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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."

Watch The Situation Room with Wolf Blitzer weekdays at 4pm to 6pm ET and Saturdays at 6pm ET. For the latest from The Situation Room click here.

- CNN Belief Blog

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

soundoff (2,453 Responses)
  1. momoya

    Unless you think assault is a reasonable response to speech, call and voice your opinion, now!

    Call the judge's office now:

    717-240-7864 << live operator

    717-766-4575 << leave message

    February 28, 2012 at 4:52 pm |
    • raz

      Problem is the assault has yet to be proven. There was not one witness in this parade that came forward.

      February 28, 2012 at 4:54 pm |
    • anonymous

      Ah shut up, the case was dismissed because of lack of evidence, not because the judge encourages violence.

      February 28, 2012 at 4:55 pm |
    • naeco

      The judge had absolutely no business making the lecture he did. If the case was dismissed on lack of evidence, that's where it should have stopped.

      February 28, 2012 at 4:57 pm |
    • J.W

      Well the issue at hand is what he said more than that of his decision on the case.

      February 28, 2012 at 4:57 pm |
    • anonymous

      naeco and j.w. obviously have never been in a court room... Judges give their personal opinions all of the time, and you know what? He was right. Those guys were being morons and were trying to incite anger.

      February 28, 2012 at 5:00 pm |
    • tl123

      The judge made the exact speech that should have been made. I applaud the judge.

      "Do onto others as you would have them do onto you!!"

      February 28, 2012 at 5:02 pm |
  2. Todd

    The First Amendment does not protect the right of an individual to express himself to the degree of uttering inciting violence. Also, provocation can be a defense to a charge of assault and battery. I don't know the details of this case specifically enough to say that the judge made the right call, but I can say that it sounds correct. This individual went out of his way purposefully to offend the religious beliefs of others. While I don't prescribe to the theory that you have no right to "offend" someone, I can say that the First Amendment protections of doing so are thinner. Besides, the judge didn't say the "victim" couldn't express himself. He merely said that the athiest's choice of expression may have justified the response. Volenti non fit injuria.

    February 28, 2012 at 4:51 pm |
    • naeco

      Gottcha. Time to beat the holy living S_ _ t out of the Wesboro Baptist Church people. I would gladly crack some of their heads if they protest at a funeral I'm attending. They're provoking me, eh?

      You honestly don't see a problem with this?

      February 28, 2012 at 4:56 pm |
    • Dee

      except what he was saying was not "incitement to imminent lawless action" nor was it even "fighting words" expressed for the purpose of inciting hatred or violence. It's called satire. The judge needs to go back to law school.

      February 28, 2012 at 4:59 pm |
  3. vman2003

    I don't think 1st amendment is an issue here. The 1st amendment is directed at the government – "congress shall make no law respecting an establishment of religion..." etc. On my private property however, I can have any rules I want – and if I don't like something I can ask you to leave my property. With that said – if this guy physically attacked the other one simply because he said something insulting then it's a simple case of physical assault and it should have been tried like that. This judge is a fool if he thinks that it's ok to physically attack someone because you don't like what they wear , say, or look like. That is completely idiotic.

    February 28, 2012 at 4:50 pm |
    • Erik

      Totally agree – I don't see the First Amendment issue here because there was no "government action" that's required to implicate a First Amendment violation. This is just assault and battery.

      February 28, 2012 at 4:52 pm |
    • Nancy

      The 1st amendment also includes free speech.

      February 28, 2012 at 4:52 pm |
    • tl123

      Judge Martin dismissed the case because there was a lack of evidence against the defendant.

      It was a matter of he said/he said. Which usually gets thrown out of court.

      February 28, 2012 at 4:58 pm |
  4. Ryan

    As an atheist I have to say what this guy did was just an a hole move and gives atheists like me a bad name. f this guy.

    February 28, 2012 at 4:48 pm |
    • tl123

      Ditto

      February 28, 2012 at 4:55 pm |
  5. raz

    Ok well this was a parade and he did not have one witness? I would have dismissed it also.

    February 28, 2012 at 4:47 pm |
  6. jlg

    When an atheist testifies in court, do they make him swear on a bible?

    February 28, 2012 at 4:47 pm |
    • DarkBronzePlant

      Yes, generally they do.

      February 28, 2012 at 4:49 pm |
    • DiversityDude

      No they do not. The statement is "Swear or Affirm" A person can 'affirm' and this is binding under the law.

      February 28, 2012 at 4:55 pm |
    • QS

      No, Marlon Brando set a precedent that now allows Atheists, or any other religious denomination that doesn't follow the bible specifically, to swear a different but equally valid "affirmation", which by law is the same as an oath sworn on the bible.

      February 28, 2012 at 4:55 pm |
    • Erik

      No, you don't have to swear on the bible. You can take an oath instead. However, some of the jury may be biased because the person won't swear on the bible so an atheist may want to swear on the bible anyhow to insure against bias.

      February 28, 2012 at 4:56 pm |
    • Ray

      No I do not.

      February 28, 2012 at 4:58 pm |
    • Steve

      No. Atheists agree to an affirmation of adherence to the laws as punishable by perjury. As long as they let one of the legal bunch know beforehand that they're atheist and don't agree that swearing on a bible is as binding as affirming they will not break the law.
      Personally, as an atheist, I'd prefer to swear on a bible, then lie my a$$ off.

      February 28, 2012 at 5:02 pm |
  7. Atheism is not healthy for children and other living things

    Prayer changes things .

    February 28, 2012 at 4:45 pm |
    • QS

      The only thing prayer changes is the temperature level of the air in the room!

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

      Not true, QS. Prayer also reduces someone's ability to actually do something useful.

      February 28, 2012 at 4:49 pm |
    • Padraig

      Catholicism sure ain't healthy for young boys.

      February 28, 2012 at 4:49 pm |
    • Padraig

      Christian Science isn't healthy for seriously ill children.

      February 28, 2012 at 4:50 pm |
    • Padraig

      Islam isn't healthy for young women with minds of their own. They are likely to be killed by their own families.

      February 28, 2012 at 4:51 pm |
    • sftommy

      Atheism has killed fewer humans than religion.

      February 28, 2012 at 4:53 pm |
    • mousedreams

      ... but holy wars are ...

      February 28, 2012 at 4:55 pm |
    • Cedar Rapids

      ...in the same way rain dances change the weather.

      February 28, 2012 at 4:57 pm |
    • Paradox

      Religion is the NUMBER ONE cause of human death and suffering. MANS greatest creation in the realm of mind and population control.

      February 28, 2012 at 5:05 pm |
  8. David

    No worries that musli will now feel empoowered to do the ssame except next time it will prollt be the wrong person and he will get his lumps. Good job judge.

    February 28, 2012 at 4:45 pm |
  9. marc

    This is another example of sharia creeping into the U.S. legal system. Although the costume was offensive, the muslim guy have no right to physically attack the atheist. There was another atheist wearing a costume depecting the pope but nobody assaulted him. Judging from the accent of the attacker, he's clearly an immigrant from another country and he should be deported.

    February 28, 2012 at 4:44 pm |
  10. John P

    I can see the Judge's point for the atheist's actions was like a person yelling fire in a crowed movie theater when there actually isn't no fire. The atheist should had realized that Muslim's are sensitive and stupid when it comes to their prophet Mohammed. They don't know how behave civilized and take actions in a non-violent way, it's just in their DNA. I can say that because Muslims don't believe the Holocaust ever happened. They really mean it when they say convert to Islam or die!!!

    February 28, 2012 at 4:44 pm |
    • David

      Yeah it's exactly like that. Did you also say apples is to fruit as nuts are to cars in school..I:m betting ya did. Come on fess up. we all know you did.

      February 28, 2012 at 4:48 pm |
    • Phineas

      Ah. Another grad of Oral Roberts Law School. Nice job, John P !

      February 28, 2012 at 4:51 pm |
  11. Arnold

    TO modify an old phrase – verbal fences create good neighbors. Whatever one person's belief about something, the key question is how they are as a person.

    February 28, 2012 at 4:44 pm |
  12. Dragon68

    I agree with the Judge. The first ammendment does not protect a person, when the speech is of such a nature that any reasonable person would expect a violent reaction from others. This is tantamount to yelling "Fire" in a crowded movie theater, or claiming to have a weapon in an airport security area. Every right comes with the responsibility to use it properly. You also have the right to own firearms. however, if you use them in such a way that threatens others safety and well being, that right is abbrogated. While we see the Muslim man's reaction as extreme, it can reasonably be shown, based on what we know of that religion, that this was a likely outcome.

    Mr Perce i more than a simple Athiest. He is an Evangelical Athiest. This is not about his right to reject any belief in God. It is about his determination to attack everyone else's right to practice their faith, because in his mind, he obviously knows better. The right to practice a faith, or lack of faith, extends only so far as it does not infringe on the right of another to practice their faith.

    February 28, 2012 at 4:41 pm |
    • Nonimus

      "because in his mind, he obviously knows better..."
      ...but you know better, don't you?

      "The right to practice a faith, or lack of faith, extends only so far as it does not infringe on the right of another to practice their faith."
      The Atheist was not infringing on anyone's right to practice their religion.

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

      Well, as a lawyer, I can tell you you are flat out wrong as to what the First Amendment protects. And this is not like yelling "Fire" in a theater.

      February 28, 2012 at 4:53 pm |
    • David

      Cause we live in a muslim dominated society? No we dont so why should someone excercising their free speach rights in AMERICA think they would get assaulted by a muslim? We do have law here that says if you touch or imflict bodily harm on another individual w/o it being in self defence that you wold be prosecuted....oh wait guess you won't?

      February 28, 2012 at 4:53 pm |
    • DiversityDude

      Sorry, you are completely wrong in your 'interpretation' of the first amendment. What the atheist guy did is specifically protected speech. The Muslim person should have been charged with assault. You don't have to agree with what a person says or stands for, but this is not a Muslim country. We are a society of law – and Western law at that. if you want to live here, you certainly are obliged to respect our law.

      February 28, 2012 at 5:00 pm |
  13. John

    You people are missing the point. THERE WERE NO WITNESSES. Judge stated it was one mans word against another man's. You can't fix stupid people. An atheist dressing up as Mohammed, I wonder what type of reception he would have gotten dressing up and mocking Jesus.

    February 28, 2012 at 4:39 pm |
    • anonymous

      Yeah It's pretty funny how everyone on here forgot about that little 'guilty beyond a reasonable doubt' principle of our justice system. Idiots.

      February 28, 2012 at 4:50 pm |
    • Steve

      Perhaps most are failing to distinguish between two aspects: The judge ruled there was not enough evidence of an assault (which is the outcome of the vast majority of 'he said/no HE said!' cases) versus the odd lecture on limiting the plaintiff's speech so as not to offend others.
      I don't buy the catch-all "I served to protect your right" line the judge follows. That has no bearing on his ruling nor on his post-ruling lecture. He should have simply rendered his judgement and moved on. Or, if he felt morally obligated to "help" the plaintiff in future dealings, he could have said, "You have the right of free speech. Use it wisely. If you are assaulted while you are engaged in free speech, make sure you gather good evidence and I will side with you."

      February 28, 2012 at 5:12 pm |
  14. Michael

    Free speech has limits:
    You can't yell fire in a crowded theater.
    Organized protests can be required to get a permit to use a park.

    February 28, 2012 at 4:39 pm |
  15. Paradox

    What BS. So now when I see a muslim burning a US Flag, I am allowed to attack him and he shall be scolded for offending me?

    February 28, 2012 at 4:39 pm |
    • Absolutely

      And why only Muslims? I fought and died for that flag, well not really.

      February 28, 2012 at 4:42 pm |
    • James

      I should be allowed to assault your for upsetting my sensibilities on READING COMPREHENSION.

      February 28, 2012 at 5:00 pm |
  16. Falconi

    Agreed. I tend to believe that the judge was truthful and dismissed the case based on it's lack of evidence against the accused. Express your opinions, fine, but don't be surprised when you get beaten when you express those opinions in a manner that is purposefully disrespectful and intentionally hurtful.

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

      I don't think anyone should expect to be beaten for expressing anything. The point of having a right to freedom of speech is the ability to express your opinion, however repugnant, without being assaulted or oppressed.

      February 28, 2012 at 4:39 pm |
    • glyder

      i can't believe YOU really believe the judge.

      February 28, 2012 at 4:40 pm |
    • momoya

      So, for you, ASSAULT is an acceptable response to SPEECH?!? Weird.

      February 28, 2012 at 4:41 pm |
    • Billy Offspring

      The only justifiable use of violence is in self defense, all other reasons can be considered criminal and unjustifiable by the law. Would the judge feel the same way if someone called a man's wife ugly?

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

      Spoken like a true Iranian loyalist.

      February 28, 2012 at 4:47 pm |
    • Falconi

      WUT – I'm not advocting violence. The point is that when you open your mouth, you're responsible for what comes out. I don't agree with the man being attacked.

      glyder – Between a sworn judge, an angry athiets and and angy muslim, I'll bet on the judge.

      Billy Offspring – Agreed. But if you call someones wife something bad, be prepared to take responsibility for saying it.
      momoya – No, it's not acceptable.

      February 28, 2012 at 4:49 pm |
    • Koolgrl97

      Then he should have ruled that way and shut his mouth. The fact he felt he had to go on and lecture the victim is an abuse of his office. What this judge said is that religion – any religion – trumps those who do not believe in religion. The judge states "you have that right" but then goes on to say the victim is outside the bounds of the First Amendment. That's illogical. If the judge recognizes the victim had the right to speak then the victim is per se within the bounds of the First Amendment. Yelling "Fire" in a crowded theater is NOT within the bounds of the First Amendment so it is NOT protected speech. There is a difference. Also, the judge goes on to say "I think our forefathers intended to use the First Amendment......" The First Amendment is clear – freedom of speech SHALL NOT be abridged. There is no "I think" what they meant is this...... Our forefathers were clear in their meaning. The judge was wrong to make the comments in the first place and wrong about what he said as well.

      February 28, 2012 at 4:53 pm |
    • Falconi

      Koolgrl97 – The lecture probably was unnecessary, I won't argue that, but then by your own argument, isn't the freedom of speech also extended to the Judge? If he had made his decision based upon his religious beliefs (Or those of another) rather than the merits of the case then he would be in the wrong, absolutely.

      February 28, 2012 at 4:57 pm |
  17. WUT

    This sounds more like an episode of Judge Judy. I don't think the judge did anything wrong if there really wasn't enough evidence to make a case. Nor did the alleged assault victim do something outside of his right to freedom of speech. I don't think this is a landmark case, just the convening of an insensitive protester, a violent passerby, and a know-it-all judge... When morons collide.

    February 28, 2012 at 4:36 pm |
  18. A Voice of Reason

    it is my sincere wish that someday, ignorance and intolerance will be discussed as historical problems that once existed in The United States. Unfortunately, it is all too unlikely that I will get my wish. The American Civil Liberties Union is an organization whose sole purpose is to support The Bill of Rights. Unfortunately, for some of the more intolerant of our citizens this has somehow come to mean that if they disagree with the result of a legal action presented by the ACLU then it is The ACLU that hates The United States. In fact, it is all too clear that these citizens are as unprepared and as unaccepting of the responsibilities of citizenship as the individual in this case. Jingoism and blind "patriotism" (patriotism is enclosed in quotations because this nation was founded on the principle that dissenting opinions can and must coexist for the benefit of all. Agreement with the masses is not a litmus test of any sort.) are not the hallmarks of a good citizen.

    A little tidbit just in case someone should feel that an Ad Hominem Attack is waranted: I am a Veteran of the United States Armed Forces and I WILL defend this country to the death. However freedom is not exercised by arguments from ignorance.

    February 28, 2012 at 4:36 pm |
    • David

      Dude get real. ACLU is a group leftist extremist. Every ONCE in BLUE moon theey fight the god fight mostly they are jsut here to help degrade the moralaity of man under the guise of Civil rights. The founders of this counrty would have tared feathered and beaten these morons.

      February 28, 2012 at 4:42 pm |
    • DarkBronzePlant

      David,

      Why the hell would the founders of this country tar and feather a group that exists to uphold the civil liberties that the founders established? I think they'd be more likely to tar and feather someone who desecrates the English language like you do.

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

      Yours is a voice of stupidity, not reason.

      But what can we expect from a Mormon?!

      February 28, 2012 at 4:51 pm |
  19. No need to believe

    Wow nothing but hate and violence. Name one good thing religion has done for society. In all of its history name one thing that it has done that was not selfish and to better itself to gain more followers or acquire land for more churches? The concept of America being founded on the basis of god may be somewhat true, but times change. Look at the church of scientology... It was thought up literally overnight, but yet people eat it up. What exactly do you think Christianity is, or Muslim is? Open your eyes for real people.

    February 28, 2012 at 4:36 pm |
    • jlg

      How about providing the basic framework upon which ALL civilizations are based upon? Even as an atheist, I can still appreciate the contribution of religion to society. Religion has been a driving force on this planet for thousands of years as we know it and most-likely 10s of thousands of years in more primitive forms – and imagine that humanity has progressed...who would have thunk it...

      February 28, 2012 at 4:42 pm |
    • FunkyMonkey

      Well, the Catholic Church preserved many of the Classical and Helenistic philosophical writings that would have been destroyed in the Germanic invasions. Good luck kick-starting the Enlightenment without those ancient foundational texts.

      February 28, 2012 at 4:53 pm |
    • Dr. Peabody

      "Name one good thing religion has done for society." Hospitals. I'd give them a pass based on that, but there's music and art. The Sistine Chapel ceiling. Cathedrals that soar higher than anything ever did. A philosophy that the individual matters more than the mass, which we all believe no matter what else.

      February 28, 2012 at 4:58 pm |
    • Albert Alligator

      "who would have thunk it..."

      Pogo? Is that you?

      February 28, 2012 at 4:59 pm |
    • No need to believe

      Driving force? Hospitals, true, but driving force is belief as a whole. What happened to cuprinicaus when he revealed his heliocentric model in opposed to geo-centric. More recently look at what is now capping growth on stem cell research. It only works if it fits in the bubble. Things would work a lot smoother with out the pressures of religion question every advancement because it may not coincide with belief. Look at Darwin's theory of evolution. Still fought to this day not to be taught causeitdoesnot fit. Don't make this like thy drove this society based on discovering technilogical advancements, because they didn't. Remember everybody that spoke out on the movements of the catholic church were a witch. And today instead of hereicy it's atheists. Don't be fools, even ancient beliefs had multiple gods for many everyday explanations. God doesn't fit in a society that can scientifically explain common knowledge events.

      February 28, 2012 at 5:13 pm |
    • No need to believe

      The idea of art and philosophy are true, but the idea to think outside of religion belief was difficult in the erra of the rennossance art movements. The point here is society advance, even beyond the need for religion. We see it now with atheist movement. We are on the crest people. This judge is just one of many issues our society has with idea that religion needs to be cradled. We cradle Muslims and evangecals the most out of a radicalism. Why are we not Syria? Because they are crazy and nobody wants to come out and just say it.

      February 28, 2012 at 5:21 pm |
  20. JJ

    Welcome to the world of the Fighting Words Doctrine, where the SC says that if you run at the mouth and insult people like, you shouldnt conplain when you get your face bashed in.

    February 28, 2012 at 4:34 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.