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February 28th, 2012
09:46 AM ET

Judge’s dismissal of atheist's harassment claim against Muslim makes waves

By Dugald McConnell and Brian Todd, CNN

(CNN) - A protester who ridiculed the Muslim prophet Mohammed claims he was assaulted by a Muslim who was offended by the stunt, but a judge has sympathized with the alleged perpetrator, in a case that has drawn national attention.

Self-proclaimed atheist Ernie Perce marched in a Halloween parade in Mechanicsburg, Pennsylvania last October, dressed in a costume mocking Mohammed.

In a YouTube video he posted, Perce can be seen wearing a long fake beard, a white turban and green face paint, calling out provocative phrases like: "I am the prophet Mohammed! Zombie from the dead!" Perce and someone else in a zombie-themed pope costume are carrying a banner that reads "The Parading Atheists of Central Pennsylvania / Ghoulish – Godless – God-Awful."

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Then a man who is not seen on the video can be heard saying, "Take it down." Amid sounds of a scuffle, Perce can be heard saying "Hey, he's attacking me!"

Perce told CNN affiliate WHTM that the man “grabbed me, choked me from the back, and spun me around, to try to get my sign off that was wrapped around my neck."

Based on Perce's complaint, a Muslim named Talaag Elbayomy was charged with harassment. But on December 6, District Judge Mark Martin dismissed the case, saying it was one person's word against another's, and that there was no other evidence or eyewitness testimony to prove that Elbayomy had harassed or touched the alleged victim.

The judge also scolded Perce, saying he’d been needlessly provocative on an issue sensitive with Muslims.

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"You have that right, but you're way outside your bounds of First Amendment rights," Martin said, according to a recording Perce made of the court hearing. "I think our forefathers intended that we use the First Amendment so that we can speak our mind, not to piss off other people and other cultures, which is what you did."

The judge went on to point out that in many Muslim countries, ridiculing Mohammed could warrant the death penalty under Islamic law.

Critics say Martin's lecture shows he used Muslim cultural grounds to excuse a deplorable assault, and failed to defend an atheist's First Amendment rights.

"That's greatly disturbing to people that believe in free speech," said George Washington University law professor Jonathan Turley. "You can say things that are hurtful to others. We hope that you don't, but you most certainly can be protected. People like Thomas Paine spent his entire life ticking off people across the colonies."

Former terrorism prosecutor Andrew C. McCarthy, writing on the blog of National Review, accused the judge of allowing the Muslim suspect to invoke a "Sharia defense – what he claimed was his obligation to strike out against any insult against the prophet Mohammed."

And Perce said of Judge Martin, "He let a man who is Muslim, because of his preference of his culture and his way of life, walk free, from an attack."

The judge, in a phone interview with CNN, defended his ruling.

"The commonwealth didn't present enough evidence to show me that this person is guilty beyond a reasonable doubt," Martin said. "That's why I dismissed the case. Nothing as nefarious as what everyone's thinking, that I'm a Muslim or I'm biased. I'm actually a Lutheran."

Martin added that he has served three tours of duty, totaling more than two years, in Iraq and Afghanistan, where he learned more about Muslim culture.

"It just amazes me that people think that I'm biased towards Islam," he added. "I got sniped at once, I got ambushed once, I got attacked by a mob once... I've served close to 27 years in the military - and have gone overseas - exactly to preserve that right [freedom of speech.]”

But Martin also repeated his criticism of the atheist protester. "With rights come responsibilities. The more people abuse our rights, the more likely that we're going to lose them," he said. " We need to start policing up our own actions, using common sense, in how we deal with others."

Attorney R. Mark Thomas, who represented the Muslim suspect, blamed Perce for the Halloween altercation. "The so-called victim was the antagonist," he told WHTM. "I think this was a good dressing down by the judge."

A blog post by the group American Atheists disagrees. "That a Muslim immigrant can assault a United States citizen,” it says, “in defense of his religious beliefs and walk away a free man, while the victim is chastised and insulted... is a horrible abrogation."

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- CNN Belief Blog

Filed under: Atheism • Halloween • Islam • TV-The Situation Room

soundoff (2,453 Responses)
  1. Bill Deacon

    And what do you say to the scientist you recently announced a discovery that they identify as Jesus's family tomb in Israel. When science and faith meet, there you will find the truth. They are not diametrically opposed systems my friend

    February 28, 2012 at 1:08 pm |
  2. Aava

    Ssshhhh...Father Rick Santorum might read this column. Sssshhh

    February 28, 2012 at 1:06 pm |
  3. Leucadia Bob

    [youtube=http://www.youtube.com/watch?v=-J3ZiiUWkQs&w=640&h=390]

    February 28, 2012 at 1:06 pm |
  4. There is evidence

    To those defending the judge because they believe there is not evidence, know that the defendant admitted to assaulting the plaintiff. Add to that, the judge refused the video of the plaintiff being assaulted as evidence. It seems logical to believe the judge did not want to punish the defendant. It is the judge's job to review all of the evidence, and his failure to do so warrants at least a suspension.

    February 28, 2012 at 1:06 pm |
    • Not a Scholar

      As I read it the defendant did not admit assaulting anyone. He did not admit to anything. Also, the video did not show the defendant. There are rules of evidence and judge must follow. Of course the things I post here are after reading the details in this article so I take it as what it is.

      February 28, 2012 at 3:16 pm |
  5. Peter

    If the hate spewed by the KKK is protected by the First Amendment, why isn't this knucklehead? Or does this mean that I can start a fight at the next Klan rally in Central Pennsylvania and expect assault charges to be dropped?

    February 28, 2012 at 1:05 pm |
    • justageek

      Try it and let us know how it works out for you.

      February 28, 2012 at 1:07 pm |
  6. Bob Johnson

    Conservatives hate atheists unless the atheists are bashing Muslims. Funny how quickly they will jump in bed with the "devil." Deep down they are just jealous that Muslims will fight to defend their faith, making them cowardly versions of the people they hate the most. The judge here was off-base about the First Amendment, but that was not the basis for his decision. Sharia law has nothing to do with this. He was merely making the point that this obnoxious punk is lucky to live in a country with these rights, and thus should use discretion when exercising them. Otherwise, our rights might eventually get eroded and we will end up like those other unfortunate countries

    February 28, 2012 at 1:04 pm |
    • Bill Deacon

      Jealous? I doubt it. The Christian heritage is rooted in Christ model of turning the other cheek against aggression. A proper perspective would be to say that Islam is incapable of bearing peaceful resistance against its detractors and must resort to violence.

      February 28, 2012 at 1:11 pm |
  7. Anonymous

    "With rights come responsibilities. The more people abuse our rights, the more likely that we're going to lose them,"

    Apparently the judge is confusing privileges with rights. Rights cannot be taken away (well without force). Time to get this guy off the bench.

    February 28, 2012 at 1:04 pm |
  8. Matt

    All religion is unsubstantiated idiocy, Islam is just the most violent and oppressive when it comes to any questioning of its moronic suppositions. We should openly promote the question and ridicule of Islam (and all religion) and have the full support of the secular US law to do so. F Islam and the phony flying horse that it rode in on.

    February 28, 2012 at 1:04 pm |
  9. JPX

    Making fun of Mohammed is like poking a beehive with a stick. At this point it's fairly obvious that the cuture is a thousand years behind modern thought. In other words, you are not dealing with rational people. The judge was wrong to rule in this manner, of course, but I'm certain the judge did not want to deal with all the nonsense that would come from a "guilty" verdict.

    February 28, 2012 at 1:04 pm |
    • Sam

      The problem is when that culture starts to permeate the west with its primitive values.

      February 28, 2012 at 1:11 pm |
    • sharky

      Then we just lost our freedom in this country and bowed to Islam.

      February 28, 2012 at 1:12 pm |
  10. kimba

    OK – I can understand this if the judge dismissed because of lack of evidence but what's with the dressing down of the plaintiff then? He has his right to freedom of speech however ill-advised it may be – the judge shouldn't be telling him he's outside the bounds of his 1st amendment rights – he wasn't. The purpose of free speech is to have the right to make incendiary statements without suffering consequences such as physical assault. Further, it seems like a video should be pretty good evidence..just saying.

    February 28, 2012 at 1:03 pm |
  11. cattleprodsodomy

    This is kind of like the scene in lethal weapon 2 where bruce willis is wearing the sign. You're free to wear the sign but don't complain when someone gets mad and beats you down for it.

    February 28, 2012 at 1:02 pm |
    • COlady

      Bruce Willis was never in Lethal Weapon 2.

      February 28, 2012 at 1:05 pm |
    • Matt

      Try Die Hard 3 (Die Hard with a Vengeance). Hilarious scene.

      February 28, 2012 at 1:06 pm |
  12. Paul Vulaj

    In reading quite a few of the above comments its clear that people are ignoring the fact the the judge first made a ruling based on the facts before him. It is the judges courtroom and he can lecture a defendant or plaintif if he choses to do so. I am a practicing Catholic and i applaud the judges decision and scolding of the defendant.

    February 28, 2012 at 1:01 pm |
    • Sam

      Would you assault that guy who was dressed as a pope in that video?
      What about the police report that was filed at the scene?

      February 28, 2012 at 1:03 pm |
    • Paul Vulaj

      Well sam you have a point. As repulsive as a demonstrators views and statement might be i have no right to do so even if it offends my beliefs. Im simply pointing out that the guy that claimed he was assaulted did not prove his case. I can assure that it is the judges discretion whether to lecture you or not.

      February 28, 2012 at 1:11 pm |
    • Bill Deacon

      Andrew is right. We are free to speak truth to power but that doesn't mean power won't crush you.

      February 28, 2012 at 1:16 pm |
    • Mw

      This burns me up! It is not the Judges courtroom, it is by law the legal property of the legal system in which this Judge is expected to represent without bias! This Judge Judy behavior should never be considered legal prudence. I for one see that this guy, regardless of his poor judgement should appeal in whatever way he can. If this was a rally of some kind-there would be charges abounding; maybe even on both sides. This was a Halloween prank that delivered results as expected. Point proven. What this judge did was declare it open season to injure others physically who do not share your ideals.

      February 28, 2012 at 1:22 pm |
  13. Squeezebox

    What I don't get is where Muslims get off trying to impose their rules on people who don't even accept their religion in the first place. I'm not a Muslim, so I should be able to say whatever I want to about Mohammed. You can't legislate salvation. The Catholics tried it in Spain. Failed badly.

    February 28, 2012 at 1:01 pm |
    • Gene

      Squeezebox, reading your first sentence, I'm certain you can't be a Republican.

      February 28, 2012 at 1:09 pm |
    • sharky

      Gene–

      Can't be a Democrat either as they just bend over and take Islam up the bum.

      February 28, 2012 at 1:28 pm |
  14. drgirl

    I think the judge is exactly right. If you have something that you strongly believe in that might offend someone else, you should just keep it to yourself. Like abolitionists, freedom riders, civil rights protesters (they were just asking to be hosed and attacked by dogs).

    By the way, since I am sure the judge offended many atheists and religious Americans who believe in our rights, by his own logic, he should have just kept his mouth shut.

    February 28, 2012 at 1:01 pm |
  15. bff

    I think the judge is right giving this gentle admonishment to the defendant.
    I mean, what a jerk (and coming from another atheist):
    "I think our forefathers intended that we use the First Amendment so that we can speak our mind, not to p!ss off other people and other cultures, which is what you did."
    However, that admonishment should only have been given after applying the law against the perp.

    February 28, 2012 at 1:01 pm |
    • Dan

      Our forefathers historical use of free speech angered plenty of their contemporaries, especially those across the pond. That was the whole point.

      February 28, 2012 at 1:29 pm |
    • sharky

      1) It was a Halloween parade. Should we stop dressing as witches to not offend the so called witches of the world? How about not dressing as ghosts, as I am sure they are probably really angry to be depicted as casper.

      2) Making fun of Mohammad is not bad to anyone but Muslims, and this is not the Middle East. We make fun of Jesus constantly in this country and Christians do not get into a tizzy.

      February 28, 2012 at 1:31 pm |
  16. bp

    A very cynical move by Perce (who is getting the publicity he wants as a result of this). He could have done the same dressed as Jesus Christ, but knew that going as Mohammed instead would get him support from anti-Islamic bigots, who are far more numerous in America than anti-Christian bigots.

    February 28, 2012 at 1:00 pm |
    • sharky

      Nice hypocritical post there. So Perce should attack Christianity, but not Islam? This is the US, you are now bowing to Islam.

      February 28, 2012 at 2:16 pm |
  17. Andulamb

    What if Perce had been mocking the guy's dead mother? Who would you side with then? The point is that Perce was being purposely inflammatory. The judge said two things: you didn't prove Elbayomy attacked you, and you were asking for it. He was right on both counts. This has nothing to do with Islam.

    February 28, 2012 at 1:00 pm |
    • drgirl

      If there was insufficient evidence to prosecute the assailant, case closed. No need to add his personal opinions in his role as a representative of the government. He is free to tell his buddies at the club about what he thinks, but as the government representative in this case, admonishing a citizen for exercising his rights is inappropriate.

      February 28, 2012 at 1:08 pm |
    • sharky

      Perce was dressing up for Halloween.

      Would you have been saying the same thing if he was dressed as Zombie Jesus? Nope, you would be laughing and cheering him on.

      Congrats you just submitted to Islam.

      February 28, 2012 at 2:18 pm |
  18. beelzabarber

    We need more judges like this one. Common sense should prevail over the law in some cases. You technically have the right, but you don't need to exercise it JUST to offend people and get a rise out of somebody.

    February 28, 2012 at 1:00 pm |
    • Brenda

      Yes, the Atheist was an idiot and disrespectful but by dismissing the case the judge sets the Muslims up to think that they can attack and kill anyone who they believe have insulted their religion. This is America, we have rights as well as laws. This case starts us down the path to turn our nation into one with Islamic laws and many people (especially liberals) are stupid enough to allow it to happen.

      February 28, 2012 at 1:06 pm |
    • Paul Vulaj

      Mr beelzebarber i disagree with you sir. The law most certainly prevailed. The judge in this case made his decision based on the facts. I most certainly agree with the judge scolding the idiot in the courtroom!

      February 28, 2012 at 1:06 pm |
  19. Whaaaa?

    "You have that right, but you're way outside your bounds of First Amendment rights," Yes, this statement pretty much sums up the muttled thinking of the judge. If there were insufficient evidence to prosecute the assault, he should have left it at that, but apparently the judge likes to have it both ways. You have the right, but you don't! It seems to me if the muslim admitted that he was provokes into the attack, then he has admitted guilt, And the judge decided to look past that simply because the accused was defending a religion that justifies violence on just about any pretense.

    February 28, 2012 at 12:59 pm |
    • justageek

      The Muslim admitted trying to take the sign...that's it. No admission of assault.

      February 28, 2012 at 1:05 pm |
    • Not a Scholar

      You should go to a courthouse sometime and spend a little time seeing how judges handle their courtroom. Yes they are there to pass judgement according to the laws of the land. But there is a lot more to it than just judgement. When a lawyer/judge studies, he/she not only learns the laws, but also the INTENT of that law. What was the legislature's purpose? What were they thinking or trying to achieve when writing these laws. I think a judge would be remiss in the duties of the bench if the intent was never discussed. I don't know the evidence to form an opinion on the charges so I will assume the judge made the right decision. However, if this article is correct, I will side with the judge when he berated the instigater in this case. Religious Freedom never invoked the right to belittle another man's religion and Freedom of Speech should be used with MUCH responsibility. Imagine how this article would be written if instead of only on Muslim reacting it had been a group. Look at the response in Afghanistan to the burning of the Quran.

      February 28, 2012 at 1:40 pm |
  20. Andrew Vrba

    Freedom of speech doesn't free you form accountability for what your speech causes.

    February 28, 2012 at 12:59 pm |
    • I'm The Best!

      Yes it does. Or else it isn't freedom of speech

      February 28, 2012 at 1:08 pm |
    • justageek

      "Yes it does. Or else it isn't freedom of speech" – It didn't free me from getting whacked a few times when I was younger for saying what was on my mind when I should have showed a little constraint. I guess though the beatings were technically 'free'.

      February 28, 2012 at 1:18 pm |
    • Not a Scholar

      Your freedom ends where infringement on another begins. Without responsibility there is NO freedom.

      February 28, 2012 at 1:43 pm |
    • sharky

      Freedom of speech also does not hold a religion superior to freedom of speech.

      February 28, 2012 at 2:22 pm |
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The CNN Belief Blog covers the faith angles of the day's biggest stories, from breaking news to politics to entertainment, fostering a global conversation about the role of religion and belief in readers' lives. It's edited by CNN's Daniel Burke with contributions from Eric Marrapodi and CNN's worldwide news gathering team.