are not the only attraction: it has a wedding chapel, the nation’s largest indoor

amusement park, a post office, a police station, and a school.

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The mall is also a workplace. The West Edmonton Mall has over 15,000 employees. Although

they do not manufacture automobiles or aircraft carriers, they do produce the spiral of fantasy,

desire, and consumption that is the basis of the North American service economy.

The mall is becoming not only a genuine multi-use facility, but a completely selfcontained

homotopia of suburban life. In the morning the doors open to waiting seniors, the famous mall-

walkers who appreciate the controlled climate, cleanliness, and safety. At night the security

guards have to herd out the lingering teenagers, who are in no rush to go home to their

monotonous housing developments. The mall is clearly the nodal point of social life, but is it the

equivalent of a downtown business district? Not exactly. The shopping mall is so attractive

because it combines the pleasures of public life with the safety and familiarity of the private

realm. Ironically, the suburban megamall was intended to be an oasis of urbanity and

civilization. Victor Gruen, the Viennese architect who designed the prototype of the modern

mall, was motivated by a progressive vision. He wanted to recreate a vibrant, pedestrian-

oriented, multi-use area that captured the excitement of urban space. An immigrant from

Vienna, he was inspired by the glass-enclosed atriums of Europe, particularly the gallerias of

Milan and arcades of Paris. In 1956 he built Southdale in Edina, Minnesota, the first multi-level,

enclosed, climate-controlled mall. He thought that the mall could serve as a community center

and nodal point for civic identity in the suburbs.14 He realized that many people long for the

vitality, diversity, beauty, and stimulation of public space. Gruen astutely predicted that when

public space is not available, people would flock to private simulacra. But the private provision

of public places is a Faustian bargain. Once developers possess the power of property rights,

they usually exercise them to create the highly orchestrated and controlled environments that

eviscerate the diversity that animates public space. Following in Gruen’s footsteps,

contemporary mall designers have used their formidable skills to simulate the old-fashioned

downtown of our imaginations. Faux antiquarian signs suggest that shopping corridors are

actually city streets and the central atrium is the town square.15 Some malls, such as Faneuil

Hall Marketplace in Boston, incorporate restored historical buildings in order to create the

atmosphere of reassuring urbanity that many Americans identify with the past. Other malls play

freely with period and place in order to incorporate images widely associated with a

32

sophisticated and alluring public life. The Borgota, a mall in Scottsdale, Arizona, for example,

was built to resemble a walled village in thirteenth- century Italy. Replete with an imitation

church bell tower, bricks imported from Rome, and signs in Italian, it appeals to affluent

consumers’ fantasies about public space.16 These design elements reflect the developers’ claim

that the mall is a “city within a city” (The Mall of America) or “an urban village”.

When animal rights protesters went to court to gain access to the “public” areas of the Mall of

America, they tried to make use of the mall’s semiotic system for their own ends. They claimed

that the mall presented itself as a multi-use downtown business district and therefore should

be governed by the principles set out in Marsh v. Alabama. Faced with petitioners trying to

engage in protest activity, the Mall of America, however, quickly retreated from the semiotics

of “Main Street USA” and embraced a more conventional defense of private property.

In some cases, the claim that malls are contemporary community centers is based on more

than Imagineering. Increasingly the mall is a civic center as well as a shopping destination. The

local and county government in Knoxville, Tennessee, for example, has located essential

government services in a shopping mall on the periphery of town, the Knoxville Center. In an

effort to “take the services to the people,” the city encourages Knoxville citizens to visit “City

Hall at the Mall,” where they can pay their property taxes, renew their drivers’ licenses, mail

letters, and apply for marriage licenses. There is also a police station and a community room.

The consequence of this convenience is that the shopping center effectively serves as a moat of

private space that insulates public functionaries from protest activity. The leasing arrangement

opens up a potentially Kafkaesque scenario in which the aggrieved citizens try vainly to gain

access to the city hall only to be turned away at the gates of the mall by unaccountable private

security forces. Lest this scenario seem fantastic, imagine a group of antiwar activists who want

to deliver a petition to the city government, but they are turned away at the entrance to the

mall because they are wearing T-shirts that say “Give Peace a Chance.”

The “City Hall at the Mall” may be an extreme example, but it is emblematic of a

trend toward multi-use malls. An April 1999 survey by the journal Shopping Center World found

that half of the 150 new projects under construction are multi-use malls. Some of these are the

33

New Urbanist-inspired developments that try to mimic the appeal of old-fashioned downtowns

(see Chapter 6). They link higher density housing with office and retail space, all unified by

architectural cues evoking the turn of the century. Fifty of the new multi-use malls include

office space, libraries, housing, or hotels. One such project is the new Towers at Zona Rosa, a

shopping mall situated ten minutes from downtown Kansas City. Although the plan relies on

30,000 foot department stores to anchor the retail plaza, it also includes loft-style apartments

situated above boutiques and cafés. Underground parking, decorative street lamps, indigenous

plants, and outdoor tables are among the lifestyle-enhancing amenities. As theme parks,

megamalls, and gated communities merge, nostalgic recreations of the village green replace

actual public space. Living at the mall might still seem unusual, but it is a culmination of a

dynamic that has been accelerating throughout the 1990s—the emergence of what Joel

Garreau has called Edge Cities. The growth of Edge Cities reflects a complete transformation of

the spatial structure of postwar American life. The typical pattern of bedroom communities

situated along the outskirts of urban cores is disappearing. He reports that Americans no longer

sleep in the suburbs and work in the city. In dozens of cities including Houston, Boston, Tampa,

and Denver, there is more office space outside the central business district than within it. This

new office space is built in Edge Cities, suburbs that now incorporate millions of square feet of

commercial development. There are undoubtedly positive sides of this development. As more

companies relocate to the suburbs, the average American’s commute time decreases. But as

workplaces become more and more decentralized, the density needed to support public

transportation such as commuter railroads also disappears. Your suburban office park may be

closer to your home, but it is probably not served by the subway, which leads to greater

automobile dependence, traffic congestion, pollution, and the blight of endless parking lots. It

becomes increasingly commonplace to move from home to office to shopping mall in the

automobile. The Edge City citizen need never traverse public space. It becomes possible to

spend an entire day or lifetime without encountering street corners, bus stops, or park

benches. The new Edge City geography poses a challenge to the doctrine established by the

Supreme Court. If private space takes on a public character in cases like the company town

when it colonizes every aspect of life, then it is time to reconsider the character of the mall. But

34

this is unlikely to happen. As recently as 1992, the Supreme Court held that labor organizers

had no right to try to contact potential members by passing out leaflets in the parking lot of a

Lechmere’s store, this despite the fact that the only alternative space was a 46 foot wide grassy

strip separating the lot from the highway. In 1999 the Minnesota State Supreme Court heard a

challenge from an animal rights group that was prevented from peacefully protesting in the

common area of the 4.2 million square foot Mall of America. The protesters argued that the

mall was a public space because it had been heavily subsidized by the state, which provided

$186 million in public financing. The Justices found that “neither the invitation to the public to

shop and be entertained…nor the public financing used to develop the property are state action

for the purposes of free speech” under the Minnesota Constitution.

4.2 THE MALL GOES DOWNTOWN: CENTRAL BUSINESS DISTRICTS

Among sophisticated city dwellers, it has become commonplace to criticize the vulgarity,

homogeneity, and sheer ugliness of the suburban shopping mall.31 Strip mall-style

development with its garish signs, immense parking lots, and brutal architecture draws the

bargain hunter not the connoisseur. Even the more upscale suburban shopping malls, with their

faux marble surfaces, skylit atriums, and classical music can barely disguise the standardized,

middle-brow goods they sell. So down-town business districts, with their historical buildings,

unique shops, and slightly transgressive mix of seediness and sophistication continue to have

some appeal. But do these areas foster a different kind of public life? I pose this question

because academics writing about the mall often give in to the temptation to dress up

unreflective elitism as cultural criticism. As Pierre Bourdieu’s

Distinction and David Brooks’s Bobos in Paradise have shown us, “alternative” forms of

consumption—items such as Turkish kilims, espresso drinks, high-end outdoor gear, or ultra-

modern furniture—function to distinguish the educated, upper-middle classes from their petit-

bourgeois parents, business elites, and the Budweiser drinking masses. In order to avoid facile

35

criticism of the suburban mall, the final section of this chapter focuses on the way that the

malling of America has transformed the core downtown neighborhoods of urban centers such

as New York City. Business Improvement Districts (BIDs) have been at the forefront of the

attempt to apply the logic of the shopping mall to downtown centers. There are over 1000 BIDs

in the United States and more than forty in New York City alone.33 BIDs are geographically

contiguous areas that vote to assess property owners a special fee in order to provide

additional services. These services include sanitation, security, and landscaping. Some BIDs

employ uniformed personnel to provide tourists with directions and discourage criminal

activity. Others install benches, enforce uniform exterior décor standards, and distribute maps

featuring local businesses. They have been widely credited in the press for improving the

quality of life in downtown commercial districts. BIDs have been popular with both city officials

and business owners. For government officials, they provide additional tax revenue to fund

needed services in the most visible areas of the city. Business interests support BIDs because

the structure allows them greater control over their own tax payments. Revenue collected

through the BID is spent exclusively in the district and reflects the priorities of business owners.

Because assessments are mandatory, setting up a BID overcomes the free-rider problem that

plagues voluntary associations such as the Chamber of Commerce. At the same time, business

interests maintain complete fiscal control, thereby avoiding the interference of government

bureaucrats, local residents, and other citizens. With budgets in the tens of millions of dollars,

these publicly regulated, private governments are reshaping the political landscape of

downtown.

The proliferation of Business Improvement Districts (a phenomenon that goes by many names

including special assessment district or business improvement zone) is a response to

competition from the suburban shopping mall. The BID is, in effect, a centralized management

structure that allows dispersed downtown retailers to imitate and incorporate successful

elements of the mall. For a shopping mall it is fairly easy to provide common spaces, maintain

cleanliness, and orchestrate a high degree of visual and spatial coherence. Because the entire

mall is owned by a single developer who leases space to individual stores, centralized control is

guaranteed through property rights, rules, and detailed lease restrictions. In most downtown

36

business districts, streets and plazas are public; small businesses coexist alongside large chains

in buildings that they may either rent or own. The BID, unlike the mall, has to rely on

governmental powers such as eminent domain, taxation, fines, and zoning in order to mimic

the effects of centralized control. The enabling legislation in Arkansas gives some idea of just

how wide-ranging the power of business improvement districts can be. They are allowed:

(1) To acquire, construct, install, operate, maintain, and contract regarding pedestrian or

shopping malls, plazas, sidewalks or moving sidewalks, parks, parking lots, parking garages,

offices, urban residential facilities including, without limitation, apartments, condominiums,

hotels, motels, convention halls, rooms, and related facilities, and buildings and structures to

contain any of these facilities, bus stop shelters, decorative lighting, benches or other seating

furniture, sculptures, telephone booths, traffic signs, fire hydrants, kiosks, trash receptacles,

marquees, awnings or canopies, walls and barriers, paintings or murals, alleys, shelters, display

cases, fountains, child-care facilities, restrooms, information booths, aquariums or aviaries,

tunnels and ramps, pedestrian and vehicular overpasses and underpasses;

(2) To landscape and plant trees, bushes and shrubbery, grass, flowers, and each and every

other kind of decorative planting;

(3) To install and operate, or to lease, public music and news facilities;

(4) To construct and operate childcare facilities;

(5) To construct lakes, dams, and waterways of whatever size;

(6) To employ and provide special police facilities and personnel for the protection and

enjoyment of the property owners and the general public using the facilities of the district;

37

(7) To prohibit or restrict vehicular traffic on the streets within the district as the governing

body may deem necessary and to provide the means for access by emergency vehicles to or in

these areas;

(8) To remove, by agreement or by the power of eminent domain, any existing structures or

signs of any description in the district not conforming to the plan of improvement; and

(9) To do everything necessary or desirable to effectuate the plan of improvement for the

district.35 In other words, BIDs can exercise far-reaching governmental powers against

individual property owners in order to transform an existing neighborhood into a “managed

environment” with quaint matching signs and manicured plazas.

In some cases they can even eliminate seedy businesses that might scare off the target

consumer demographic. All this is done with minimal input from neighborhood residents,

citizen groups, or even commercial tenants. Business Improvement Districts have imitated the

environment of the suburban shopping mall as well as its management structure. The shopping

mall, like the theme park, tries to create an atmosphere “in which the emphasis on safety and

tidiness is supposed to make visitors feel secure and happy so they’ll spend money and come

back.” To this end, BIDs devote, on average, twenty percent of their budget to sanitation and

twenty-five percent to security.

These downtown shopping districts try to achieve a mix of urban and suburban values. Their

appeal is due to the energy, variety, visual stimulation, architectural distinctiveness, and

cultural opportunities distinctive of urban centers.39 At the same time they mimic the safety,

cleanliness, order, and familiarity that has proven such an effective formula in suburban malls.

This allows consumers to enjoy the traditionally urban pleasures of proximity to diverse

strangers in a setting where any risk of threat, disruption, disorientation, or discomfort has

been removed. This is a formula that was perfected in “festival marketplaces” such as Faneuil

Hall in Boston, Riverwalk in New Orleans, the Cannery in San Francisco, and South Street

Seaport in New York. Each project transformed a historic district into a zone of leisure and

38

consumption, filled with restaurants, chain boutiques, and kiosks specializing in local color.

Wildly successful from a commercial point of view, these projects have been criticized for

transforming distinctive, mixeduse districts into formulaic, sanitized tourist traps. Festival

marketplaces sell a simulacra of the city as tableau or spectacle, something to be enjoyed

visually but not experienced kinesthetically: the city without its smells, sensations, or dangers.

4.3 SOCIAL AND POLITICAL CONSEQUENCES OF BUSINESS IMPROVEMENT

DISTRICTS

Whereas most commentators have focused on an aesthetic critique of festival marketplaces

and the Disneyfication of downtown, they overlook the political and social consequences of this

transformation, particularly the impact of Business Improvement Districts on democratic

governance. BIDs pose several challenges to a democratic polity. First, political influence in a

Business Improvement District is usually directly proportional to the value of one’s property,

thereby violating the basic democratic principle of one-person, one-vote. Second, BIDs increase

the impact of the already powerful business community on local government. Finally, BIDs, as

private, nonprofit organizations, may be able to circumvent the constitutional provisions that

require local governments to protect the civil liberties of their citizens. In San Francisco, like

most municipalities, the creation of a BID and its priorities depend on the support of the

majority of property owners in the district. But all property owners do not have equal votes.

Votes are apportioned in relation to the value of commercial property, therefore a very small

cadre could effectively control the decisions of the BID. Although oligarchical control is

acceptable, a monarchy is ruled out, at least in San Francisco, where the weighted vote of one

individual cannot surpass forty percent. There have been several court cases challenging the

anti-democratic decision-making structure of Business Improvement Districts. The most notable

decision involves New York’s Grand Central BID, which encompasses 71 million square feet of

commercial space (nineteen percent of Manhattan’s total office space) and has a budget of

over $10 million. Robert Kessler, a shareholder in a co-op apartment building in the district,

argued that the governance structure, which guaranteed thirty-one seats to property owners,

39

seventeen seats to tenants, and four seats to government appointees, violated the

constitutional principle of one-person, one-vote. In 1997 the United States District Court found

in favor of the BID and the decision was upheld a year later by the Second Circuit Court of

Appeals.

From a legal perspective, the issue was how to interpret the precedent established in Avery v.

Midland County, the case in which the Supreme Court applied the doctrine of one-person, one-

vote to local government. Although the court clearly stated that cities and counties must

guarantee personhood suffrage, it left open the question as to whether this doctrine applied to

the myriad diverse and overlapping sub- and supra-local institutions. The Supreme Court noted

that “a special-purpose unit of government assigned the performance of functions affecting

definable groups of constituents more than other constituents” might be exempt from the

principle of one-person, one-vote. In subsequent litigation, the court recognized at least one

such exception. It held that the governing board of a local watershed management district

designed to provide irrigation could be elected exclusively by agricultural interests.44 In

Kessler, United States Circuit Court Judge Kearse concluded that the Grand Central Business

Improvement District (BID) was similar to the water management district: it existed for the

purpose of promoting business. Due to its limited scope and disproportionate impact on

property owners, one-person, one-vote did not apply. Although it is certainly true that Business

Improvement Districts exist in order to promote business interests, they still have a significant

impact on local residents. The range of services provided by wellfunded BIDs—security,

sanitation, social services, and capital improvements—is similar to that of local government.

Furthermore, the Grand Central BID’s foray into social services illustrates some of the dangers

that arise when a business lobby takes on quasi-governmental power. The controversy involved

a program designed by the Grand Central Partnership (a Business Improvement District) to

tackle the problem of homelessness by providing shelter and job training. There were two

accusations levied against the program, which resulted in litigation.46 Over forty participants in

the job-training program claimed that the Partnership violated state and federal minimum

wage laws. Under the auspices of “job training,” homeless people were paid $1.16 per hour to

serve as outreach workers.47 The second accusation dealt with the nature of the work that fell

40

under the category of “outreach.” Four former outreach workers claimed that they were told

by supervisors to use all means necessary in order to remove homeless people from the district.

They admitted to beating homeless people and destroying their belongings. These statements

corroborated the stories of homeless people who claimed they had been beaten and

threatened by Partnership employees.48 After an investigation, the Department of Housing and

Urban Development (HUD) requested that the BID return the unused portion of a $547,000

grant that had been awarded to subsidize its work with the homeless. Andrew Cuomo, assistant

secretary of HUD, explained, “We are not in the business of subsidizing thuggery.” The example

of the HUD grant also illustrates another under-appreciated political

consequence of the proliferation of BIDs. Although BIDs are widely lauded for raising additional

tax revenue from businesses, they also are more effective at competing for scarce resources

from city coffers. This is another lesson that BIDs have learned from shopping mall developers,

who have been very successful at getting a variety of government subsidies in order to lure

commercial development to a particular locality. In the suburbs, these subsidies usually include

tax abatements and public funds for site development and roads. BIDs have made downtown

more effective at lobbying for the enactment and enforcement of pro-business laws and gaining

resources such as extra police protection or direct subsidies. To take one example, the Wall

Street BID offered to offset some of the costs (towards space and equipment) if New York City

located a police substation in the district. Even though it was not an under-served area, the

police department complied. Decisions such as that one further exacerbate inequalities

between neighborhoods in the distribution of essential services. Not only do Business

Improvement Districts benefit from their ability to pay for higher levels of service, they may

also receive a greater proportion of city resources, as cost-sharing rather than need becomes a

criterion for distributing scarce resources. Although it is true that a voluntary Chamber of

Commerce, large corporation, or interest group will also be effective at influencing local

government, the BID formalizes this influence by creating a strong institutional mechanism.

BIDs aspire to imitate the controlled environment and unified management of the shopping

mall but public ownership of the streets and common spaces imposes a serious limitation on

their ability to do so. Unlike mall owners, local police officers are limited in their ability to eject

41

homeless people, preachers, street performers, and leafletters from common spaces

downtown. But what happens if private security forces do so? Take, for example, the homeless

people who were intimidated and forced to leave the Grand Central District. Had the police

tried to evict them, they could have complained to the city review board in charge of police

misconduct. The homeless victims also could have brought a lawsuit under a federal statute

that provides redress to any citizen deprived of any right secured by the Constitution and laws.

But because this statute only applies to rights violations undertaken by a person “acting under

color of law,” neither of these remedies is available to someone intimidated or threatened by a

private security force. This raises the possibility that local governments may rely on private

proxies to employ tactics that are forbidden to government actors. Although the Bill of Rights

prevents the government from limiting individuals’ right to free speech, movement, and

assembly, it is unclear what would happen if a private government such as a BID tried to do so.

Imagine a scenario in which a Business Improvement District adopted a code of conduct that

banned skateboarding, lying on benches, loitering, and leafleting. A BID could claim that it was

not a state actor, and therefore the Constitution did not apply. If this failed, the city could lease

or give the streets, sidewalks, and plazas to the BID, which had already assumed the cost of

policing and maintaining them. Armed with this designation as private property, the BID would

be a step closer to its goal of transforming downtown into a specialty mall.

42

5. CONSEQUENCES OF PRIVATIZATION:

COHESION, FEAR AND UNHAPPINESS

The idea of reclaiming public space for the majority, ensuring it is clean and safe and carrying out

significant public realm improvements, undeniably sounds appealing. Bearing in mind the importance of

high street spending to the health of the economy, if areas also become successful shopping

destinations that is surely even more of a positive, both for consumers and economic growth. However,

this report argues that instead of reclaiming public space the UK is sleepwalking its way to a privatization

of the public realm, with far reaching consequences for the cohesion and health of urban society.

Sustainability is a difficult term because, once again like so much contemporary policy jargon, it is very

loosely defined and so can be – and often is – used as all things to all people. For some a sustainable

community is an affluent one, for others it is a socially mixed housing estate. It might be a small

development or it might be an entire neighbourhood. The vagueness of the term is such that all can

apply. Essentially creating sustainable communities is taken to mean creating successful communities.

More interesting, however, than this fairly meaningless definition is the second half of the phrase, which

reflects another policy preoccupation – the current emphasis on ‘community’, a term often

interchangeable with the concept of ‘cohesion’. In this context historian Robert Colls’s observation of a

time when nobody talked about community and everybody belonged to one32 seems particularly apt,

highlighting the gulf between the aspirations of political rhetoric and the widely acknowledged realities

of community breakdown. Of course community breakdown has multiple causes, from mobility to

demography, but although the rise of ‘private-public’ space is not solely to blame it is certainly an

important contributory factor, as it underpins the trend towards the creation of individual

neighborhoods of atomized communities, which lack connectivity to the surrounding environment and

to each other and displace social problems out of their district and into areas of exclusion.

On a micro level this is mirrored by the fact that we are no longer building new homes and shops on

traditional streets. Instead ‘private-public’ development is creating ‘complexes’, either for housing or

leisure. Today nearly all new housing and leisure development is being built in this off-street, ‘complex’

style which, despite not being physically gated, effectively separates it from the surrounding

environment. In part this is due to issues such as land assembly on brownfield sites and safety

restrictions imposed by highway departments. However, a far more important driver is the desire of

43

developers to maintain maximum control over the space and what goes on there, in the ways already

described in previous chapters.

However, even if ‘private-public’ places can be squeezed into conveniently flexible definitions of what

constitutes sustainability, the problem which cannot be glossed over relates to cohesion – accurately

recognized by policymakers as the glue of any functioning society

5.1 HOMELESS-FREE ZONES: THREE CRITIQUES

Homelessness is one of the most dramatic reminders of the interdependence of public and

private. The homeless are those who have no private space, no dwelling where they can

exercise sovereignty or perform the basic bodily functions that we think of as private: sleeping,

washing, sexual activity, urinating, and defecating.

Much of the aversion that people feel towards the homeless has to do with the transgression of

these taboos about appropriate public behavior; many people feel disgust when they see

someone sleeping, washing, or relieving themselves in a park or alley. Sometimes the aversion

comes from the smell and appearance that is a logical consequence of the difficulty of

maintaining hygiene when facilities for these activities are not accessible.

When discussing the issue of homelessness, commentators often overlook the basic fact that

“everything that is done has to be done somewhere.”

If an individual has no private place to perform intimate bodily functions, these will have to be

performed in public or they will not be performed at all. The latter, however, is not an option,

because they are functions intrinsic to life itself. No amount of criminalization or harassment

can prevent people from performing activities intrinsic to life itself, although policing strategies

certainly can confine the homeless to certain limited zones of the city that are out of sight of

the more affluent citizens. This chapter explores the relationship between the experience of

44

homelessness and the rules governing public and private space. In order to understand this

topic, I contrast the positions taken by two prominent political theorists, Jeremy Waldron and

Robert Ellickson. Waldron argues that homelessness poses a serious problem for liberalism

because it reveals the contradiction between two cherished liberal values: private property

ownership and freedom. Insofar as the system of private ownership does not include everyone,

then at least some individuals are denied the most basic freedom of having a place “where

(they are) allowed to be.”

Robert Ellickson also takes seriously the fact that the homeless must inhabit public spaces but

concludes that cities should return to the old skid row model of social control. He argues that

certain behaviors associated with transients, hobos, drunks, and homeless people should be

confined to specific zones of the city so that other areas can enforce more rigorous quality of

life ordinances against behaviors such as nonaggressive panhandling and bench sitting. In this

chapter I seek to expose the flaws in Ellickson’s zoning strategy. His article is important because

his proposal is a formalization and justification of the strategies currently being pursued (de

facto if not de jure) in the United States today. In order to assess the problems with his

proposal, I consider three lines of critique: the liberal, the romantic, and the democratic

perspectives. Although all three can contribute to rethinking homelessness, the democratic

critique is the most effective.

5.1.1 HOMELESS FREE ZONES

In “Controlling Chronic Misconduct in City Spaces,” Robert Ellickson forcefully articulates a

widely shared view. He insists that “if city dwellers cannot enjoy a basic minimum of decorum

in downtown public spaces, they will increasingly flee from these locations into cyberspace,

suburban malls, and private walled communities.” He argues that the vitality of public space

depends on the ability to exclude behavior that violates community norms of civility and

appropriateness. Ellickson compares rules against nonaggressive panhandling to the rules of

parliamentary procedure which function to ensure a small minority cannot disrupt the

45

deliberation of a large group. Similarly, restrictions on certain behaviors enhance public spaces

by eliminating the disturbances that cause others to flee into their homes or commercial spaces

such as malls. Ellickson advocates a system of zoning similar to the one that city governments

use to restrict commercial development, but in this case panhandlers rather than strip malls are

the blight to be contained. His schema is modeled on traffic lights with red signaling caution to

the ordinary pedestrian, yellow, some caution, and green, a promise of safety. Red zones would

be composed of five percent of a city’s down-town area; like the old skid rows, these areas

would allow noise, public drunkenness, and prostitution. They would be “designed as safe

harbors for people prone to engage in disorderly conduct.” In yellow zones, ninety percent of

downtown, chronic panhandling, bench squatting, and other “public nuisances” would be

prohibited but some “flamboyant and eccentric conduct” would be allowed. In the remaining

five percent of downtown, strict social controls would guarantee a sanitized environment for

the most sensitive: the elderly, parents with toddlers, and unaccompanied children. In these

areas, even mildly disruptive activities such as street performances, leafletting, and dog walking

would be prohibited. Although Ellickson’s highly structured schema is put forth as a proposal, it

is actually a codification of existing practices. As Mike Davis documents in City of Quartz, Los

Angeles has long maintained the practice of excluding street people from the downtown core of

Bunker Hill and containing them in a Skid Row along Fifth Street, east of Broadway. The contrast

between Battery Park City and Historic Battery Park provides another dramatic example. Most

cities and small towns have de facto red light districts where prostitutes ply their trade without

police interference. Times Square in New York City, until its recent and controversial rebirth as a

tourist mecca, was the best known icon of zoned transgression. No one who has ever taken the

4, 5, or 6 train from the Upper East Side of Manhattan to the Bronx could doubt that social

zoning (segregation) is already well developed in the United States. In different zones, vastly

different levels of government service, poverty, and policing prevail. Ellickson argues that this

informal system should be formalized and strengthened because chronic street nuisances are a

serious harm that must be prevented. Whereas other proponents of strict laws against begging

usually focus on aggressive panhandling, Ellickson targets nonaggressive panhandling and the

menace of “chronic bench squatting.” It seems clear that he would also object to camping in

46

parks and public urination, which, although not aggressive or intimidating, are annoying to most

people. For Ellickson, panhandling causes harm by disturbing the privacy of passersby. He

suggests that people may fear violence, resent the fact that the panhandler thrusts his

problems on the public rather than social service agencies, or become annoyed that someone

has shirked his moral duty to be self-supporting. Chronic bench squatting, although less

offensive than begging, may still disturb others by monopolizing space in prime tourist

destinations; more likely, the smell or appearance of street people may discourage others from

sharing public space.

A proponent of law and economics, Ellickson relies on a utilitarian calculation to advance his

proposal. After quickly dismissing the alleged benefits of begging (such as the pleasures of

altruism) and nonutilitarian considerations (religious legitimization of begging and

constitutional protections) he concludes that the harms of street nuisances justify the zoning

system. A full treatment of the issue, however, requires that we also consider possible harms

that arise from the proposed zoning system. This zoning proposal formalizes existing patterns of

marginalization and exacerbates social problems. One consequence of confining street people

to five percent of downtown (significantly less than one percent of a metropolitan area) is

creating an extremely high concentration of the most troubled, impoverished people.

Describing skid row in Los Angeles, Mike Davis noted that “by condensing the mass of

desperate and helpless together in such a small space, and denying adequate housing, official

policy has transformed skid row into probably the most dangerous ten square blocks in the

world.”

Under these conditions it seems particularly unlikely that those with problems such as alcohol

or drug addiction will receive treatment. Those in recovery or fighting addiction will be in

constant contact with dealers, dangers, and indulgers, making it almost impossible to stay

clean. The environment seems guaranteed to exacerbate rather than solve the conditions that

often cause and/or accompany homelessness not to mention the fact that, surrounded by the

most poor, they will have little chance to receive the alms they rely on for survival.

47

Another problem is that these isolated areas are often far from adequate schools and medical

facilities. One mother living in subsidized housing in the South Bronx suggested that life in a

homeless shelter in Manhattan had been preferable because “at least we were close to better

hospitals and we were in the middle of an area of normal life, normal activity and you could

walk along Fifth Avenue and take your kids to Central Park.” But Ellickson is unconcerned with

the plight of the homeless (he suggests they choose the lifestyle) and therefore sees the

discomfort of seeing street people (rather than being one) as the serious harm.

It is dubious whether such discomfort should even be counted as a harm in the first place. My

subjective discomfort is not necessarily a legitimate reason for prohibiting otherwise acceptable

behavior. I may feel a certain class rage when I see a Prada bag, a Rolex watch, or a Lexus SUV

but that does not mean that such objects are objectively harmful and should be banned or even

excluded from ninety-five percent of the city center. Or to take a more serious example, major

social transformations such as the civil rights movement would have been impossible if we had

taken racist whites’ feelings of resentment, hatred, and fear into account when deciding if

equal treatment of minorities was legitimate. Even utilitarians such as John Stuart Mill

recognized that perverse outcomes would result if an evaluation of moral worth were based on

a simple calculation of pleasure over pain. Instead, Mill suggested that we make decisions

based on utility “in the largest sense, grounded on the permanent interests of man as a

progressive being.”

Is the discomfort that some feel when confronted with a panhandler a serious harm? In a

survey carried out by the New York Transit Authority, two-thirds of respondents had felt

intimidated by panhandlers in the subway. But it is possible that these fears are unwarranted or

exaggerated. In San Francisco, the police undertook a sting operation in which undercover cops

sought to arrest homeless people engaged in aggressive, intimidating behavior. After a few

days, the operation had to be called off because there were so few arrests. Undoubtedly there

are cases of street people, especially those who are mentally ill, who become aggressive and

violent. The question is whether the overwhelming majority who sit passively next to a sign

48

“will work for food,” sell homeless advocacy newspapers, or call out “spare a smile” should be

banned from ninety-five percent of down-town and all of the surrounding residential areas too.

It is hard to imagine a law prohibiting all sales of stocks because some brokers have deceived or

defrauded clients. Similarly, we should not prohibit peaceful bench squatting and panhandling

because of isolated incidents of violence. It is also debatable whether the discomfort that

passersby feel when they see street people is a harm at all. It is possible to imagine that some

people, say tourists from wealthy suburbs or small rural areas, may not have been aware of the

extent of poverty and homelessness in cities. Upon seeing the suffering of someone sleeping on

the street in brutal weather or going through a garbage can for food, they may feel shock,

anger, and discomfort. Although these feelings are aroused by seeing the homeless person, the

anger might actually be aimed at a government that cuts social welfare or an economy that

cannot provide affordable housing. The “harm” of discomfort might also be a benefit, the

benefit of becoming better informed about existing social conditions. This knowledge might

make one a more informed citizen, better able to evaluate priorities on government programs.

If a voter has never seen a homeless person urinate in the park, it is unlikely that she would

recognize the necessity of using tax money to provide public toilets.

Although it is true that witnessing suffering can and should cause dismay, the moral

consequences of this depend very much on whether we believe the harm comes from the

suffering itself or from the act of witnessing. If the problem lies in the act of viewing, then it

makes sense to banish those who suffer out of sight. But if the problem lies in the suffering

itself, then the appropriate response is to take action to mitigate the suffering. Public opinion

on this issue is somewhat difficult to gauge. Although 53.5% of people in one survey agreed

that the homeless are more violent and dangerous than other people, 85.8% also felt

compassion for the homeless and/or felt anger that homelessness existed in a country as rich as

the United States.19 Large majorities favored prohibitions on panhandling and sleeping on the

street (69%), but even more favored providing additional public housing (79%), drug treatment

(83%), and higher wages (70%). These results reflect the deep ambivalence about homelessness

in our society. Perhaps more systematic reflections on the political, moral, and legal

implications of homelessness will help us evaluate these different strategies for solving the

49

problem of homelessness. The next section looks at three different rationales for rejecting

criminalization or marginalization of the homeless: the liberal, the romantic, and the

democratic.

5.1.2 THE LIBERAL POSITION: HOMELESSNESS AND FREEDOM

In “Homelessness and the Issue of Freedom,” Jeremy Waldron articulates a distinctively liberal

case against the criminalization of homelessness. He argues that prohibiting certain behaviors

associated with homelessness is an attack on the most cherished value of freedom. Waldron

seeks to expose the tension between the universality of freedom and the unequal distribution

of private property that prevents the enjoyment of freedom. A liberal society is structured in

order to protect the individual’s pre-political rights and for many theorists, private property is

foremost among these rights. Property, insofar as it means control over access to land, is

essential to our very existence. As embodied beings, everything we do has to be done

somewhere. No one is free to perform an action unless there is some place where she can

perform it. The Wobblies claimed that the “right” to free speech was meaningless when they

were prohibited from speaking or selling their newspapers on the downtown street corners

where their target audience congregated. For the homeless, restrictions on living in public (e.g.,

bench squatting, sleeping in parks) are more burdensome, inasmuch as they prohibit basic life

functions. Waldron argues that if all property were private then the homeless would not have

the right to be; everywhere they went they would be subject to arrest and expulsion for

trespassing. Most people who live in homes or apartments have access to many other spaces

that they legitimately enter and share with others: workplaces, restaurants and bars, gyms, and

shopping centers. Most of these places, however, are commercial establishments that are only

accessible to paying guests. Although a charitable individual or group could give a homeless

person a place to rest, sleep, or clean himself, most people and businesses tend to take the

opposite tack. As the ubiquitous “restrooms for customers only” signs suggest, even businesses

that serve the general public still try to exclude the homeless. According to Jeremy Waldron,

“(the homeless) are allowed to be in our society only to the extent that our society is

50

communist.” Waldron, a well-known liberal, is polemically making the point that a regime of

private property rights becomes oppressive if there is no public or common property that the

dispossessed can inhabit. Finally, it is tyrannical that the majority of North Americans who have

the luxury of disposing over private space would also restrict public spaces so that over one

million homeless people would have no place to perform primal human functions. Waldron’s

argument, unlike Ellickson’s, does not rely on a utilitarian calculation. He does not try to weigh

the suffering of a million home-less people against the annoyance and discomfort of the

majority who bear witness. His argument is based on rights and is therefore meant to trump

the (possibly selfish or tyrannical) desires of the majority. A critic might object that the claim

that “homelessness is unfreedom” employs the term freedom in a manner inconsistent with

the liberal tradition. For liberals, freedom is the ability to live as one chooses as long as one’s

actions do not impinge on the freedom of others. The role of government is to enforce the law

and administer justice in order to guarantee individual freedom. Insofar as government is not

responsible for an individual becoming homeless by destroying or expropriating his dwelling

(actions that did occur on a large scale during the so-called urban renewal movement of the

late 1960s and 1970s26), then no one’s freedom has been violated. According to this critique,

Waldron’s position diverges from the typical liberal defense of negative freedom to embrace

the more expansive and problematic notion of positive freedom, for example, that the

government has the obligation to fight social inequalities in order to foster each individual’s

potential for autonomous thought and action. Despite Waldron’s polemical invocation of

“communism,” his solution does not involve abandoning private property altogether. The one

concrete proposal that he makes is that localities should provide public toilets. The guiding

principle seems to be that a society based on exclusive private property is morally required to

maintain a commons provisioned with adequate facilities and governed by fair rules. As long as

the dispossessed can glean a living in the commons, then the system of private property is still

legitimate.

Which rules are fair? Waldron distinguishes three categories of prohibitions on conduct in

public places. The first category includes conduct that is illegal no matter where it happens,

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crimes like murder or rape. The second category is made up of restrictions specific to public

places that “provide the basis of their commonality” and “can be justified as rules of

fairness.”28 Interestingly, he chooses park curfews, jaywalking, and obstruction of the street as

examples. The final category covers activities such as making love and urinating that are only

illegal when they are performed in public. Waldron convincingly argues that such measures are

intentionally adopted to drive street people out of public places in order to make such spaces

feel safer and more attractive to other users. The problem, however, is how to distinguish

between the second and the third categories. Which rules are fair bases for sharing public

space and which are punitive restrictions aimed at the homeless? It is puzzling that Waldron

uses park curfews as an example of fair rules when curfews are among the strategies most

commonly employed to ensure that homeless people cannot sleep in parks. It would be

perfectly acceptable to sleep in one’s own garden, therefore it seems as though this restriction

should be in category three.

There is a lot of disagreement about what rules are necessary to accommodate different users

of public space. Should activities such as walking a dog off the leash, playing a radio, or

skateboarding be allowed? These activities are permissible in private but restricted in public,

yet it seems likely that these would count as reasonable restrictions designed to make sure that

some people’s use does not preclude the use of others. Why can park authorities prohibit these

activities or restrict them to certain areas of the park? Some people, especially small children or

the elderly, might be afraid of unleashed dogs; loud radios make it difficult to converse or read;

fast-moving skateboards are hard to control and pose a risk to pedestrians. So park

administrators often decide to create special zones where these otherwise legitimate activities

are prohibited. Communitarians who favor stricter rules governing conduct in public space

argue that restrictions aimed at the homeless are fair measures designed to balance the

interests of different users. In other words, they claim that prohibiting sleeping on a park bench

is like prohibiting radio playing. One weakness of Waldron’s otherwise well-constructed essay is

that he does not explain how to distinguish between “fair rules” that make sure that some uses

of public space don’t foreclose others (category two) and unfair restrictions (category three).

Ellickson believes that his own proposed rules zoning out chronic panhandling and bench

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squatting are similar to traffic lights or other rules of the road. The only way that Waldron can

distinguish between fair and unfair restrictions is to rely upon the argument that certain types

of restrictions effectively prohibit bare biological life for homeless people. Waldron claims that

society can legitimately regulate conduct in public space only insofar as such regulations do not

make the most basic functions of life impossible for homeless people. Despite the rhetoric of

freedom, Waldron’s argument ultimately protects homeless people’s right to bare life.

Although this is undoubtedly an advance over the criminalization of basic life functions, it has

certain unintended consequences. According to Leonard Feldman, “Paradoxically this reduction

—of the homeless to bare, biological life and its compulsions (eating, sleeping, breathing)—

reinstates and criminalizes the agency of the homeless.”29 If the rights of the homeless only

extend to the basic functions of survival, then they have no legitimate grounds for turning down

a shelter space or leaving the confines of an area like skid row. Once constructed as “bare life,”

rejecting any basic provision that ensures survival becomes a volitional and therefore

punishable act. A homeless person who has access to a shelter, even one that is filthy,

dangerous, or separates families, cannot claim to have no “place to be” and therefore has no

right to live on the streets. As Feldman puts it, “Once the homeless have been reduced to bare

life in the legal imagination, the shelter becomes a legitimized space of confinement and

resistance to it becomes constitutionally punishable.” The problem with Waldron’s liberal

position is that it does not actually provide the philosophical or legal basis for refuting

Ellickson’s zoning scheme. In response to Ellickson, Waldron makes a convincing argument that

it is philosophically wrong to count moral distress as a harm for the purposes of utilitarian

calculation. But nowhere does he specifically object to the idea of creating a small restrictive

zone where “street nuisances” are permissible. As long as the homeless have some zone of the

city where they can perform basic life functions, then their right to exist is not infringed. An

analogy with property rights explains why this is so. Imagine that a poor family lives in a

cockroach, lead paint infested apartment in a dangerous neighborhood. These unappealing

living conditions do not give the family the right to move into the more sanitary, safe

accommodations in an affluent neighboring suburb. Similarly, the fact that areas zoned for

street sleeping and bench squatting are dangerous, squalid, and remote from basic facilities

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does not give the homeless the right to enter “yellow” or “green” areas of the city. Waldron is

convincing when he argues that as long as homelessness exists we must construct rules for

public space that take the needs of street people into account. But a defense of bare life is not

robust enough to combat the trend towards criminalization and punitive treatment.

Critics who investigate the collective social consequences of privatization make many

compelling observations about contemporary life:

• Economic divisions are increasing.

• Rich and poor citizens have unequal access to security.

• Fear of crime is often out of proportion to actual victimization risk.

• Private security systems and services ironically may create fear in order to reduce it.

• Privatized public spaces and services have important implications for civic life.

5.2 WHO PUSHES FOR PRIVATIZATION AND WHY?

Given the growing perception and awareness of the loss of public space, we have to inquire

about the factors contributing to hybridising processes. This question can only be answered by

looking at the actors behind the developments. Urban hybrid spaces do not simply emerge as a

result of economic restructuring or as a byproduct of individualisation, both of which are

tendencies that visibly shape urban society. But privatisation in cities does not just happen. It is

promoted and steered.

The administration and the redesignation or sale of public urban space are responsibilities that

lie mainly in the hands of local authorities. In democracies, city administrations, i.e. local

political and administrative representatives, are held accountable by the public and bear a great

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part of responsibility for the development of hybrid spaces. It is therefore necessary to look at

the motives and driving forces at the level of local actors.

5.2.1 THE REASONS FOR PRIVATISATION: THE REDUCTION OF LOCAL PUBLIC

DEBT

Political representatives of a municipality have to focus on the protection or reestablishment of

the political ability to act and strive for success in the competition among cities. In selling public

property, mayors and heads of administration or treasurers are not just looking after local

welfare. Elected officials also pay attention to the protection of (their individual) political

interests and are necessarily concerned about their chances at the next local elections. This

means that sometimes they promote populist ideas or cater to supposed public opinion [cf.

Nissen 2002]. For example, a local government that for the sake of urban openness advocates

less security and more tolerance for the nuisances that are a part of everyday street life would

be reducing its chances of being reelected. In this view, transformation of public space can

increase the probability of achieving local and consequently also individual aims. Most

municipalities are in tough financial situations, and the privatization of public property can help

relieve budget pressure. Local treasurers sell real estate, essentially ‘the family. Train stations

are an exception to this rule. Railroad property is only quasi-public, and railway companies in

many countries are no longer public corporations, although for historic reasons railway traffic

has a lasting public character. Nevertheless legal opinion in Germany judges the corporate

reforms in the railway sector as the privatization of the organizational form but not of duties

and responsibilities.

This mechanism can be observed in different contexts. See, for example, the discussion about

the freedom of movement for workers from new EEC member states [Belke and Hebler 2002:

166]. 18 Relieving the city of the burden of public property follows the same logic as ‘new

public management’ initiatives [cf. Osborne and Gaebler 1992] that see local authorities as

service providers. Sociologicky časopis/Czech Sociological Review, 2008, Vol. 44, No. 6 1142

silver’, and assign maintenance duties to private investors. The German city of Dresden is one

case in point: In 2006 the local authority sold its housing stock of 48 000 dwellings to an

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American private equity firm, the Fortress Investment Group LLC. The city received 1.7 billion

Euro for the sale and virtually overnight became debt-free [Landler 2006]. Municipalities try to

sell not just apartment buildings but also local facilities like hospitals or public transit, and then

leave the city with greater maneuvering room. The sales revenue enters the books on short

notice, that is, just in time for the next local elections. The costs that could arise from necessary

rental agreements or lease contracts will only rise slowly to a level where they become

noticeable. At the same time, the sale reduces the scope of local responsibilities, which enables

political actors to score points by streamlining administration. However, this hope for release

may ultimately prove elusive for two reasons. First, the privatization of public property does not

free a municipality from its legal responsibility [Wolf 1999: 12].19 Second, the public may not

recognise the factual reduction of local political responsibility as such. If voters stick to the

conviction that municipalities still hold responsibility for local affairs, the local actor’s loss of

influence in the given area may negatively affect his or her track record. In any case, it is

necessary to note that, contrary to politicians’ expectations, in hybrid spaces the given

authority’s responsibility remains nearly unchanged, but its ability to take action is reduced,

and so is its influence on the city’s socio-spatial development.

5.2.2 REASONS FOR PRIVATIZATION: SECURITY

The architecture of safety seems to be one of the most visible developments in privatized

spaces. Public green areas, fenced in but to be overlooked and guarded, private security officers

on patrol in malls and shopping centers, skywalks limiting access to particular clientele, and the

ubiquitous cctv are only some examples of the safety-driven rearrangement of urban spaces. To

ensure citizens feel protected and to create the impression that the city’s development is under

control, a local concept of safety, cleanliness and service is seen as an answer to people’s

demands. A sense of security seems to be decisive for the citizens’ opinion about the growing

architecture of safety. This sense of security, however, is not so much influenced by the real

security situation but by the subjective appraisal of individuals. Even though politicians like to

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advertise falling crime figures, this may not conform with the public’s view if people feel

increasingly insecure and see 19 Wolf’s legal opinion refers to the responsibility of the public

authority for airspace security in the case of two airplanes crashing after having been misguided

by a private provider of air navigation services. See the sentence delivered on 26 June 2006 by

the German District Council of Konstanz in Bashkirian Airlines vs. the Federal Republic of

Germany. Sylke Nissen: Urban Transformation 1143 themselves – though largely at odds with

the facts20 – as potential crime victims [van Dijk et al. 2005]. Called ‘moral panic’ in

criminology, this phenomenon mainly depends on the occurrence of specific forms of crime,

how they are presented in the mass media, and the fact that there is a receptive audience for

these presentations. It is difficult for local administrations to bridge the gap between the real

security situation and the citizens’ sense of security. But even so, fighting crime is an important

and promising political arena and for various reasons: Police work can be controlled and

managed locally. Citizens support funding security more than other expenses. A majority of the

population benefits from declining crime rates and in return places general trust in its local

representatives. Thus, in the field of crime policies political actors are able to demonstrate their

ability to take action to compensate for their inability to do so in other policy areas. Fighting

crime has consequently become one of the most prominent communal tasks, and not just in

the US, where the ‘broken windows’ discussion triggered it all off. However, if a local

administration is overwhelmed by the task of providing security, and the police’s financial and

human resources are insufficient to increase the sense of security, the municipality runs the risk

of being unable to satisfy citizens’ expectations. In this case, the municipality may see

privatizing public property as a way of reducing or shifting the responsibility for maintaining a

safe environment to the new owner. At this stage of development urban safety is barely a

political task any more. Instead, public safety is increasingly the subject of activities in the

private sphere, is secured less by the police, and lies more and more outside democratic

control. Many observers object to the legal, political and social implications of ever greater

tendencies towards privatization. ‘The “filtering” of the undesirable from the desirable users

brings on an atmosphere of discrimination that is detrimental to the well-being of both

marginal and mainstream groups.’ The city becomes generally less open to and less intended

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for use by all citizens and is increasingly restricted to ‘citizen-consumers’. Access and inclusion

more and more depend on people’s ability to convincingly assume the role of the consumer.

The waning of the public city and the intensified commercialization of city centres, which is fed

by the abandonment of public property, are bringing about a new definition of the citizen’s

role. A citizen is one who acquires mobile or immobile property. Thus, in hybrid urban spaces

the notion of the citizen is again beginning to be tied to property.

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Case Study: Hong Kong

Privately Owned Public Space (POPS) Regaining Publicness in POPS

Shopping Mall as Privately Owned Public Space

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STATISTICS

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61

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Climate change

Comparing to the other cities in Europe and US, Hong Kong is the most hot and

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humid city. People prefer to stay in indoor area with air conditioning instead of open areas. Shopping malls provided comfortable indoor environment which explain one of the reasons

that open public space is not successful in HK comparing to those in the West.

DEFINITION OF PUBLIC SPACE

1. Is open and accessible to all citizen regardless of gender, age, ethnicity, race, or socio-economical level.

2. No fees or paid tickets are required for entry nor are the entrants discriminated on the basis of their background.

3. Should not be applied any rules or restrictions other law ordinance, e.g. regarding dress-code, trading, begging, advertising, etc.

4. Cannot limit one’s speech beyond what is reasonable.

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“If the members of the public had no right whatsoever to distribute leaflets or engage in other expensive activity on government owned property… then there would be a little if any opportunity to exercise their rights of freedom of expression. “

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67

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Now the question arises ARE THE PUBLIC SPACES DEAD?

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AIM

QUALITY SHOULD BE ACHIEVED IN PUBLIC SPACES

ACCESSIBLE FOR ALL USER FRIENDLY AND LIVELY PLACE FOR SOCIAL INTERACTIONS UNIQUELY STIMULATION EXPERIENCE

DESIGN GUIDELINES

EXPANSION OF THE DESIGN GUIDELINES WORK WITH THE URBAN CONTEXT PROGRAMS AND ACTIVITIES INTEGRATION COMPREHENSIVE DESIGN GUIDELINES

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71

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CONCLUSION:

Public Spaces encompass a wide array of spaces, from old historic centers to suburban developments. Their form, uses and maintenance raise a host of important questions regarding urban planning from the local to the metropolitan scale. If they are considered today as assets for urban renewal and new developments – economic incentives, public health and well-being, image of the city, mobility, conviviality – our opinion is that the need and the success of public space is before anything else predetermined by its ability to bring together two main and necessary quality upon which all the rest depends: accessibility and communication. Of course, as we have seen, each of these criterions can be declined in various degrees, from exclusive to open to all, and from communitarian to anonymous. It is in the ability of elected officials, designers, managers and users that the right dosage resides and that larger issues can beCollectively addressed.

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20. Mitchell, D. ibid.

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26. Graham, Stephen and Marvin, Simon. Ibid.

27. Graham, Stephen and Marvin, Simon. Opcit.

28. Interview with leading retailer.

29. Police Reform Act 2002.

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34. Mitchell, D. Ibid.

35. Layard, Richard (2005) Happiness. Lessons from a New Science. Penguin.

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