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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. Hypocrites

    So, all of these people believe that people shouldn't be allowed to say insulting things, because free speech doesn't protect it? Tell me then, why are we allowed to insult our President, and even give death threats to him? Let's face it, the judge is in the wrong here, the Muslim had NO RIGHT to assault the atheist, no matter what he said.

    February 28, 2012 at 4:34 pm |
    • Phineas

      You are free to criticize the President of the United States–and indeed, the U.S. government as a whole–as much as you like. Threatening the President (or anyone else) is a different matter altogether, and unlawful.

      February 28, 2012 at 4:38 pm |
    • sarah

      The question is really DID the atheist get assaulted? He and his friends set out to provoke people and catch something on film. But the attack is not on film and using those same people as witnesses? That doesn't raise some doubts? There really is a lack of evidence. Especially as the atheist continued on his merry way in the parade.

      February 28, 2012 at 4:42 pm |
  2. coloradom

    The judge was correct in dismissing the case IF there really wasn't enough evidence. What the atheist did might be tasteless, however, free speech needs to be protected. The lecture was unnecessary and the judge went way outside of his power/responsibilities.

    February 28, 2012 at 4:34 pm |
    • sarah

      I don't know. If the atheist is really setting out to catch someone attacking him on film? Not illegal but definitely risky. What if he had caused a riot and a lot of people got hurt? What if he does the next time he does this? You wouldn't say anything?

      February 28, 2012 at 4:45 pm |
  3. Jill

    Westboro Baptist is protected by the First Amendment, and their behavior is really offensive to some. Zombie Mohammed should be protected too, no matter how offensive his display is.

    February 28, 2012 at 4:34 pm |
    • Siobhan Elizabeth

      Westboro Baptist is not a real church, they are hiding behind the appearance of an organized church, but there are no members besides Fred Phelps family, they do not have a place of worship, their sole purpose is to protest at funerals, of gay people and members of the military, which is not protected by the first amendment, it is harassment of people on the worst day of their lives, when they have to bury a loved one. They exist to generate hate against gay Americans, and that is not protected by the first amendment, but they get away with it cause they pretend to be a church. Oh, and they avoid paying any taxes with this designation, so the American public is helping to fund their activities whether they agree or not.

      February 28, 2012 at 4:40 pm |
  4. Monica

    The judge was just advising this man to common sense. You antagonize someone there is reprecussions. The judge said it was one mans word against another that he hit him, and choked him~ not that because he was muslim this should happen. Someone has got to take a stand somewhere. The guy was acting like a 12 year old adolescent child. Why mock someone else unless you want to stir up trouble.

    February 28, 2012 at 4:33 pm |
  5. Jason S

    They were both offensive. The Athiest for being and idiot and what a surprise a violent Muslim.

    February 28, 2012 at 4:33 pm |
  6. CuriousAboutStuff

    another similar article | http://www.jihadwatch.org/2011/08/toronto-islamic-supremacist-punches-non-muslim-in-the-face-no-charges-filed.html

    February 28, 2012 at 4:33 pm |
  7. cj

    Freedom of speech as long as you are not a white atheist I guess.

    February 28, 2012 at 4:33 pm |
  8. BloodofNords

    That Atheist shares Dawkin's mentality.

    February 28, 2012 at 4:32 pm |
  9. Indigo

    Athiest – "Dude stop shoving your religion down my throat!!"
    Everyone else – "Ok just don't shove your lack of religion down mine."
    Athiest – "I can say whatever I want!!! Freedom of speech is my right!!!!!"

    You have rights, but you also have the responsibility to respect other people's rights by not infringing on their freedom of religion. If you abuse your rights, you will lose them.

    February 28, 2012 at 4:32 pm |
    • Just Asking

      Please explain how dressing up in a halloween costume infringes on someone's religion.

      February 28, 2012 at 4:43 pm |
    • Indigo

      If someone put on a costume of a giant penis and walked in a fourth of july parade, would you consider this offensive? It was offensive.

      February 28, 2012 at 4:46 pm |
  10. everettreb

    I am a Christian and never thought I'd find my self defending an Atheist but this is wrong.
    This guys first amendment right just got shot down by this judge. You can bet that this one is just the start of the removal of the first amendment.

    February 28, 2012 at 4:31 pm |
    • sarah

      Nah. It was word against word. The witnesses and the atheist all set out to provoke people. But there is nothing on film that supports an actual attack.

      February 28, 2012 at 4:54 pm |
  11. Corey

    This has nothing to do with religion and everything to do with the fact that there was not enough evidence to find the assailant guilty. The Judge acted properly in dismissing it if it could not be proven that the accused committed the crime. Everything else doesn't really matter as far as the law is concerned.

    February 28, 2012 at 4:29 pm |
    • Evskie

      THere was video evidence and the arresting officers testomony that was thrown out of trial.

      February 28, 2012 at 4:32 pm |
    • Phineas

      Except for a sitting judge assailing an alleged victim's right to free expression in open court.

      February 28, 2012 at 4:32 pm |
    • Monica

      there was video evidence of the guy acting like an idiot but NO evidence of the actual offense...>Read the article and what is says not what you want it to say

      February 28, 2012 at 4:37 pm |
    • Malkntnt

      Not enough evidence? Video and admission of guilt is not enough? The Muslim admitted that he used a "Sharia defense – what he claimed was his obligation to strike out against any insult against the prophet Mohammed." – umm... so this guy can just go around and "strike" those that insult the prophet Mohammed, that means he could walk into a church and punch any Christian. Their god is the only true god and all others are false, therefore the prophet Mohammed is false. No wonder they blow themselves up (a form of striking). This Judge should be disbarred and slapped. If I was that guy, I would take this up the chain.

      February 28, 2012 at 4:46 pm |
    • sarah

      The video doesn't show an attack. Just a guy saying he's being attacked and then continuing on. And when you consider the source, people setting out hoping to provoke people, it is highly questionable. I doubt any judge will rule differently.

      February 28, 2012 at 4:59 pm |
  12. momoya

    Call the judge's office now:

    717-240-7864 << live operator

    717-766-4575 << leave message

    February 28, 2012 at 4:28 pm |
    • Siobhan Elizabeth

      If I call the judge, it will be to tell him "Right On" and I am agnostic. This guy mocking Islam, and really just making fun of religion in general, was wrong, and so out of line as to be almost unbelievable. I may be a non-believer now, but I was raised Catholic, a religious minority in the US, and I know what it's like to be part of a misunderstood religion, a religion that even now, people think is weird, with the mystical aspects of Catholicism, the fact that we have a Pope who is the leader of not just the religion, but an independent state, the Vatican. Catholicism is largely misunderstood, so I feel for Muslims who would be quickly denied their right to freedom of religion, and who are so often mocked, insulted, assaulted, etc. Freedom of Religion protects atheists too, cause it provides us the right not to believe in any specific organized religion.

      February 28, 2012 at 4:35 pm |
  13. Godlessmom

    So with this logic, I can go beat the crap out of a West Borough Baptist protester at a funeral, because they offend me.. Is that what we are saying here?

    February 28, 2012 at 4:26 pm |
    • Indigo

      This person was acquitted because of lack of evidence, not because of the mans religious views.

      "Typical Athiest Logic"

      February 28, 2012 at 4:31 pm |
    • Hrh Mom

      I think thats exactly what this mean. so tired of certain folks getting special priviledges just becasue they are nut jobs...

      February 28, 2012 at 4:44 pm |
  14. Evskie

    Wow, im really on the fence on this one. Being an athesist myself i would still have been offended by these 2 idiots. To me, being athesist means being tollerant also. You cant gain respect for your belief by mocking others. However, physical altercation is a physical altercation. The judge should have charged the muslim guy then ruled a light sentence since he was provoked. This just makes me think of those nutjob Christians that protest at soldiers's funerals. To me, that is not freedom of speech, thats abuse of freedom of speech, which is the point the judge was trying make in this case. I think its important that a Judge consider the spirit of the law and not always rule to the letter of the law. However, i disagree with how he handled this. Its a shame people will continue to abuse a precious right.

    February 28, 2012 at 4:26 pm |
    • JOhn in Atlanta

      It's not "fighting words" unless it is a threat. The fact that someone is flaunting another's religion does not justify violence. The Judge is wrong. It is not an abuse of free speech just to express something somebody else disagrees with. As the Supreme Court once said – if that were the test then the right to expression would be limited by the most sensitive person hearing the speech. But this is not a first amendment case. When the Judge raised that point it was a red herring. This is a question of criminal assault. An assault is wrong whether it is against or by a muslim. They have equal rights but should also have equal responsibilities. That's what this country should stand for.

      February 28, 2012 at 4:48 pm |
  15. wilypagan

    Judge Martin ran unopposed in the last election for his spot on the bench. If there is a good, well trained lawyer, who is willing to uphold the US Consitution, I would certainly donate to his or her campaign! But since Martin's term is going to last for several more years, is there a process for impeachment in Pennsylvania? I guess under Judge Martin's brilliant legal analysis, if the gun-toting, bible-beatin' Christians of his county find his ruling "offensive" they can just bring their pitchforks and remove him from the bench, and then in any subsequent prosecution all evidence will be thrown out and Judge Martin can be called a "doofus" for making a ruling that offends them. Get on it, folks!

    February 28, 2012 at 4:26 pm |
  16. Cavan

    The imbecile in the Mohammed costume got exactly what he deserved, both from his Muslim attacker and from the judge.

    February 28, 2012 at 4:26 pm |
  17. Attila, The Hun

    Another judge with his head up his ------– fill in the blank.

    February 28, 2012 at 4:25 pm |
  18. Attila, The Hun

    Another judge with his head up his ___________ fill in the blank.

    February 28, 2012 at 4:24 pm |
  19. Need to protest

    I would do a protest at the judges home with as many people as possible dressed up as Mohammad. As soon as he complains then ask about the first amendment.

    February 28, 2012 at 4:24 pm |
  20. Dave Allan

    Hearing the Judge state there was not enough evidence to support an assault or harrassment is all I need. On the Atheist, both his and his friends costume was tasteless. If you were to dress like the one in the dead Pope costume in Rome, you would have been beaten. It goes both ways with a religion being offended. The freedom of Speech card is played too many times. The Atheist should respect of everyones freedom of religion, not force his belief's on anyone else.

    February 28, 2012 at 4:21 pm |
    • Indigo

      Athiest – "Dude stop shoving your religion down my throat!!"
      Everyone else – "Ok just don't shove your lack of religion down mine."
      Athiest – "I can say whatever I want!!! Freedom of speech is my right!!!!!"

      You have rights, but you also have the responsibility to respect other people's rights by not infringing on their freedom of religion. If you abuse your rights, you will lose them.

      February 28, 2012 at 4:29 pm |
    • David

      Point is ytour not in Rhome your in Amerca where we have the right to freedom of speach. Where if you do get flogged by a mob the courts are supposed to penalize those who assaulted you. In this case the judge basicaly validated the sharia mentality that it is ok to envoke violence against anyone who does not agree with your "proffet"/thief.

      February 28, 2012 at 4:33 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.