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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. GodsPeople

    Judge Martin broke the law. He should be disbarred, and beaten to within an inch of his life. His ruling offended me, so therefore, according to his ruling, I have every legal right to do so. Can we get all of the non-whites and anti-whites (like muzzies) out of our country now?

    February 28, 2012 at 2:48 pm |
    • CalmDog

      You know, you remind me of people after a football game yelling "WE WON". WE didn't do sh!t. WE sat on our cans and drank beer and WATCHED. Those guys on the field won.
      Now you talk about people getting out of OUR country. How is it yours? What the hell did you do to own the country. Before it was yours, it was someone else's. It ain't yours.

      February 28, 2012 at 2:54 pm |
    • saopaco

      There is a peti tion on change. org to get Mark Martin Impeached.
      Search for "Help stop Sharia law from being used in US Courts" without the "" to get to it. I can't get the link to post here. Thanks!

      February 28, 2012 at 3:19 pm |
  2. NCT

    I'm suprised the Muslim didn't try to kill him. That's what his Sharia law requires. It is a false religion in the first place. And as for the athiest, unless he has 100% of all knowlege in the entire universe, he cannot defend his position that there is no God, even though the universe declares it to be the case.

    On the other note, the athiest man was attacked and should have his rights to freedom in this country.

    February 28, 2012 at 2:47 pm |
  3. Bob

    This verdict is terrible. It sets precedent that violence is ok if you claim religious freedom. That's not what freedom of religion means.

    February 28, 2012 at 2:42 pm |
    • Nonimus

      I thought the judge said that the plaintiff didn't make his case... it was lack of evidence, officially, not because of religion.

      February 28, 2012 at 2:46 pm |
    • Bob

      So you're saying we shouldn't accept things as true because of lack evidence?

      February 28, 2012 at 3:03 pm |
    • Nonimus

      legally, yes. The plaintiff has the burden of proof in a court of law.
      Whether he was assaulted or not, I have no clue.

      February 28, 2012 at 3:18 pm |
    • richy rich

      Why is this national first page news. Strange. Religion is surely the opium of the masses

      February 28, 2012 at 3:20 pm |
  4. Russell

    I guess this means now PETA activists can legally start beating people who wear fur, right?

    If we ignore the rule of law and allow criminals to go free simply because the victim was insensitive, then where does it stop?

    If I throw some trash on the ground, does a Greenpeace activist get to crush my skull in with a tire iron?

    You don't have the right to be protected from insensitive people. Can the guy counter-sue for insulting the prophet? Sure, but that still doesn't mean the judge can dismiss this case, nor does it mean that the guy counter-suing should win his counter-suit.

    February 28, 2012 at 2:42 pm |
    • momoya

      Excellently stated. You might want to repost since the pages fill up so quickly making it easy for readers to miss it the first time.

      February 28, 2012 at 3:06 pm |
  5. yakman2

    FU Judge Mark Martin!!!!

    February 28, 2012 at 2:41 pm |
  6. saopaco

    Want to fight Sharia law? There is a peti tion on change. org to get Mark Martin Impeached.
    Search for "Help stop Sharia law from being used in US Courts" without the "" to get to it. I can't get the link to post here. Thanks!

    February 28, 2012 at 2:38 pm |
    • Bob

      I bet the judge is a right-wing troll using his court to 'prove' the point that the Court system is using sharia law. Notice that none of the parties involved are Christian?

      February 28, 2012 at 2:47 pm |
    • David McFarland

      The case was thrown out because there was not enough evidence. Didn't you read the article.

      February 28, 2012 at 2:47 pm |
    • Nonimus

      Why should I fight Sharia law, it has no inherent legal standing in this country.

      February 28, 2012 at 2:49 pm |
  7. Michael

    Yes the judge screwed up. And people who do stupid things like openly attacking other people's beliefs like that guy....well, sometimes you get what you deserve....sometimes there is a distinction between what's legal and what's smart.....

    Legal? Yes.
    Smart? Not even close.

    February 28, 2012 at 2:38 pm |
    • MarkinFL

      However, the courts are there to decide what is legal. No more, no less. This story is not about a guy being attacked, its about a judge that was way out of bounds.

      February 28, 2012 at 2:42 pm |
    • clearfog

      There is also a distinction between what is smart and what is not. I put your post in the latter category.

      February 28, 2012 at 2:42 pm |
    • Michael

      @clearfog – OK dude...whatever....if you don't like my post fine....but leaving dumb comments because you have nothing to really contribute on your own is just pathetic...so go turn off your computer and pray for a brain that can produce original thought and pray for your penis that's wayyy too small to grow past 2"....I know it must suck to get laughed at by everyone (including your mom), but dayum....go take care of that OK? 😉

      February 28, 2012 at 2:56 pm |
    • clearfog

      Michael, a fine and clever retort, what with penis and mum and all such deep and meaningful language. The intellectual equivalent of 'so's your mama.'

      February 28, 2012 at 3:00 pm |
  8. Learn to Fish

    I applaud the judge for using common sense and understanding the intent of free speech. I don't care if the guy with the sign was an atheist or evangelist, what he did was purely to provoke and insult. He attempted to abuse our laws merely to smite others. To bully and antagonize while hiding behind our freedoms. Reminds me of a church that picketed Matthew Shepard's funeral with signs reading "God Hates F@6s."

    Anyone who must study the laws, so they can take their actions beyond decency and yell, "you can't stop me, it's my right to do this," doesn't deserve the protection of those rights.

    February 28, 2012 at 2:37 pm |
    • reason

      What you wrote is highly offensive, so in other words you think someone should be able to punch you in the face.

      February 28, 2012 at 2:41 pm |
    • Nonimus

      And what right to you have to say those things?

      February 28, 2012 at 2:42 pm |
    • BRC

      @Learn to Fish,
      Anyone who is incappable of restraining themselves and allowing others to have their own expressions and beliefs regardless of how they contracst their own doesn't belong in a free society.

      Also, how can you possibly know his motives? Have you considered this one- he thought it was funny?

      February 28, 2012 at 2:43 pm |
    • clearfog

      Learn to Fish. How is it possible to catch things smarter than yourself?

      February 28, 2012 at 2:45 pm |
    • MarkinFL

      Sorry, you are way off on this one. He deserved the full protection of the law. Just as Klansmen and the Westboro dimwits are also protected. A social wrong does not legally excuse a criminal act, ever. I may cheer if I saw the Westboro group beat to a pulp, but on the other hand the police and courts are duty bound to prosecute the attack. THAT is one slippery slope that is truly scary. When the rule of law is ignored, our entire country is in danger.

      February 28, 2012 at 2:47 pm |
    • come on, sounds fishy

      if someone puts comic satire in a newspaper offending, Obama/Bush, does that give either president the right to throw that person in jail or assault them. If Nazi's/white supremasist hold a rally against people of color and various religions does that give anybody who is not part of that group to attack the Nazi's/white supremasists. Freedome of speech means hat you can express your opinion even if others do not agree. if you defend this judges actions it leaves room for people to assault anyone who does not hold their same views

      February 28, 2012 at 2:50 pm |
  9. vic

    There it is in black and white, folks. You do not have any right to say things that upset the Muslims, If you do say these things you are fair game. Good-bye first amendment.

    February 28, 2012 at 2:37 pm |
    • Nonimus

      Bah! Judges get things wrong all the time. That's why we have an appeals court systems. Go monger your fear, elsewhere.

      February 28, 2012 at 2:44 pm |
    • Q

      Hmm, I wonder what would have happened if he had worn a white sheet and carried a burning cross? Don't you imagine far less people would have sided with him?

      February 28, 2012 at 2:45 pm |
    • MarkinFL

      I support the rights of every sheet wearing id.iot to parade around and make fools of themselves. The 1st amendment is far more important than my personal sensibilities.

      February 28, 2012 at 2:49 pm |
    • Nonimus

      @Q,
      Not sure what you mean by "sided with him". I sided with the law on this one. If there was truly insufficient evidence then the judge was right.

      February 28, 2012 at 2:52 pm |
    • Nonimus

      @MarkinFL,
      Absolutely!

      February 28, 2012 at 2:53 pm |
  10. Context

    He was in a parade, that is free speech. I would have agreed with the Judge if he had worn the same costume to a mosque. If the parade organizers didn't have a problem with the costume, I don't see why he was allowed to be attacked. If you are that sensitive, don't go out in public where you might run into someone with a differing opinion. His friend wasn't attacked by rabid Catholics.

    February 28, 2012 at 2:37 pm |
  11. J

    So, the judge condones assault against a*holes? Good to know. I'm gonna go punch the entire cast of Jersey Shore, and request this guy to oversee the trial.

    February 28, 2012 at 2:36 pm |
  12. RG

    I guess this makes it ok to assault Westboro Baptist protesters?

    February 28, 2012 at 2:36 pm |
    • KLDGBB

      Good one!

      February 28, 2012 at 2:43 pm |
  13. reason

    Here is the video.

    [youtube=http://www.youtube.com/watch?v=kHXp0Kvn4PM&w=640&h=390]

    February 28, 2012 at 2:34 pm |
  14. Hitchens

    Now the Muslim should sue that loser for false arrest and financially cripple the atheist bas tard for life.

    February 28, 2012 at 2:34 pm |
    • Huh?!

      I believe the judge saw a religious person and an atheist and ruled for the religious person because not having any religion is worse than mugging someone in his mind. Apparently Hitchens and his ilk feel the same way. I'm sorry, a mugging is a mugging whether it's done to an atheist or the pope. Saying stupid things is a right in this country and needs to be defended. Why? Because when we restrict free speech as was done here where does it stop? When does it become OK to berat someone over a few stupid syllables? We know it isn't right when those syllables are about your sister or your sports team no matter how angry you get. But now we hear it's OK when the syllables are about someone's religion. VERY dangerous waters there, my friend. The Supreme Court drew the lines of when speech is free and when it isn't and now we have a judge trying to re-draw them. One last question, Hitchens. Where would you stand on this if the person who got attacked was a Baptist? Would it still serve him right?

      February 28, 2012 at 3:15 pm |
    • yellownumberfive

      Somebody doesn't know what false arrest actually is. Somebody is also a bigot.

      February 28, 2012 at 3:21 pm |
  15. KRussell

    Allow me to take an unpopular position here.
    What if a white man had the untypable 'N' word on a sign, and an afro-american had assaulted him. Still free speach? I think not.
    Not a religious thing, I know, but the same principle applies.

    February 28, 2012 at 2:34 pm |
    • Dan. M

      Not even close.

      Your analogy generalizes a group of people. Perce's display was of a dead, historical, religious figure.

      And yes, it would STILL be free speech, however offensive. That's the whole point of free speech – you are protected in saying what you want without the threat of physical violence. If people can be legally attacked for saying something offensive (and *anything* you say can and will offend *someone*), then there is NO free speech.

      You don't have free speech if everyone can only say what isn't offensive to anyone. The First Amendment protects a person right to say what might offend others, whether it is intended to offend or not.

      February 28, 2012 at 2:41 pm |
    • Evangeline

      Right on

      February 28, 2012 at 2:48 pm |
    • KRussell

      At some point you cross the line into Hate Speach.
      Not a first amendment right, and not protected.

      February 28, 2012 at 2:48 pm |
    • MarkinFL

      Absolutely its free speech. Go learn about the Consti.tution if you actually believe otherwise. Learn something about our nation.

      February 28, 2012 at 2:51 pm |
    • clearfog

      KRussel, you know as much about the first amendment as Judge Mark Martin. Hate speech is protected. Period.

      February 28, 2012 at 2:56 pm |
  16. Nonimus

    If it was truly word against word then the Judge's verdict, I think, was appropriate.
    The "dressing down" however was not, but that is immaterial to the case, I think, no matter how incorrect it was legally.

    February 28, 2012 at 2:33 pm |
    • clearfog

      1. Word against word is sufficient if believed.
      2. It was not word against word. The defendant admitted battery to a cop at the scene, but denied it later.
      3. The judge clearly used insufficient evidence as a pretext for his own personal feelings about atheists.

      February 28, 2012 at 2:50 pm |
    • questioner

      In the middle of a parade..there were no witnesses? or did the judge say that because he had a predetermined bias?

      February 28, 2012 at 2:57 pm |
  17. Horus

    With freedom comes responsibility; the responsibility to know when to walk away from something before responding physically. People get offended all the time. Does this now set precedent that anyone who is offended can assault the offender, and not be held accountable if there are no "witnesses"?

    February 28, 2012 at 2:33 pm |
    • Can I get a witness?

      If this happened during a parade, how was the plaintiff unable to produce one witness? What about the guy helping him hold the sign? I'd say that was because it did not quite happen as Ernie the Atheist may have relayed his story (and no one would corroborate his story). Not being able to produce a witness will almost always lead to your case being tossed. No evidence, no crime (in the Law's eyes).

      February 28, 2012 at 3:03 pm |
  18. Atheism is not healthy for children and other living things

    Prayer changes things .

    February 28, 2012 at 2:32 pm |
    • Horus

      tangible, repeatable, verifiable evidence?

      February 28, 2012 at 2:34 pm |
    • Flippy

      Go away troll!

      February 28, 2012 at 2:35 pm |
    • Mike

      Prayer: How to do absolutely nothing and still think you're helping.

      February 28, 2012 at 2:47 pm |
    • Primewonk

      Spam! Spam! Spam! Spam!
      Lovely spam! Wonderful spam!
      Spam spa-a-a-a-a-am spam spa-a-a-a-a-am spam.
      Lovely spam! Lovely spam! Lovely spam! Lovely spam!
      Spam spam spam spam!

      February 28, 2012 at 3:03 pm |
  19. cigarman

    This judge should be thrown off the bench immidiately and all Muslims kicked out of the United States. If the United States continues down the road of tolerating these killers, they will eventually run the United States.

    February 28, 2012 at 2:32 pm |
    • Nonimus

      ... and anyone who uses the "name" cigarman, should be kicked out too.

      February 28, 2012 at 2:35 pm |
  20. John

    Though I am a Catholic Christian, I would defend the atheist in this case. By what right judge martin can a muslim-immigrant choke someone and get away with it??? Oh, Sharia law. That's how. I was shot at more than once in Vietnam, almost became a prisoner on one day. I have defended the right as well for people to agree or disagree with me – but if someone tries to choke me I am gonna "turn my other cheek" on the way around to defending myself!!! And if this were in a parade context as the article states there had to be sufficient evidence numb-numb!! Our country is going to "hell" because of people like this judge.

    February 28, 2012 at 2:31 pm |
    • Bruce

      I am a Methodist Christian, so yes, I too think the right thing should be done. This being said, the judge explained it clearly. It was one person's word against another. No crime was proven to have been committed. Also, keep in mind that the right to free speech is not an absolute right. When your motivation (yeah i know the thought police) is to incite you have NOT exercised your right to political speech. When you libel, you have NOT exercised your right to political speech.

      February 28, 2012 at 2:43 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.