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. IslandAtheist

    Next year I'm going to be a Zombie Flying Spaghetti Monster,,, nobody ever makes fun of Pastafarians.

    February 28, 2012 at 12:45 pm |
    • asdf

      watch out, someone might strangle you with your own noodley appendage.

      February 28, 2012 at 12:47 pm |
    • jimtanker


      February 28, 2012 at 12:53 pm |
  2. Nam Vet

    This must be tough on the so-called "Christian right." The either/or mentality gets stressed when the choice is atheist/Muslim. This whole fiasco looks like prosecution laziness.

    February 28, 2012 at 12:45 pm |
    • John Deatherage


      February 28, 2012 at 12:50 pm |
  3. richard

    that a judge would say he was "outside his bounds of the first amendment" is ridiculous! I can not believe that! I suppose the blacks were outside their bounds when they marched for their freedom too?? Perce has every right to speak out against what he feels if religious brain washing. And our countries Judicial system should back it up!

    February 28, 2012 at 12:43 pm |
    • asdf

      hahaha – as much as I agree, I think it's a little dishonest to compare blacks marching for civil rights to a guy wearing a zombie muhammad costume.

      February 28, 2012 at 12:45 pm |
    • richard

      actually it is not. we are entering a religious takeover in this country, just look at the republicans wanting to force their religious christian beliefs on us. If we don't start speaking our minds and stopping the mixing of church and state we are in for a big big problem!

      February 28, 2012 at 12:51 pm |
  4. Pope on a Rope

    It wasn't that the judge is biased towards Islam. That's a straw man argument he's using in his defense. He is clearly biased against atheists. If an abortion protestor had been attacked because they were dressed as a dead fetus, I'm 100% certain this judge would have sided with the abortion protestor.

    February 28, 2012 at 12:43 pm |
    • Art

      My point exactly.

      February 28, 2012 at 12:47 pm |
    • Pips

      Exactly right, and well said.

      February 28, 2012 at 12:50 pm |
    • MarkinFL

      Very well stated. The judge was clearly trying to deflect away from his pro-religion bias.

      February 28, 2012 at 12:54 pm |
    • Dan, TX

      isn't it more likely that the judge thought that since the guy is an atheist, he should have a higher standard of rationality and common sense then someone who believes in ghosts, spirits, and gods? Someone who believes in god is much more likely than an atheist to be enticed to do something irrational, like attack someone. Thus, the atheist simply should know better and show better rationality and common sense than he did. He should no better not to poke the snake or tease the lion. The snake and the lion can't know better, they rely on programs in their brains.

      February 28, 2012 at 1:12 pm |
  5. asdf

    This judge may have had the proper legal reason to dismiss the case (a lack of evidence, which seems unlikely given that there's a video...), but to chastise someone for exercising his first amendment rights is wrong and out of line especially coming from the bench. All this judge did by saying that stuff is open himself up for an appeal on grounds of bias, make himself less popular to his electorate (if he is elected), and criticize the victim of a crime. The fundamental underpinning of the first amendment depends on the government protecting those who are exercising their rights. If everybody who says something unpopular does not deserve the state's defense, then we have no first amendment.

    February 28, 2012 at 12:43 pm |
    • Art

      Excellent point.

      February 28, 2012 at 12:48 pm |
    • justageek

      The judge was also exercising his right to free speech so what's the problem exactly?

      February 28, 2012 at 12:50 pm |
    • asdf

      @justageek: I didn't say there was anything illegal about what he did, I'm saying its inappropriate. Just like one can say that the victim here was inappropriate in his actions, but still didn't deserve to get choked. You are still subject to criticism when you say things, regardless of the first amendment. Similarly, I was offended by the judges comments, but I wouldn't expect the state to just pass on prosecuting me if I punched him in the face.

      February 28, 2012 at 1:03 pm |
  6. cacique

    One thing is to be an atheist and another very different is to make fun of others' religion just to ridicule them...Muslims are very intolerant with things regarding their prophet, even to the point of being fanatics, so if anybody is going to show his "freedom of speech" he has to be ready to make his behind a target for the orthodox fanatic's foot. An atheist does not have the right to poke fun and then be a cry baby when the foot hits the ars...

    February 28, 2012 at 12:41 pm |
    • BRC

      Actualy in the US yes he does. The people are protected and defended against violence and harm, regardless of what they think, believe, or say, so long as they don't break any laws. He didn't, so he should have had a reasonable expectation of protection.

      February 28, 2012 at 12:43 pm |
    • asdf

      You might believe that morally, but under US law he deserves protection. Just like the muslim guy would have deserved protection if he were criticizing atheists and someone attacked him. We have no first amendment if the state doesn't prevent violence against those with unpopular views.

      February 28, 2012 at 12:46 pm |
    • Blue

      Cacique: "One thing is to be an atheist and another very different is to make fun of others' religion just to ridicule them"

      Yes, they are two different things, but that's completely irrelevant. Ridicule is not a crime. Physical assault IS a crime. Do the math.

      C: "so if anybody is going to show his "freedom of speech" he has to be ready to make his behind a target for the orthodox fanatic's foot"

      No, he absolutely does not. That is the point. Think of all the TV shows that use mockery and ridicule – do you think Jon Stewart, Stephen Colbert, Daniel Tosh, Matt Stone & Trey Parker, etc, should all be subject to physical assault because they mock people on a regular basis? What kind of crazy thinking is that?

      February 28, 2012 at 12:49 pm |
    • JLP

      Just because his prophet was ridiculed did not give this moron a right to attack. If this had been a Christian attacking an Atheist, the judge would have found him guilty.The judge is biased, plain and simple.

      February 28, 2012 at 12:52 pm |
    • Dan, TX

      You can find a Christians eventually who will punch someone for defiling Christian sensibilities. But in general Christians won't be too upset if you urinate on an image of Christ, they are used to people being jerks. But it seems like Muslims are not used to Americans and a greater fraction of them are likely to go over the edge in response to insults to their religion. I guess if we get them used to insults, they eventually will mostly ignore them. So, we should burn Korans every day, eventually the Muslims will get tired of it by conditioning?

      February 28, 2012 at 1:00 pm |
  7. Scargosun

    When you use your "First Amendment Rights" in the way Pearce did, you just look like a complete idiot. What is interesting is that Pearce chose a Muslim prophet rather than a Christian one...in Pennsyltuckey...oh excuse me...central PA. If he had chosen Jesus or Moses what would have been the outcome? What would the "American Athiests" have to say about it then? They specifically had a problem with the IMMIGRANT status instead of the religious status. Stop and think about it. If you are an Atheist yet associate with a specific group for your Atheism, it's just another form of organized religion. If you can't stand alone in your beliefs, you might want to take a good long look at yourself. AND if you are specifically targeting one type of belief system, you are just a hate monger, obviously and have no clue what being an atheist actually means.

    February 28, 2012 at 12:40 pm |
  8. NotBuyingIt

    The judge made some good points. That being said, the assaulter should indeed be punished to some extent.

    February 28, 2012 at 12:39 pm |
  9. Salero 21

    Help our Veterans to make a transition back to Civilian Life. Especially those who have spent too much time in Combat Zones.

    The Military way of life is more like a Fascist way of life and doing things. This Judge comments are Living proof of that. His comments, are more in tune with the way life is inside Military posts and in the Military courts system. As a Vet myself I understand what he is going thru. He need help and probably additional Education/Training to understand the Differences between Civilian and Military Life, Laws, Rights and Cultures.

    February 28, 2012 at 12:39 pm |
  10. Al

    The case should be reinstated, by a higher court, and this judge should be removed from the bench while a review of his ability to serve is conducted. If the attacker is on immigration papers, and he is found guilty, he should be deported.

    February 28, 2012 at 12:38 pm |
    • want2believe

      Why should he be dismissed?! The outcome of the case had nothing to do with this man's 1st amendment rights.

      "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 commonwealth didn't present enough evidence to show me that this person is guilty beyond a reasonable doubt"

      Did you miss that or just choose to ignore it?

      February 28, 2012 at 1:02 pm |
    • al

      Apparently you are the one not reading. I stated he should be removed from the bench while a review was conducted. Even though it is obvious the judge created a verdict to cover his bases, his remarks on the situation show he (the judge) lied in his writting. A group of his peers should review his actions. The "ones word against another's word" is not supported by the information in this article nor by this judges statements.

      February 28, 2012 at 3:44 pm |
  11. Mike

    Gahhh! Another example of how religion destroys humanity! Wake up people! It's all a MYTH!

    February 28, 2012 at 12:38 pm |
    • todd in DC

      My invisible, magical sky monkey can beat up your invisible, magical sky monkey.

      February 28, 2012 at 12:42 pm |
    • Salero 21

      Huh! Sure Mike, like atheism and atheists have not destroyed one single life or country. How about Stalin, Pol Pot, Mao Tse Dung et al? Never mind, I already lost count!

      February 28, 2012 at 12:49 pm |
    • asdf


      You'll notice that none of those people you listed did it in furtherance of atheism. People invoke god all the time before they kill people (or assault people, like here). Pol Pot wasn't trying to cleanse his country of religion, and neither were the others.

      ...Although I guess Stalin did, kind of. But that was more of a psychological thing. He didn't want anybody worshiping anythign above the state. He didn't have a particular distaste for religion.

      February 28, 2012 at 12:57 pm |
  12. Enoch

    "With rights come responsibilities. The more people abuse our rights, the more likely that we're going to lose them,"

    Disheartening when a judge doesn't realize the difference between rights and privileges.

    February 28, 2012 at 12:37 pm |
    • asdf

      What do you expect from a low-rent place like central PA? The guy is probably the only person in town with a law degree.

      February 28, 2012 at 12:53 pm |
  13. Lisa

    As an atheist I am very offended by what the person in the mohammed costume was doing (I sure would have liked to give him a thump). In a country built on the belief of freedom of religion, that means everyone has the right to believe or not believe and no one should be ridiculed for those beliefs. Good call Judge Martin.

    February 28, 2012 at 12:36 pm |
    • BRC

      SO though you agree that everyone has a right to believe or not believe, you actually agree with the idea of physically reacting something someone says or protrays? How can that make sense?

      February 28, 2012 at 12:41 pm |
    • robert

      You are not an atheist and you clearly are not someone who believes in freedom of speech.

      February 28, 2012 at 12:45 pm |
    • Dan. M

      In islam, a women who dresses provocatively is an offense. Does that give muslims the right to attack women in shorts or bathing suits? In islam, unrelated men and women should never be alone together, it is offensive to some muslims. Does that mean they should be allowed to attack unmarried couples? In islam, damaging a quran is offensive. Does that mean someone who destroys their own property – including a quran – should be physically attacked?

      Your comment is absurd and stupid. The whole point of the First Amendment is to PROTECT people who express opinions about ideology (that includes religion). It defends your right to say what you want about any belief system, political or religious without fear of violence or retaliation. It does NOT protect your beliefs against ridicule.

      If you are an American, you need to go back to school and learn about the founding of this country.

      February 28, 2012 at 12:46 pm |
    • Dan, TX

      As an atheist also, I agree completely. The guy suffered no permanent injury. If you intentionally try to offend people, you will eventually draw a physical response. If he were marching dragging the American flag in the dirt behind him, he might also have found someone to punch him.

      February 28, 2012 at 12:54 pm |
    • Dan. M


      So your measure of legality when it comes to assault is whether the victim suffers permanent injury? That's as ridiculous as Lisa's comments. Neither of you can seem to grasp that the First Amendment is meant to PROTECT people from violence when expressing an opinion. It does NOT protect you from hurt feelings if someone's opinion offends you.

      And it does NOT justify violence under certain conditions that YOU deem offensive. The right to free speech applies to EVERYONE, including those who express opinions YOU find offensive.

      Dragging a flag on the ground might get someone punched, but it still would NOT be legal.

      February 28, 2012 at 1:05 pm |
    • Dan, TX

      Dan M. you are correct technically. But people do get punched all the time for saying stupid things, and very few of them go to court. If we went to the law everytime someone clocked someone else our judicial system would be clogged with petty arguments about this stuff. COMMON SENSE is what the judge emphasized. If you intentionally insult someone in a way that you know is extremely painful mentally, you should EXPECT that you might get a physical response. Don't hide behind the first amendment to pretend that mental pain has no value compared to a very small physical pain. There is a point where common sense matters.

      February 28, 2012 at 1:19 pm |
  14. Rosstrex

    Honestly I would be the first in line to condemn any attack on someone speaking their mind. I for one dispise Islam and the 7th century illiterate pedophile that invented it. However in this case if we have no witnesses or evidence presented to the judge then it is one person's word against another and that makes this a dismissal,

    February 28, 2012 at 12:36 pm |
    • Dan. M

      You might come to that conclusion if you only read the CNN narrative. But there is much more to this case. There was video evidence that collaborated the victim's story. There was a spontaneous statement to a responding police officer, by the attacker, who admitted he attacked Perce because he thought portraying muhammad was illegal. (Courts have ruled spontaneous confessions and statements at the scene are admissible)

      At youtube, you can hear the judge's comments where he acknowledges the attack, but then justify it by saying the attacker acted to "negate an offensive situation" (the judge's words, not mine). Google around to other sites that have more info.

      February 28, 2012 at 12:52 pm |
  15. In the News

    By golly ol' man MO is in the news yet again!

    February 28, 2012 at 12:34 pm |
  16. Naija

    The Muslim should have used the argument of momentary Insanity after he strangled him to death,Just because you have the right to do something does not make it right to Insult other people.There is a law against bullying now adays and you can also argue the fact that you have the right to say whatever you want to somebody.

    February 28, 2012 at 12:31 pm |
  17. Nobody N. Particular

    The judge was correct in his ruling; these individuals are doing nothing but using their "freedom of speech" to stir up hard feelings. If you provoke someone by insulting them or their religious/family values, you should expect a negative reaction; and you certainly shouldn't be able to sue for harrassment (since you incited it). As for criminal charges for the assault, that was not addressed in this case (it would be in criminal court not civil), Mr Elbayomy certainly appears to be guilty of assault; but a jury might side with him since he was provoked, but that would be jury nullification. I wish more people would learn to be respectful with regards to others' beliefs; no one said you had to agree with them, just learn to be respectful of their right to believe it.

    February 28, 2012 at 12:31 pm |
    • Enoch

      That wasn't his ruling.

      His ruling was there was not enough evidence to support the claim. The rest was just editorializing.

      February 28, 2012 at 12:38 pm |
    • Some body

      I agree to your point of respecting people and their right to believe what ever they want. That being said, doesn't every religious follower have negative things to say about people who dont follow a faith every single day on the streets, in the news, on the radio? I do not practice any religion, and I get tired of every where I go or look or listen, to people shoving their religion right down my throat. I dont care what people do with their lives, but I do care when I am ridiculed for not following a certain faith.

      February 28, 2012 at 12:51 pm |
    • Dan. M


      Actually, the judge made conflicting statements about the attack. If you listen to the youtube recording, the judge acknowledges the attack but justifies it by stating it was not meant to "harass, annoy or alarm" the victim, which would have been a crime, but rather to "negate an offensive situation," which apparently the judge finds would NOT be a crime.

      February 28, 2012 at 12:55 pm |
  18. Jeepers

    If Westboro Baptist church can get away with being incendiary in the wrong places and at the wrong time, why can't this guy?

    February 28, 2012 at 12:31 pm |
    • Smukers

      Exactly. And, check out the Website "americanatheists.org". The judge, Mark Martin, is quoted as saying "I am Muslim, I find it offensive". Interesting, huh?

      February 28, 2012 at 12:41 pm |
    • It's all sad

      Thank you @Jeepers, those were my first thoughts as well. As an atheist, I despise clowns like this who give us a terrible name, but as a free American that is his right. I'm not one for hiding what I believe, but acting like the backside of a donkey about it does nothing.

      February 28, 2012 at 12:42 pm |
  19. Kevininvancouver

    Lets hope this judge is one of those that are elected.

    February 28, 2012 at 12:30 pm |
  20. jhutch42

    Muhammad blows goats... lock me up.

    February 28, 2012 at 12:30 pm |
    • Heroicslug

      Also, Allah is fictional.

      But if it were real, I'd kick it in the teeth.

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

      @ Heroicslug: I'd help hold him while you kick him in the teeth!

      February 28, 2012 at 12:42 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.