DA: Case doesn’t involve First Amendment issue

Centre County District Attorney Michael Madeira cannot recall ever prosecuting a member of the press. But today, he will be faced with the case of a photographer charged with exciting a riotous crowd by “taking photographs” — and a defense attorney accusing Madeira of violating the First Amendment.
The Daily Collegian photographer Michael Felletter was charged with failure to disperse and disorderly conduct while on assignment during the Oct. 25 riot — charges his defense is calling “inappropriate” and “potentially dangerous.”
Felletter (junior-visual journalism) will contest his charges at his preliminary hearing, which is scheduled for today.
Andrew Shubin, a private attorney who took the case on behalf of the American Civil Liberties Union, said it would be a mistake to hold “a photographer responsible for covering news.”
But Madeira said he is not convinced that the case revolves around a constitutional question.
“This isn’t a First Amendment issue,” Madeira said. “This isn’t about the press taking pictures.”
The prosecutor said Felleter’s press pass does not protect him from police orders.
“It isn’t about who he was or who he was doing it for,” Madeira said. “The allegation is that the police gave a lawful order that he refused to obey.”
Police said Felletter was seen taking photographs the night of the riot — including pictures of an officer attempting to make an arrest — and was told to leave the area multiple times before his driver’s license was taken.
“[The defendant] was participating in a riot by taking photographs that would excite the crowd and encourage destructive behavior, and refused orders to disperse,” according to the criminal complaint.
Robert Richards, co-director of the Pennsylvania Center for the First Amendment, said the prosecution might have a tough time proving the photographs Felletter took excited the crowd, as the criminal complaint suggests.
But the burden of proof falls on the District Attorney’s office to show the police did indeed secure the area at the time, he said.
Police have a right to contain the space — and if they do, members of the media are not above the law. They have to follow police orders just as the general public does, Richards said.
Shubin maintains Felletter did not break any laws.
At the request of the District Attorney’s office, Shubin supplied First Amendment and constitutional case law, but has not received a response yet.
With the rights of the people in the media coming into question, Shubin still does not expect Madeira to back down.
“I don’t have any information that he is going to walk away from the case,” he said.