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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. Scott

    Seriously, the atheist was asking for violence. He knew how people would likely respond. If I go into a park in a black neighborhood with black face pain on and start yelling "Colored people are sub-human", or "Colored people should still be wearing collars", then I'd likely get my face busted if not killed. When you incite riot, it does not justify violence from others, but it should get me fined, put in jail or something. Free speech is not license to incite violence which is what he did for mocking Mohammed. In this case the atheist isn't protesting "God doesn't exist", but proclaiming "I'm an idiot poking highly volatile people who may shoot me for what I'm doing! Wahoo! This is fun!"

    February 28, 2012 at 5:11 pm |
    • Guest

      True enough. You can't feel sorry for any of the fools involved, but free speech is free speech.

      February 28, 2012 at 5:13 pm |
    • marsmotel

      Stupidity is not a crime. You have no idea what his intensions were.

      February 28, 2012 at 5:14 pm |
    • BobS

      Free speech is not free speech. I suggest you look up the 1942 Supreme Court case Chaplinsky v New Hampshire.

      February 28, 2012 at 5:21 pm |
    • me

      So you must side with the Westboro Baptist Church then too righ???

      February 28, 2012 at 5:22 pm |
    • Scott

      I'm not judging his intention specifically. Maybe I'm judging his intelligence. The issue is that free speech does not cover the right to incite violence which is what he was doing with his actions. I do not condone any violence that may have done to him, but I also do not condone his action and demeanor that any sane person would accept is inciting violence. You can't yell "fire" in a movie theater, because you may precipitate injury, even death to others. I think that applies here. Any lawyers reading this want to help us out. I'm just glad no one got killed.

      February 28, 2012 at 5:24 pm |
    • GodPot

      "Hey, it's not r a p e, she was askin for it, look at that skirt, if it were any shorter it would be a belt..."

      "Hey, it's not assault, he was askin for it, standing there in a costume meant to offend a religious group..."

      "Hey, it's not assault, he was asking for it, standing there all gay like giving me those gay looks..."

      "Hey, it's not murder, he was asking for it by helping those women legally terminate those pregnancies..."

      The violence won't stop until we stop making excuses for people who commit clear crimes.

      February 28, 2012 at 5:34 pm |
  2. marc

    The judge is bias because he is a muslim convert and an islamic fanatic. http://counterjihadreport.com/tag/judge-mark-martin/
    With his ruling, it would mean anybody can physically attack someone who is expressing his/her freedom of expression just because he thinks it is offensive and cannot be charged for the assault. How about those baptists protesting in the funerals of dead soldiers... can they be attack because they are offensive and insulting the dead soldiers and not get charged? There was another atheist wearing a costume like the Pope, if someone assaulted him did you think Judge Martin would also set him free? I don't think so.

    February 28, 2012 at 5:10 pm |
    • sarah

      There really is a lack of evidence. Someone yelling off-camera, "hes attacking me" isn't evidence when that person set out to provoke people. Those "witnesses" were all a part of his little group. He may had been attacked, he may not have. That's lack of evidence.

      February 28, 2012 at 5:15 pm |
    • John

      The judge is wrong even though I agree that Ernie is a jerk.

      February 28, 2012 at 5:18 pm |
  3. islam=tyranny

    the so called prophet Mohamed was also a polygamous, child mol_ester who rap_ed a 9 year old girl, islam is not just a religion it is a system of gaining full social, economic and political control over people and keeping them ignorant so they will believe whatever they are told, and hate and kill who ever speaks the truth to them!

    February 28, 2012 at 5:10 pm |
    • travis

      Islamists follow Allah, not Muhammad. Israel is an Islamist nation, Iran is Muslim nation if that helps you understand. "know what you are saying before you say it".

      February 28, 2012 at 5:16 pm |
  4. Judge_Incompetent

    He did not need to "scold" Perce.......that's where judge circle jerk went wrong.

    February 28, 2012 at 5:08 pm |
  5. BobS

    Personally, I believe that both should have been found guilty. Mr. Perce seems to have had an intent to provoke a confrontation, in PA I believe that would be disorderly conduct. Mr. Elbayomy appears to have either assulted or harassed.

    February 28, 2012 at 5:07 pm |
  6. Thomas Paine -Para Bellum-

    The atheist protester has a right to be as provocative and insulting to any religion as long as he is within the bounds of the First Amendment (meaning that he is not bullying, tormenting, harassing, or singling out anyone else in a way that infringes upon their rights). This was not a KKK cross-burning. This was just a man expressing his beliefs. If the judge wants to scold someone for expressing his beliefs, he should be fired.

    I am far from being a Republican, but I have to say that those allegations of "Shariah law coming soon" might not be as ridiculous as I previously believed – except that Shariah law won't come, but something just as bad will continue to wreak havoc.

    Political correctness HAS come to your doorstep already, and its effects are being seen in cases like these. Respect the rights of everyone and infringe on the rights of no one. The protester just had his rights violated by a Muslim extremist (typical, when you think of the way they treat their dissidents back home). We need to tell ALL bullies, whether in our schools or on our streets, to step back or pay the price. The Muslim bully in this case deserved jail time for assault, yet he got away with it.

    Let's learn to elect politicians who will be progressive-minded, conservative where it matters, and willing to protect EVERY amendment in the Bill of Rights.

    February 28, 2012 at 5:05 pm |
    • Scott

      You say not harassing or provoking. Are you nuts? Depicting the prophet Mohammed as a zombie? Against people who will kill you for burning their holy book. Just want do you consider over the line here? If he did that in any number of countries, he'd be dead now. I think Muslims have some screws loose, but that doesn't excuse his behavior.

      February 28, 2012 at 5:14 pm |
    • Phineas

      Scott, please leave the "he'd be dead in any other country" argument to those other countries. It's irrelevant here.

      February 28, 2012 at 5:16 pm |
  7. chris

    the only religion that feels that they can do what they want when they are muslim and thats according to Sharia law

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

    Unless you think violent assault is a good and decent response to speech, call and make your opinion known.

    Call the judge's office now:

    717-240-7864 << live operator

    717-766-4575 << leave message

    February 28, 2012 at 5:05 pm |
    • jimtanker

      Thanks momoya, I'll call right when I get off of work.

      February 28, 2012 at 5:06 pm |
    • derp this is logical

      Go watch the video of the incident. Very overdramatic and it was clearly intended to grab headlines like this to promote the Athiest agenda. Quit making this into more than what it is.

      February 28, 2012 at 5:08 pm |
    • americangrrl

      We are Americans and have a right to say whatever we want as long as we face the consequences of insulting someone.
      I would attack any person American or foreign for insulting what I hold dear my country, my mother, or my religion.
      We have freedom of speech but remember people are sued for slander everyday in the US.

      February 28, 2012 at 5:16 pm |
  9. F_U-C'K mohammed

    This is ridicules, Islam is a threat to the people of the world and needs to be put down all they do is spread hate and promote ignorance so they can keep a hold on peoples thoughts, its the religion of tyrants!!! Burn the Mosques and kick them out, freedom of religion does not defend those who believe in killing anyone who doesn't agree with them!

    February 28, 2012 at 5:04 pm |
    • travis

      Muslim's are not islamists. Islam does not follow Muhammad. Know what you are saying before you say it.

      February 28, 2012 at 5:07 pm |
    • Nonimus

      @F_U-C'K mohammed, (He's dead and buried, but if you want to do that to a set of bones...)

      Religion doesn't kill people, people kill people... religion just makes it easier to justify.

      February 28, 2012 at 5:12 pm |
  10. travis

    You have the "Right of Free Speech", except in the case to incite a riot. This idiotic "atheist" actions were among those that would and did incite riotous actions. What I am amazed at is that the Muslim impostor was attacked before the idiot in the Pope outfit.

    February 28, 2012 at 5:03 pm |
    • me

      Really?? You think that the Westboro Baptist Church were not inciting a riot??? Really????

      February 28, 2012 at 5:14 pm |
    • derp this is logical

      Is it bad if I want someone to do this to the Westboro Baptist guys?... Those guys really need to learn some decency.

      February 28, 2012 at 5:16 pm |
    • Nonimus

      Incitement
      "... in Criminal Law to instigate, persuade, or move another to commit a crime; in this sense nearly synonymous with abet."

      How exactly did the Atheist persuade, or help (abet), the Muslim to hit him?

      February 28, 2012 at 5:17 pm |
    • FederalReserve Brown

      freedom FROM religion is much much more important... this judge needs lead poisoning real bad....

      February 28, 2012 at 5:21 pm |
    • Nonimus

      @FederalReserve Brown,
      Now that, in the right circu.mstances might be considered incitement.

      February 28, 2012 at 5:33 pm |
  11. Judge_Incompetent

    I hope this judge's peers look at him with shame and contempt from now on.......he's certainly earned it.

    February 28, 2012 at 5:03 pm |
  12. chris

    welcome to the United States of Islam

    February 28, 2012 at 5:02 pm |
  13. Edward Simms

    There is no such thing as abusing a right. It is either a right to be used or not a right but a privilege to be granted.

    February 28, 2012 at 5:01 pm |
    • Rob

      Yes, because you know, your rights have no limits and can't be abused like you said. Hence why if you were to walk into a white house tour, or an airport and yell "I have a bomb" everyone's going to be okay with you expressing your right to free speech.

      February 28, 2012 at 5:10 pm |
    • lgny

      You have a right to insult others. The others also have a right to react to the insult.

      In this case, no real long term harm was done. The judge was appropriate to drop the matter. There's a great tendency to turn every spat into a crime.

      Had the Muslim done serious harm causing major injuries, then it would be an appropriate legal matter.

      February 28, 2012 at 5:15 pm |
    • Nonimus

      @Rob,
      Yelling "i have a bomb," much like the classic example of, yelling fire in a theater, is not a protected right. and I think @Edward Simms was saying, I you have the right to do something then how can it be abused. If you are doing something you have no right to do, as in your example, you are breaking the law.

      February 28, 2012 at 5:22 pm |
  14. JoJo

    Would this hold true if you believed a Gay person offended you and you beat him or her just because they were gay? Or , if a non-caucasian offended you because of their color, it would be OK to beat them and claim they incited you to do it? Or, if a Nun offended you because of the way she dressed? This can go on and on. Assault and battery is not the way to get your point across.

    February 28, 2012 at 5:01 pm |
    • sarah

      So the KKK does its little march and you call out in protest and one member yells off-camera "hey, he's attacking me" and then the parade members all act as witnesses against you? You would be ok being convicted on that? Because that's essentially what happened.

      February 28, 2012 at 5:03 pm |
    • Nonimus

      @sarah,
      " Because that's essentially what happened."
      Do you mean that's what happened in this case? Because that's not what I understand happened. do you have evidence?

      February 28, 2012 at 5:25 pm |
  15. bluemax77

    They‘re all big boys, they’re get over it...

    February 28, 2012 at 4:59 pm |
  16. James

    "People like Thomas Paine spent his entire life ticking off people across the colonies." – Yeah except in his day you might be challenged to a duel and be shot for something you said. Perspective is out the window honestly just because everyone on here is racist as hell and can't see how this is no different than going and shouting the n-word in a ghetto. If someone did that and was assaulted it would go down as having been provoked, which is the case here where our friend was deliberately provoking a minority, he isn't stupid.

    Nowhere did anyone ever try to assault was legal, or that it was was okay because Talaag was offended. Yet lets look at the comments? People must be sweating a lot on here for all the jumping to conclusions that was done here. Ladies and gentlemen, if you can't see how this is racist then you all need to seriously reevaluate yourselves. I doubt so many people would be nearly as upset as if it had been the same as my example; and that's exactly what racism is people.

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

      What on earth does race have to do with Islam?

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

      Religious belief and race are not the same thing.
      Mocking a religious belief is not a racist act.

      And let's not forget what a minority atheists are in this country.

      February 28, 2012 at 5:11 pm |
    • James

      Yes, and now we resort to trying to differentiate discrimination against minorities, which was the greater point of what I have said. Quit trying to play pretend. Like someone else said, while you're trying to defend freedom of speech why don't you also defend innocence before guilt and reasonable doubt? Wait, what's that? You're not, well there you go, now you see the problem. Islamophobes each and every one of you.

      February 28, 2012 at 5:19 pm |
    • GodPot

      Here is the definition of racism:

      rac·ism/ˈrāˌsizəm/Noun: 1.The belief that all members of each race possess characteristics or abilities specific to that race, esp. so as to distinguish it as...
      2.Prejudice or discrimination directed against someone of a different race based on such a belief.

      No where in there do I see "saying the 'N' word" as defining racism. Words should not be legislated, actions should. I will agree that it seems clear Mr. Perce was intending to incite some sort of action, however this still does not give license to the offended to take that action and go from being offended to assaulting another human.

      February 28, 2012 at 5:26 pm |
  17. rtg

    "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."

    Exactly! This atheist shows what happens when we flippantly insult others, just because we can. Face it, he had no reason to do what he did except to inflame muslims, that's it. If you do something malignant, don't cry about it when it comes back to bite you on the butt. Personal responsibility, this atheist needs to learn it.

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

      And again, this wasn't just one person insulting one specific religion, there was a guy dressed in a zombie pope costume.

      This was a group of people expressing their beliefs that ALL religions are nonsense....it just happens that a Muslim got offended and took it too far.

      February 28, 2012 at 5:11 pm |
  18. J H W

    So acording to this judgs' logic... Because I'm a soldier, and the message preached by that baptist church that was protesting soldiers funerals is offensive to me, I can assault them freely, just as long as I make sure there are no witnesses! SWEET! Anyone remember the name of that church? And where did I put my brass knuckles....

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

      Ha ha love it! I cant stand that church!

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

      Where have you been. You can't be prosecuted for anything if there is no evidence. Doesn't mean it's right, just means the state won't punish you. However, if the only reason you follow the law (man's or a god's) is fear of getting caught then I don't want you as a neighbor.

      February 28, 2012 at 5:05 pm |
    • J H W

      Thats fine. You dont need to be my neighbor for me to be willing to go to war on your behalf. My point wasnt that laws should be only feared because you might be caught. My point was that this judge is an idiot who's using logic that doesnt conform to the law. He deserves to be disbarred for this case.

      February 28, 2012 at 5:11 pm |
    • derp this is logical

      You are allowed to scream off camera that they are assaulting you and then go in court with virtually no evidence and garner national headlines like this... yes.

      February 28, 2012 at 5:11 pm |
    • Nonimus

      I think the evidence is very indeterminate at this point because we don't have the full story. If the there really was insufficient evidence then the judge was absolutely right, regardless of what he personally felt. Although, I think the lecture was wrong, I don't think that is part of the official "decision".

      If, however, he overlooked some valid evidence with the intent of dismissing the case, then he is wrong, I think.

      In addition, I'm not sure how much discretion judges have in this type of case, it seems there was little physical contact and little, if any, physical harm done? If someone comes up and pokes you in the chest, technically that's assault, or maybe battery, but should you sue them for it, I don't know. It depends, I guess.

      February 28, 2012 at 5:43 pm |
  19. tallulah13

    While I can see the point about no witnesses, I absolutely disagree that religious sensitivity is reason enough to excuse as.sault. If freedom of speech can protect Fred Phelps, it most certainly protects atheists. I hope that judge is censured for that statement.

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

      I don't think he said it was a good reason for assault. I think he was trying to make the point that the atheist was abusing his right to free speech. He still has the right. But what he did was risky and juvenile. Trying to provoke a violent assault is never very smart. You wouldn't go into a bar and insult everyone there either and if someone did, you'd be justified in calling them an idiot and their assailant a moron too. 😛

      February 28, 2012 at 5:10 pm |
  20. Scott

    The atheist doesn't have a prayer of a chance.

    February 28, 2012 at 4:53 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.