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Motion: Charge unconstitutional

A Collegian photographer’s lawyer served a motion to make a First Amendment case against his charges.
A motion served Wednesday formally spells out why attorney Andrew Shubin believes the prosecution of Collegian photographer Michael Felletter violates the First Amendment.

Felletter was bound over for trial at his preliminary hearing last month on a misdemeanor charge of failure to disperse in connection with the Oct. 25 riot. According to the criminal complaint, Felletter “was participating in a riot by taking photographs that would excite the crowd and encourage destructive behavior, and refused to orders [sic] to disperse.”

Felletter was originally also charged with four other counts of misdemeanor failure to disperse and a misdemeanor charge of disorderly conduct, but those charges were dropped at the preliminary hearing.

Shubin, who is representing Felletter pro bono on behalf of the American Civil Liberties Union, wrote in his motion that Felletter’s charge should be dismissed because the photographer’s prosecution violates the First Amendment and a section of the Pennsylvania Constitution that protects free speech. Shubin also wrote that the commonwealth failed to provide enough evidence to substantiate the charge.

“Because the Commonwealth’s dispersal order to Felletter was based upon his status as a member of the press, not in spite of, it violated the First Amendment, and as such, the charge must be dismissed,” according to the motion.

Centre County District Attorney Michael Madeira said he had not seen the motion yet but Shubin and the commonwealth had disagreed for a long time about whether the First Amendment was relevant to Felletter’s case.

“We say it’s not. He says it is,” Madeira said. “While we are strongly in favor of a free press, this case has nothing to do with a free press.”

Madeira said the commonwealth has a period of time to respond to the motion, and a hearing would probably be scheduled for both sides to present their arguments.

Shubin wrote that Felletter’s coverage of the riot was valuable to both citizens and the government.

“Indeed, the Court should take notice of the irony of this prosecution where, as here, the State College Police ultimately took Felletter’s photographs off The Daily Collegian’s Web site and published them on their own site, facilitating the identification of others who were ultimately prosecuted,” according to the motion.

Shubin also argues in the document that the commonwealth failed to provide enough evidence against Felletter because a photograph shows him on the sidewalk, moving away from the scene at the time of his arrest. The picture also shows other students casually walking away and not acting disorderly, according to the motion.

Clay Calvert, co-director for the Pennsylvania Center for the First Amendment, said showing police singled out Felletter would help the defense’s case.

“In general, members of the media are not exempt from generally applicable laws,” he said.

Terry Casey, the Collegian’s editor in chief, said he shared Shubin’s concerns that Felletter was singled out.

“There are legitimate concerns there,” he (senior-journalism) said. “As both Mike’s editor and as a friend of his, I continue to stand by him, and I hope that this final charge is dropped.”

Shubin did not return calls for comment.