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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. Rosslaw

    Let's try again. The Judge held that it was one man's word against another-period. The Judge actually needs evidence to convict, in this instance an independent third party would have been nice, and he's not supposed to "fill in the blanks" by concluding based on nothing that "it must have gone like this". Sounds like he's got his head on straight. Nice change of pace.

    February 28, 2012 at 12:14 pm |
    • denver2

      His head on straight? The idea that the First Amendment doesn't cover objectionable speech is unprecedented. It's ridiculous.

      February 28, 2012 at 12:18 pm |
    • Doug

      @Denver2.. lets try it one more time for you.. There is no proof is what the judge said.. The first ammendment right comes after!

      February 28, 2012 at 12:33 pm |
    • Eric

      The judge didn't have enough evidence to convict because he refused to admit the evidence that showed physical contact. He would not admit the video into court showing the altercation. He ignored the testimony from one of the officers who said the Muslim said he had physically touched the atheist, which is in conflict with what he said under oath. The judge also refused to listen to evidence from a witness (the zombie Pope) who was there. How much more biased can a judge be?

      February 28, 2012 at 12:35 pm |
  2. MandoZink

    So if a Christian or Muslim is carrying a sign making fun of your atheism, you may attack them? HUH? How is that? Worse yet, religious proselytizers also threaten damnation too. How insensitive is that message? This was non-threatening satire. How lost is this judge?

    February 28, 2012 at 12:14 pm |
  3. kaye brouse

    Freedom of Speech does not include the right to yell "Fire!" in a crowded theater. If you want to be horrifically offensive you can expect to get a punch in the nose.

    February 28, 2012 at 12:13 pm |
    • denver2

      You should really invest some more time reading about the Schenck case before you misapply it publicly.

      February 28, 2012 at 12:17 pm |
    • Jefferson Truth

      Clearly you do not understand the "yell fire" concept. It means freedom of speech does not include the right to say somthing that can lead to hard of another person. Yelling fire in a crowded theatre could lead to a rush to exit which can cause harm. This mans action was causing no harm

      February 28, 2012 at 12:20 pm |
    • MandoZink

      This is more analogous to standing outside the theater and telling the people in line how stupid it is to go see the movie. It's not like these people invaded a mosque to harass worshipers. It was in a public space and not nearly as offensive as the Westboro Baptist Church ever is.

      February 28, 2012 at 12:25 pm |
  4. dew44

    "Self-proclaimed atheist" Ernie Perce marched in a Halloween parade...
    Interesting, I don't recall anyone characterized in the media as a "self-proclaimed Christian" or a "self-proclaimed Muslim". Seems as though characterizing onesself as a believer is more legitimate than characterizing onesself as an atheist.

    February 28, 2012 at 12:11 pm |
    • Eric

      You cannot be accepted into, or excommunicated from an atheist church, since it doesn't exist, unlike, for example, the Catholic Church.

      February 28, 2012 at 12:36 pm |
  5. Freedom of speech?

    The trillion dollar question whose speech?

    The atheist or the muslim?

    February 28, 2012 at 12:11 pm |
    • denver2

      Assault isn't speech.

      February 28, 2012 at 12:12 pm |
    • Judge Kudi

      Thanks for clarifying that denver2. Now the case may proceed..alas it was open and shut already !?!?

      February 28, 2012 at 12:27 pm |
  6. Dont need copilot

    So this muzlim comes to THIS country and tries to push HIS religion down our throats and says he is "obligated" to attack if he seems to feel that HIS religion is mocked??? Hmmmm... it is this same fanatic thinking that terrorists use, muzlim terrorists.
    Looks to me like terrorists in our midst, on OUR soil. And this UNpatriotic judge clown lets the attacker off scot free!!!
    America Akbar!!!

    February 28, 2012 at 12:11 pm |
    • Heroicslug

      I believe the exclamation you're looking for is:

      ADMIRAL AKBAR!!

      Watch out for traps.

      February 28, 2012 at 12:19 pm |
  7. harrison

    I can't wait to hear the idiot republican candidates try to link this to Obama

    February 28, 2012 at 12:10 pm |
  8. richard

    You would never see a Christian or Muslim described as "self proclaimed". By inference you make the word "atheist" sound pejorative.

    February 28, 2012 at 12:10 pm |
  9. Hitchens

    Given the choice between an American Muslim or a godless atheist, go with the Muslim every time.The best place for an atheist is in a grave, preferably before it has had a chance to influence some innocent. Trust me on this one, I know.

    February 28, 2012 at 12:09 pm |
    • denver2

      I have to assume you selected your handle to maximize irony?

      February 28, 2012 at 12:11 pm |
    • Godless Atheist

      you're pretty funny

      February 28, 2012 at 12:12 pm |
    • Absolutely

      I know what you mean, Hitch. Atheists feel free to do pretty much whatever they want.

      February 28, 2012 at 12:13 pm |
    • Dont need copilot

      Typical thinking for someone of your limited capacity. Keep enjoying your mental crutch. HAHAHAHA 🙂

      February 28, 2012 at 12:14 pm |
    • Joe T.

      @Absolutely, it has been my experience that most atheists maintain the same lifestyles as most religious people, except they don't pray to some being in the sky.

      February 28, 2012 at 12:18 pm |
    • Jadugara

      Regardless of who you may have indicated deserves to "go in the grave", that makes you a disgusting, sub-human creature that needs to share some other country's soil and air.

      February 28, 2012 at 12:19 pm |
    • Lucifer's Evil Twin

      Hi troll,

      So, rhetorical question; how long have you been mentally retarded? I'm assuming since birth.

      February 28, 2012 at 12:21 pm |
  10. Jimbo

    I bet the judge will be voting for Santorum.

    February 28, 2012 at 12:08 pm |
  11. Joe T.

    You better watch out or the big bad Boogieman Muslim is gonna come for you with their Sharia Law!

    February 28, 2012 at 12:08 pm |
    • Doug

      One point, most of the folks missing here is, the Judge saying there is not proof of assault or harassment. One mans word against another.. !! Forget religion.. The schooling that the judge gave, is what everyone is getting riled on.. me no muslim, but started liking the judge for schooling the aethist on some common sense.. And for the self proclaimed aethist, he is no different than any of the religious bigots out there for trying to push his way of life onto others.

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

    I am no fan of Islam, but if you deliberately set out to provoke people, you can't really be that surprised when you get popped. What if the same guy showed up at an NAACP convention and started shouting racial obsenities. Should he really be protected by freedom of speech? What if he walked into a native American community and began mocking them and insulting them? Freedom of speech was meant to ensure that we had the ability to share our ideas without fear of the government, not to ensure we had the ability to insult and demean our fellow citizens. If he came into my Church on Sunday morning and insulted and mocked our worship, I would knock the hell out of him too! Show some consideration.

    February 28, 2012 at 12:06 pm |
    • whatsthedif

      Jesus would just love that - yes, knock the hell out of someone for coming to your church and abusing your beliefs!

      February 28, 2012 at 12:09 pm |
    • denver2

      And after you beat him up you would be charged with assault and, if the rest of American jurisprudence has any bearing on the case, you would lose in court. Assault doesn't become ok because you don't like what someone else is saying.

      February 28, 2012 at 12:10 pm |
    • Heroicslug

      Of course he should be protected! I don't care if he insults Jesus, the aliens, and your mother.

      Obscenities could be classed as public indecency, but the point remains: the first amendment exists to protect all speech – including speech which is unpopular.

      Jeez. What is up with people not understanding the First Amendment.

      February 28, 2012 at 12:11 pm |
    • BRC

      I feel like there's a turn the other cheek refernce in here, but I think that's been covered.

      Thin kof it this way, do we teach children to hit other children if they say something they don't agree with? No, becasue that would be immature and absurd. Why should we expect a lower standard of behavior from adults? Words are just words, whether or not you liek them doesn't matter, they are not an excuse to commit physical violence.

      February 28, 2012 at 12:12 pm |
    • Jimbo

      Chris, yes he should be protected by free speech. You may not like it or like what the person is saying but they have a right to do that. You also can punch him in the face, but you should also be punished for that action. Sorry, but we can't be distinguishing what is right and what is wrong when it comes to free speech. People can walk into a NAACP rally and yell out obscene racail slurs, they will look really stupid and it would be sad but I and I think most people still want to have that right.

      February 28, 2012 at 12:13 pm |
    • Adam

      "What if the same guy showed up at an NAACP convention and started shouting racial obsenities. Should he really be protected by freedom of speech?"

      YES!!! It's just like you are not allowed to punch Westboro Baptist people in the face while they picket a dead soldier's funeral. That is the ESSENCE of the First Amendment, that even the most objectionable or offensive speech is protected under the law.

      February 28, 2012 at 12:16 pm |
    • DamianKnight

      Unfortunately, the Supreme Court has repeatedly disagreed with you. Racial epithets and derogatory language against people is protected free speech. Examples are the Ku Klux Klan and the Westboro Baptist Church. The court has repeatedly held that these are exercises of the free speech, despite how vulgar and offensive the majority finds them.

      If you choose to be offensive, do you risk violence against yourself? Absolutely. Someone might just punch you in the face for what you say, but they should be charged and the appropriate punishment meted out once they are found guilty. We live in a society where we are allowed to speak our minds (within reason), and a violent response is not only inappropriate, but illegal.

      As a Christian, if I punched everyone in the face that made some disparaging remark about Christ, the Bible, etc, not only would I not be following of the tenants of Christ, but I'd spend my whole day doing that. We have to accept that people are going to have opinions that differ from ours, and some of those might offend our sensibilities. But as a civilized society, we can't just go around attacking each other for them...well, at least not physically.

      February 28, 2012 at 12:17 pm |
    • tekstep1

      Two words – Westboro Baptist.

      February 28, 2012 at 12:17 pm |
    • Eric

      This guy did not march into a mosque ridiculing the Prophet Mohammed. I'm sure there were WAY more Catholics than Muslims there (especially since it's expressly forbidden in the Koran to celebrate other religious traditions and Halloween is a Pagan celebration) and the zombie Pope was unharmed as far as I know. There was a police presence as well. The atheist had the expectation of not being attacked.

      February 28, 2012 at 12:25 pm |
    • What a hypocrite

      That's the good Christian way, right? Turn the other cheek...don't hurt people...forgive people their trespasses...be gentle...love everyone, including your enemy.... Seems like you need to learn a lot more about your own religion. Also, the guy didn't go into the muslim's mosque, so your analogy of him coming into your church is baseless.

      February 28, 2012 at 1:22 pm |
  13. KGO

    It seems that most people don't get what the judge is saying. He dismissed the case due to lack of evidence. PERIOD.

    He also advised the plaintiff to not go overboard with his first amendment rights, use common sense and avoid provocation. However, he also made it clear he would have allowed the case if there was enough evidence – provocation or not.

    Think about the opposite case. If someone dresses up as Bin Laden in a halloween parade in the US and burns the US flag, there is a good chance someone will try to stop him and even attack him physically. If this were to happen, wouldn't you say the parader should have used more common sense to avoid the attack? Absolutely YES. Does this justify the actions of any attacker? Absolutely NOT.

    February 28, 2012 at 12:06 pm |
  14. Atheism is not healthy for children and other living things

    Prayer changes things

    February 28, 2012 at 12:04 pm |
    • Heroicslug

      Bring out your crazy!

      *ding*

      Bring out your crazy!

      February 28, 2012 at 12:12 pm |
    • denver2

      Go change something with prayer and get back to us.

      February 28, 2012 at 12:13 pm |
    • JUDGE WAS WRONG

      PRAYER CHANGES THINGS? YEAH LOOK AT IRAN OR ANY OF THOSE COUNTRIES OVER THERE PRAYER WORKS REAL WELL FOR THOSE THAT DON"T FOLLOW THE GOVERNMENT RELIGION!! JAIL MAYBE STONING MAYBE BEATINGS MAYBE OR ALL OF THEM.

      February 28, 2012 at 12:16 pm |
    • Gary

      More atrocities are carried out in the name of religion than in the name of atheism....please, think before speaking!

      February 28, 2012 at 12:16 pm |
    • JoeMAMA

      Religion is unhealthy for children. Especially Catholic boys.

      February 28, 2012 at 12:17 pm |
    • Rich

      Prayer only helps the person praying. There is ZERO effect on anything else. Morals and Values can be taught to children, religion is a cult of non-fact based belief.

      February 28, 2012 at 12:22 pm |
    • Eric

      There's almost a perfect correlation of how religious a country is and how much of a hellhole it is. In the US, the more religious a state, the more likely it's also poorer, less educated, with more crime, more homicide, higher teen pregnancy, higher divorce rates, higher STD rates, etc. So if prayer is changing things, it doesn't look like it's changing anything for the better.

      February 28, 2012 at 12:30 pm |
  15. sumday

    The sad part is if this was a Christian who was offended and made an attack, he would be jailed without thought, but bc it is a Muslim thing it's oh we have to be sensitive to their views. It's alright for Muslims to kill Christians in their country, but not ok with us to offend them in our own country? Mohammad was a man who heard voices, told lies to get his way, started wars, broke promises, and sleep with little girls. If someone did those things today you would call them delusional not a prophet. The trust worthiness of a man's word must come from his actions- compare Mohammad’s actions to his words- he says peace while swinging a sword.

    February 28, 2012 at 12:04 pm |
    • Twm

      Well Stated

      February 28, 2012 at 12:14 pm |
  16. Zero Gods

    This judge probably thinks that girls in short skirts are asking for trouble.

    February 28, 2012 at 12:03 pm |
    • Joe T.

      Well aren't they?

      February 28, 2012 at 12:07 pm |
    • fred

      no, they are asking for an honor killing.

      February 28, 2012 at 12:12 pm |
    • Victim-blaming (satirical)

      They're asking a) to be victimized, b) after being victimized, to then be prosecuted under Sharia law for "adultery", and finally c) *then* to be killed in honor killings, for shaming their families...you know, by having be the victim of a crime. Great religion, that Islam.

      February 28, 2012 at 1:27 pm |
  17. Eric

    You'd think this judge, having spent years in countries where Sunni and Shiite have been at each other's throats for centuries, where women often have zero rights, where all life revolves around religion, where all criticism of religion is punishable by death, and are almost universally hell holes, would appreciate the value of our system, where we place a much higher value on free speech than over protecting the feelings of those who are religious from that speech. "Freedom of speech doesn't protect speech you like, it protects speech you hate." - Ron Jeremy.

    February 28, 2012 at 12:01 pm |
  18. denim

    Sounds like that judge doesn't understand a few things. (1) this isn't one of those Muslim countries, (2) First Amendment allows this kind of speech, (3) there's no such thing as the freedom to not be offended, see the 1st Amendment, (4) if I want to dress up as something offensive to Islam in *this* country, I can do it and bring charges of assault against someone who then takes physical offense.

    February 28, 2012 at 12:01 pm |
    • Jadugara

      It actually sounds like you are missing the most important thing.... The judge made his decision based on LACK OF EVIDENCE that there was any "assault" whatsoever... All we have is a video that shows nothing, and a testimony from someone who was OBVIOUSLY out there attemting to stir up trouble... Of COURSE he was going to claim he was "attacked", but if there wasn't enough evidence to support an attack or an assault, then the judge is obligated, BY OUR OWN LEGAL SYSTEM, to throw the case out, which is what he did...

      February 28, 2012 at 12:27 pm |
  19. Wanfuforever

    All the cases involving the Westboro Baptist Church make it clear that speech, no matter how offensive, is protected. It's been covered time and again. As Olver Wendell Holmes said, "The right to swing my fist ends where the other man's nose begins."

    February 28, 2012 at 12:01 pm |
  20. mcreated

    Everyone has a God-given right to be an idiot.

    February 28, 2012 at 12:01 pm |
    • SilentBoy741

      And almost everyone abuses the privelege.

      February 28, 2012 at 12:13 pm |
    • Heroicslug

      Everyone has the Lizard-King given right to be an idiot.

      Fixed.

      February 28, 2012 at 12:15 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.