On the last Saturday in January, news began to spread of President Donald Trump’s executive order (issued the day before) that temporarily suspended entry into the United States by passport holders from seven countries—Syria, Sudan, Iran, Somalia, Libya, Iraq, and Yemen— and permanently shut down admission of Syrian refugees. By late morning, a plethora of non-travelers were racing to the nation’s airports: elected officials bent on rescuing some of those trapped in immigration limbo by the order, lawyers who’d volunteered to help detainees and their families, hordes of protesters, and, inevitably, reporters. Among the first journalists to arrive at John F. Kennedy’s Terminal 4, the airport’s main international hub and a prime entry point into this country, was Charlotte Alter from Time.
“I heard there was going to be a big protest about the immigration ban,” Alter later told me. When she arrived, she was wearing a press pass and had her notebook out. “We were asking the Port Authority police officers, the ones in uniform … ‘Hey officer, where are people being held?’ ” She was surprised by the response: “They were like, ‘You can’t be in here. You can’t be in here. This is private property.’ ”
Alter, in an airport traversed by some 57 million passengers a year, couldn’t fathom how she could possibly be on private property. Then, some of the uniformed officers left and returned with a terminal representative, a man in a suit who refused to identify himself. According to Alter, he told the small cluster of reporters, “You have to leave. We don’t have any press here.”
“Who says we have to leave?” Alter recalls asking. “And he said, ‘The client.’ ”
Even though JFK is owned by the city of New York and is operated by a public agency, the Port Authority of New York and New Jersey, most of the terminals are private fiefdoms maintained—and in some cases built—by the airlines. T4 is unusual only in that it isn’t operated by an airline but, since late 1990s, by a subsidiary of the Dutch company that runs Amsterdam’s Schiphol Airport.
For Alter, it was her introduction to a growing trend: many of the places in which Americans spend a lot of our time, places that may look and feel public are, from a legal perspective, private. Generally, we only notice the difference if we try to exercise our First Amendment rights, whether that means gathering signatures for a petition, peacefully protesting, or, as Alter was doing, trying to report a news story. Consider, for instance, how in 2015 an unscheduled closing famously shut down a Black Lives Matter protest at Minnesota’s Mall of America.
City University of New York government and public affairs professor Anthony Maniscalco has written a book, Public Spaces, Marketplaces, and the Constitution (SUNY Press, 2015), about the complex puzzle of overlapping gray areas that we routinely navigate. He explains that a place like Terminal 4, although publicly owned, was built for a very specific purpose, air travel, which the Supreme Court has ruled “excludes expression.” That ruling, Maniscalco adds, tends to undercut the trendy idea that airports are the new cities.
“What you’ve got is an amazing amount of public land being taken off line and reserved for private developers and property owners. The more stuff that’s put into the private property hopper, the more concern I have about the viability of First Amendment expression around the country,” Maniscalco told me. “The line between privately owned and publicly accessible is really beginning to blur. I think that’s going to represent a real challenge going forward, particularly under this administration.”
By the simple fact that he is our first real-estate developer president, Trump is putting new stress on the old fault lines that exist wherever public overlaps with private. Take, for example, Trump Tower, that shiny 58-story glass trophy building with its 80-foot-tall “public” atrium decorated in shimmery pinkish marble and equipped with its own waterfall. It has public passageways, seating areas, and outdoor terraces that are mandated by law to be open from 8 a.m. to 10 p.m., because the atrium is what’s known in zoning parlance as a “privately owned public space” (POPS). This oxymoron describes a commonplace circumstance in New York City, created when a developer like Trump gets a zoning bonus (in his case an allowance to build 20 stories higher than the rules stipulated) in exchange for including a public amenity in the project.
These days, Trump Tower is more famous but less public than it once was. On a normal weekday when there are no protests and the president himself is in Washington, gaining entrance requires navigating a maze of metal police barricades, walking past a phalanx of NYPD officers who appear suited up for warfare, and allowing one’s bags to be x-rayed by uniformed Secret Service officers.
Once inside, Trump’s aesthetic is still as flashy as a disco ball (the building is vintage 1983), but its public amenities are somewhat hidden. Outdoor terraces are on the fourth and fifth levels, and they are hard to find (the fourth floor terrace is currently closed for construction). The public restrooms are down a long hallway in the basement. A marble bench, part of the public seating mandated by the POPS agreement, was banished sometime over the past decade in favor of a counter selling Trump-branded merchandise. When this disappearance was reported by the New York Times in 2015, the city forced the Trump organization to replace it. Now an unwelcoming bench made of black steel slats sits across from the tower’s elevators.
That bench, however, has taken on unexpected significance. “Since Election Day,” wrote Jerold Kayden, an urban planning professor at the Harvard University Graduate School of Design, in a January essay for the Boston Globe, the bench “has played an outsized role in our democracy. Each morning, the bench fills with journalists and their cameras as they record who rides up and down the elevators to meet with Trump or his transition team.” And the rules that govern POPS make it nearly impossible to throw the reporters off the bench.
The mix of public and private interests in and around Trump Tower, however complex, is nothing compared to those surrounding Washington, D.C.’s Old Post Office Building, which the Trump Organization leased from the General Services Administration in 2013 and renovated into a Trump International Hotel. For one thing, the arrangement has spawned still-unaddressed legal issues, like a stipulation in the agreement that states, “No elected official shall be admitted to any share or part of this lease or to any benefit that may arise there from.”
Moreover, during inauguration week, reporters, including those just planning to eat breakfast, were reportedly banished from the premises. Is this legal? According to Trump’s lease with the GSA, the building’s historic Clocktower (which won’t reopen until next year) must be publicly accessible, but the management has more discretion over other areas of the building. Still, Washington, D.C., law forbids denying “full and equal enjoyment” of “public accommodations” for a variety of reasons, including “source of income.” Which would seem to suggest that you can’t prevent a reporter from eating breakfast simply because he or she is a reporter.
The hotel, like many of Trump’s holdings, has become a magnet for protesters, but as ARCHITECT contributor Amanda Kolson Hurley reported in the Washington City Paper, “Thanks to the terms of the lease, the Trump Organization controls the small plaza in front of the hotel. Anytime it wants to evict protesters, it can.”
The project is a perfect symbol of the conflicts that can arise with a real estate developer as president in a world where the distinctions between public and private have become difficult to discern. But it merely hints at greater conflicts to come. As it happens, the one Trump campaign promise that even his fiercest detractors can, perhaps, get behind is infrastructure spending. The Trump campaign’s website says he plans “investments in transportation, clean water, a modern and reliable electricity grid, telecommunications, security infrastructure, and other pressing domestic infrastructure needs.”
The details of his plan remain unclear. But a list of 50 “emergency & national security projects,” including a new Kansas City airport terminal paid for by Southwest and other airlines, a privately funded high-speed rail line connecting Houston and Dallas/Fort Worth, and a federally funded rehab of Chicago’s Union Station were reportedly given to the National Governors Association in December by the Trump transition team. The document proposes $137.5 billion in infrastructure spending, with 50 percent of the funding theoretically coming from “private investment.” The amount of privately owned and operated “public” space appears destined to increase dramatically.
The Senate Democrats have responded to Trump’s talk of infrastructure by issuing their own plan for a trillion dollars of spending, funded mainly by closing corporate tax loopholes. In other words, the plan proposes—radical idea!—public funding for public infrastructure. There is practically no chance of that proposal going anywhere.
Meanwhile, the AIA’s New York chapter has responded to President Trump’s not-yet-fleshed out infrastructure intentions with high-minded but vague statements of principle: “Public-private partnerships should achieve public initiatives where there is a clear benefit to the public good and where standards of quality and service are assured,” wrote the organization in a recent release.
I emailed Kayden, a leading authority on POPS, to get his take on how effective these arrangements can be. He wrote back: “The keys to effective public-private partnerships are thoughtfully drafted legal contracts describing with clarity and metrics the ‘public’ obligations of the private owner or operator, as well as established government institutions charged with monitoring the deal and enforcing it when necessary.” A few minutes later, Kayden sent me a second email: “It's the fox guarding the henhouse. From the hen's point of view, the outcome may not always be ideal.”
Which brings us back to Trump Tower. Its atrium, in fact, connects directly to a much nicer, more generous POPS, the atrium of 590 Madison Avenue, originally called the IBM building, which was designed by Edward Larrabee Barnes. Completed a year earlier than Trump Tower, the IBM building has long been treasured for its daylight-filled public room, with its stands of bamboo and plentiful seating. (Now, of course, the building is almost as heavily barricaded as its illustrious neighbor, lest a truck bomber decide to barrel from one atrium to the next.)
Stop in sometime and compare the two atria. Most of the visitors to Trump Tower these days appear to be tourists. They navigate security, ride the escalators they’ve seen on TV, snap a few selfies, and leave. 590 Madison, by contrast, is a convivial oasis, a club that it costs nothing to join, with lightweight tables and chairs hosting a cross-section of Midtown. Everyone seems to enjoy the space: office workers eating lunch, people lost in thought, a startup team having a meeting, the discreetly homeless escaping the cold. Decide for yourself which of the two projects fulfills its obligation in a transparent, straightforward, public-spirited way.
