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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. The Ultimate Authority on Everything!

    "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.]”

    So, to you Judge Martin I say, "Good for you. Oh, so very good for YOU!" Basically, you fought to preserve OUR Freedom of Speech so long as we never exercise that right. Right? Just curious, but did you attend law school with Rick Santorum. You both seem to be suffering from the same brand of STUPID.

    .................................

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

      Call for judge martins removal>>>Call for the judges removal from bench>>>>>http ://florida-family.org/take_action_form. php?message=63^

      February 28, 2012 at 1:44 pm |
  2. Behonest

    I do see the points from both side, however, haven't each individual have had agreed upon on, and sworn to follow and obey the law of that country when this individual became a citizen of that country? It is not like the US has made it a secret about their first Amendment right. If you can't stand the heat, get out of the kitchen. Nope, I am not an American citizen.

    February 28, 2012 at 1:42 pm |
    • DaEvin

      We need this judge out>>>Call for the judges removal from bench>>>>>http ://florida-family.org/take_action_form. php?message=63^

      February 28, 2012 at 1:43 pm |
    • irongoat81

      EXACTLY. Being offended is just being American!

      February 28, 2012 at 1:47 pm |
  3. Jake

    "We need to start policing up our own actions..."

    Oh right, because atheists are such a loud, overbearing voice in American religion today and they really need to start cutting back and giving everyone else breathing room. Give me a break. Provocative it may be, but the point this guy was making (your religion is your religion, not everyone's) is a good deal nicer than most of the things I've heard self-professed Christians say about Islam and its followers. That this person's costume was the straw that broke the camel's back for this judge is almost beyond belief.

    February 28, 2012 at 1:41 pm |
    • DaEvin

      We need to remove this judge for abandoning our American rights: Call for the judges removal from bench>>>>>http ://florida-family.org/take_action_form. php?message=63...

      February 28, 2012 at 1:42 pm |
  4. holdem

    It doesn't matter what religion you are, if you don't have proof, you don't have a case.

    February 28, 2012 at 1:41 pm |
    • reason

      There were witnesses as seen in the video and the attacker even admitted assaulting him.

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

      @reason – there was no assault charged.

      February 28, 2012 at 1:49 pm |
  5. svann

    "I am shocked. Shocked and appalled that someone would read emails they had no right to".
    The Corporation

    February 28, 2012 at 1:41 pm |
    • DaEvin

      Call for the judges removal from bench>>>>>http ://florida-family.org/take_action_form. php?message=63......

      February 28, 2012 at 1:41 pm |
    • svann

      Bleh sorry. posted to wrong thread. :-0)

      February 28, 2012 at 1:41 pm |
  6. reason

    [youtube=http://www.youtube.com/watch?v=VVjmJATV73Q&w=640&h=390]

    February 28, 2012 at 1:39 pm |
  7. W

    It is too bad that this guy didn't get punched in the mouth. You may have the right to free speech but whe you deliberately go out of your way to antagonize someone for their beliefs you deserve what you get. BTW I am not Muslim not do I really sympathize with most of their complaints but people like this athiest are just as irritating as the so called "irrational" who believe in a higher being. Hopefuly his attorney was an expensive one.

    February 28, 2012 at 1:38 pm |
    • DaEvin

      Call for the judges removal from bench>>>>>http ://florida-family.org/take_action_form. php?message=63. Forget what the site stands for if you want, but help remove this judge for abandoning an American citizens rights.

      February 28, 2012 at 1:40 pm |
    • Noxx

      Westboro Baptist Church...I mean what?

      February 28, 2012 at 1:41 pm |
    • W

      If the Westboro Babtist Church ever shows up to anything that affects my life, I'll end up in one of these cases myself.

      February 28, 2012 at 1:45 pm |
    • Horus

      W, the law is the law, and this is not "another country in which one is put to death for depicting Muhammad"....this is America. Yes, it's pathetic to go to such effort, and imo hurts the true message of non-believers, but it is not illegal. What the attacker did was illegal. Even the officer stated that the man admited to grabbing the guy. Is an officer's word not good enough for this judge?

      February 28, 2012 at 1:50 pm |
  8. reason

    There were witnesses as seen in the video and the attacker even admitted assaulting him. Martin, the judge, actually called the victim a dufus. Martin is biased towards religion and he should be ashamed of this abortion of justice.

    Atheists are the most pursecuted group in America.

    February 28, 2012 at 1:37 pm |
    • DaEvin

      Call for the judges removal from bench>>>>>http ://florida-family.org/take_action_form. php?message=63.

      February 28, 2012 at 1:38 pm |
    • W

      You cannot honestly believe that? Someone believing in God does not mean your a persecuted and no one is forcing you to go to Church. Try living your life without throwing parades and provoking these situations and maybe, just maybe, these types of things wont happen.

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

      Since when does anyone have the right to assault someone just for being provocative?

      February 28, 2012 at 1:45 pm |
  9. Ivan

    wow, a scuffle between a muslim and an atheist. This will have the conservatives chasing their tails in circles while trying to decide who is more evil.

    February 28, 2012 at 1:35 pm |
    • Noxx

      I think they side WITH the Muslims against the atheists. Muslims and Christians are both agree that their imaginary friend is looking over them.

      February 28, 2012 at 1:39 pm |
    • Jake

      Haha, seriously.

      February 28, 2012 at 1:43 pm |
    • closet atheist

      Well played, Ivan... well played....

      February 28, 2012 at 4:47 pm |
  10. RELIGION IS WRONG

    ONE MORE GREAT EXAMPLE ...

    This is one more example on how religion is destroying the world. The nut jobs of all faiths are attempting to push onto you their rules and laws while attempting to hide their hate and violence in a fairy tale magical person who says its love.

    February 28, 2012 at 1:35 pm |
    • justageek

      "fairy tale magical person" – And you probably believe that using words like that will convince rather than instigate? There is no better way to push a religious person farther from your point than to mock them. Good luck with your Atheist crusade there.

      February 28, 2012 at 1:41 pm |
    • Lati

      Laws like thou shalt not kill or steal???

      February 28, 2012 at 1:57 pm |
  11. svann

    Hang on a sec. The charge was harrassment not assault. Thats different. He harassed muslims and got harrassed back. No case.

    February 28, 2012 at 1:35 pm |
    • denver2

      Public speech is not harassment. Why is this hard to understand?

      February 28, 2012 at 1:36 pm |
    • svann

      To me verbal harrassment is harrassment.
      from dictionary:
      to trouble, torment, or confuse by continual persistent attacks, questions, etc

      February 28, 2012 at 1:48 pm |
  12. GodPot

    "I think our forefathers intended that we use the First Amendment so that we can speak our mind, not to p i s s off other people and other cultures, which is what you did."

    The ruling in this case is giving precedence to blasphemy law, plain and simple. You cannot have it both ways, either we are allowed to say whatever we want, blaspehmy or not, or we accept the Sharia law view that you can and should be punished for what you say by man and not just by God. The only ones who should be punished in this country are any who take physical and violent action against those speaking their minds.

    February 28, 2012 at 1:35 pm |
    • Al

      100% agree. So now I can't call you deluded if you tell me that "god" is speaking to you and telling you to kill your son or that you just gave your life savings to the television pastor? Religion should not be protected from criticism and antagonists should not be harmed for criticizing. By this judge's logic, I should be out knocking down all church signs that call me a sinner for not believing while I throw rocks at pastors on Sunday who will tell their congregations how evil we atheists are.

      February 28, 2012 at 1:47 pm |
    • Brian

      Agreed. But there is always a limit to free speech (yelling fire, etc). I disagree with the ruling regardless of the fact that the costume was antagonistic. I think that if there wasn't enough evidence to substantiate an assault, then OK. But, what is there was, say, a video? Does this muslim get off because he was offended? Not in this country. If someone assaults someone, the attacker can expect to be repelled with enough force to insure the attackee's safety, including lethal force. Violence comes from all types of folks, religious or not. Muslims, however, are at the top of the list currently in my opinion, accurate or not, so they should accept as they expect us to accept / double standards are obvious and suggest dishonesty.

      February 28, 2012 at 1:48 pm |
  13. Joshua Ludd

    "You have that right, but you're way outside your bounds of First Amendment rights,"

    That phrase says it all, doesn't it? You have that right... but you don't have that right. Also, hard to believe that no one testified as an eye witness.

    February 28, 2012 at 1:35 pm |
    • WhatWhatWhat?

      It's actually very typical "religion speak" to make something sound right, even though it isn't. In some cultures it's called lying, but with religion, it's OK!

      February 28, 2012 at 1:38 pm |
    • Doc Vestibule

      It's kind of like "Thou Shalt Not Kill" – unless God tells you to.

      February 28, 2012 at 1:47 pm |
  14. Mike

    Free speech cannot incite. It can't cause another person to react violently or illegally. If it does, the person exercising their right to free speech can be prosecuted for it. You cannot exercise free speech against a person if you are on their property. That's libel, defamation of character, etc. Anything "free" also comes with consequences when exercised in an improper manner. Our problem in this country is we have 300+ million people all exercising their "rights" and "freedoms" in someone elses face. Remember, your "rights" extend only as far as you can reach. After that, you are in someones space other than your own, and you need to remember that other person has rights as well. P.S. Feel "free" to exercise your "right" to disagree with me on this. I won't come after you, I promise.

    February 28, 2012 at 1:34 pm |
    • kaos

      wow Mike, I don't even know where to start.. Freedom of speech for black Americans to march and protest during the 60's, didn't that "incite" some rednecks? Still was freedom of speech. You can't have freedom of speech on someone else's property? OMG, that's just stupid in and of itself.. Rights only as far as you can reach? It's my inalienable right to life, liberty and the pursuit of happiness. As long as I don't injure someone, not verbally, I retain all my rights.. You are an idiot..

      February 28, 2012 at 1:45 pm |
    • BRC

      @Mike,
      Couple problems there, let's start with your interpretation of the law. Free speech does not cover speech that is INTENDED to incite. If I hold a rally claiming that Twilight(c) is horrible literature, and a group of people go off and kill the author, I'm not at fault, I'm not going to jail, and I didn't practice inciting speech. I exercised my First Ammendment rights, and someone else did something stupid. NOW, if I held a rally, said that Twilight(c) was terrible literature, and that we should form together and punish the author her crimes against actualy vampire characters, THEN someone goes out and kills her; I'm probably in trouble. That is the difference.

      Also, you're horribly missusing the reach concept. WORDS don't have a reach. Sound moves out in all directions, to be freely observed or ignored. The principle of the REACH, is taht I cannot PHYSICALLY interfere with other citizens in their pursuite and enjoyment of Consttutionally protected freedoms. They are very different issues. The guy in the costume was an insensitive twit who was well within his rights. The guy who tried to forcibley remove his costume, who used his REACH to try adn silence someoe elses First Ammendmnet protected expression, was not.

      February 28, 2012 at 1:47 pm |
    • Glenn

      Damn Mike you are completely backwards on this one. If Perce's display had caused someone to attack a Muslim then maybe it could've been called hate speech. But Perce HIMSELF was attacked. It is clear that the Muslim was the more hateful one. He should be charged with a hate crime.

      February 28, 2012 at 1:52 pm |
  15. OrionStyles

    Satire is a protected form of free speech.

    February 28, 2012 at 1:34 pm |
  16. answmerman28

    The judge is was out of bounds on this one and has no right to be on the bench in a U.S court if he's going to use mindless religion as an excuse not to do his job and uphold U.S LAW. The atheist should no doubt apeal to a higher court asap .. and should call a major news agency while he's at it.

    February 28, 2012 at 1:33 pm |
    • Enough

      "and should call a major news agency while he's at it."

      Huh?

      February 28, 2012 at 1:38 pm |
  17. echo40

    I am lost in words. I don't know what to say. I am as liberal as the next guy, this soon-to-be ex-judge should be send back to high school civil class, and learn what is mean to be an American.

    February 28, 2012 at 1:33 pm |
  18. food

    @Satros He has every right to mock, dress, yell what ever he wants. You do not have the right to physically cause harm to another persons body.

    February 28, 2012 at 1:30 pm |
  19. rhobere

    I don't agree at all with what this dude did, but I can't deny his right to do it. But this whole story is completely and utterly sensationalist. If there was no evidence pointing one way or another, then there was no case. That's how the law works. The alleged story leading up to it is irrelevant at that point. the judge's closing argument is irrelevant (so long as he didn't let his opinion influence his decision).

    as an atheist, I think that this guy should have had some respect for Islamic beliefs. What way to further tarnish the reputation of atheists than to intentionally mock and provoke the religious beliefs that they oppose. The vast majority of us follow the "live and let live" motto. What he did vehemently opposes that and does nothing to advance our prosperity as a group.

    February 28, 2012 at 1:30 pm |
    • FatSean

      Religious beliefs are chosen. If you pick a belief that is so easily pointed out as nonsense, why not change what you believe?

      Sorry religious people, you guys have a long LONG history of oppressing, abusing and killing those who don't believe in your brand of fantasy. You don't have the right to not be offended. Every time some religious person says "god bless" that is basically "mocking" my "belief" that the claims of the religious are unsupported by evidence. But I don't cry about that!

      February 28, 2012 at 1:44 pm |
  20. cutedog2

    Martin was right, and no I am not a Muslim nor a Muslim sympathizer. For too long Americans have said/displayed horrible things and waved their free speech banner, yet when the tables are turned and people speak or act out against them, it becomes a hate crime. Good to know there is a judge out there that does not let common sense of the be over-ridden by PC.

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

      WORDS against something = legal. PHYSICAL ACTIONS against something = generally illegal. They are not equivalent, and one does not warrant the other. If the allegations are true (and from other seemingly better informed news sources it seems they are), the muslim man is in the wrong.

      February 28, 2012 at 1:34 pm |
    • Horus

      How do you explain the Westboro rulings then? That's as hateful and antagonistic as possible.

      February 28, 2012 at 1:36 pm |
    • Noxx

      Horus, they're Christians. It's allowed.

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

      You're pulling the political correctness card, really? There's a world of legal difference between saying something that angers someone and half-strangling them. And for good reason.

      February 28, 2012 at 1:47 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.