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. Hitchens

    No complaint is more worthy of dismissal than that of an atheist.

    February 28, 2012 at 1:20 pm |
    • UglyTruth

      I do not like being burned alive so I am not an atheist.
      I am a realist living in reality not fantasy.

      February 28, 2012 at 1:23 pm |
    • WhatWhatWhat?

      You are certainly as delusional as you sound. What delusion do you subscribe to? The one where a guy riding a horse in the clouds pulls a sword out of his mouth and then kills everyone he doesn't like?

      February 28, 2012 at 1:33 pm |
  2. hippypoet

    i was under the impression that judges were appointed and once there they must be as blank slates and only use the existing laws and past rulings to make there decisions! guess not!

    i would vote for a law that states that all judges must be atheists – it is a stronge poisition to be in and no religious biased should ever play a part!

    February 28, 2012 at 1:20 pm |
    • justageek

      "i would vote for a law that states that all judges must be atheists" – You mean you want someone who is 'agnostic' since a far sided atheist is no different than a far sided theist. Both can be very dangerous with words that incite.

      February 28, 2012 at 1:24 pm |
    • hippypoet

      "atheist is no different than a far sided theist." right, all except the belief in god – thats a small matter right? being delusional is not only for believers but it is part of believing and so what judge that is part of any religion that is also capable of making decisions that are not biased towards THERE god? if a muslim killed a muslim thats a clear case of murder, but if a christian killed a muslim then they may be a court room drama and thats not right....NO atheist would care what religion these people belong to, they – me – would only concern ourselves with the facts and seek nothing but the truth then using that and that alone our decision would be made!

      what religious nut job can say that honestly?

      February 28, 2012 at 1:28 pm |
    • justageek

      "NO atheist would care what religion these people belong to" – That is a nice thought except every religious type article has just as many remarks from the Atheist that are designed to incite as from the religious people. My guess is that if those Atheist who feel the need to bash a religious person for their beliefs on a board like this were in a position of power they would use that bias in their decision making. Only an agnostic would really stand a chance of being totally unbiased in cases like this.

      February 28, 2012 at 1:35 pm |
    • hippypoet

      what about the idea of atheistic agnosticism as a person in a judges sit? do you think that would work?

      February 28, 2012 at 1:38 pm |
    • justageek

      "atheistic agnosticism" – Might could work. Deal.

      February 28, 2012 at 1:47 pm |
  3. svann

    Wait what? They were in a parade and the judge says its one person's word against another's? This is unbelievable.

    February 28, 2012 at 1:19 pm |
    • fintastic

      Exactly!... no witnesses? a parade? everyone looked the other way?.... doesn't make sense.

      February 28, 2012 at 1:24 pm |
  4. Greg B.

    This is outrageous! Only someone who cannot compete in the open marketplace of ideas will resort to violence when offended.

    I wonder if the judge would have offered up his same idiocy had an atheist attacked a religious person for telling him he was going to burn for eternity. It has happened to me, in front of my children, and in far worse language.

    Fortunately I don't resort to violence when challenged, and didn't have to find out. I would bet anything the result would have been far different.

    February 28, 2012 at 1:18 pm |
    • Noxx

      Well, now you can! according to this judge!

      What a crock. Resorting to violence should never be acceptable.

      February 28, 2012 at 1:20 pm |
  5. Atheism is not healthy for children and other living things

    Prayer changes things.

    February 28, 2012 at 1:17 pm |
    • justageek

      So do bullets but I don't think that's always right either.

      February 28, 2012 at 1:20 pm |
    • PMS

      You are dumb

      February 28, 2012 at 1:21 pm |
    • UglyTruth

      Praying to a make believe imaginary magical friend changes nothing.
      Meditation seems good for individuals, prayer is a form of meditation but nothing more.
      Sanity is good for people and society.
      The insanity of religion has proven to be bad for people and society.

      February 28, 2012 at 1:21 pm |
    • Hitchens

      Prayer is the joy of life in action.

      February 28, 2012 at 1:21 pm |
    • A. Goodwin

      A recent study suggests that there is more crime amongst those who prescribe to religion than those who are athiest or agnostic. Look it up.

      February 28, 2012 at 1:22 pm |
    • Atheism is not healthy for children and other living things

      Prayer changes things

      February 28, 2012 at 1:22 pm |
    • fintastic

      Don't feed the troll

      February 28, 2012 at 1:26 pm |
  6. I'm The Best!

    To the people saying the judge was right due to the lack of evidence. The judge threw out the evidence needed. There was a video that was thrown out, the cops testimony, and some eyewitness testimony as well cnn didn't cover all the facts. This judge should be disbarred.

    February 28, 2012 at 1:17 pm |
    • Jim

      Freedom and Justice for (all) some?

      February 28, 2012 at 1:19 pm |
  7. ConnieH.

    I'm pretty much anti-religion and even I agree with the Judge on this one. Free Speech is our right to express ourselves in intelligent discourse, without the threat of persecution. If you abuse this right, then be prepared for the consequences that it brings. I also think that there is one common virtue that is missing in today's society: RESPECT. No one respects anyone anymore, yet we're the first to protest if we feel disrespected. What makes us better than someone else? Shallow Narcissism is rampant in our society. Sadness.

    February 28, 2012 at 1:15 pm |
    • Noxx

      Assault is assault. No one assaulted the Westboro Baptist church protestors despite how rude and disrespectful they were and got away with it. This is simply the Judge not liking the guy because he's an atheist. By this logic I can bash anyone as long as I'm not caught on camera because they insult my "religion", or lack there of.

      February 28, 2012 at 1:17 pm |
    • Andrew

      I am a God fearing Christian (though I would say I don't like religion either) and I completely agree with you.

      February 28, 2012 at 1:20 pm |
    • Noxx

      Furthermore, I agree that you risk the consequences, but if the consequences are someone else doing something *illegal*, that person is responsible for their own actions as well, and should *also* suffer the consequences for their decision. If someone kills my child, I'm not allowed to kill theirs with no repercussion.

      February 28, 2012 at 1:26 pm |
  8. drgirl

    Saying provocative things is not a crime. Taking the bait and attacking someone is, but the government still has to prove its case. A government agent admonishing the victim gives the appearance of impropriety.

    February 28, 2012 at 1:15 pm |
    • Gop

      I agree you with 100%

      February 28, 2012 at 1:38 pm |
  9. Noxx

    So technically I'm allowed to assault Evangelical Christians because they make me mad protesting abortion and gay marriage. LET'S DO THIS!

    February 28, 2012 at 1:15 pm |
  10. Major Variola

    Mark Martin secretly fantasizes about sodomizing Mohommad.
    So, soon to be ex Judge, what are you going to do about it?

    February 28, 2012 at 1:14 pm |
  11. Mike Hipp

    We need to get that awful, hateful Kansas church group that pickets soldier's funerals in front of this judge, pronto!

    Now to be serious. The man marching in the parade has every right to say whatever he wants to say. The guy who attacked him should have not gotten off. Of course judge says not enough evidence..... odd that there weren't any witnesses to a parade.

    Would judge have said the same thing if it were it the other way around? Would he have let the atheist go and scolded the believer? I have to wonder.

    February 28, 2012 at 1:14 pm |
  12. UglyTruth

    Socially accepted insanity of religion, not good for humanity.
    We must be free to criticize this insanity of all religions to effect a change.

    February 28, 2012 at 1:13 pm |
  13. Knock Knock

    The scariest costume for most Christians to see on their doorstep Halloween night is a couple of children in suits holding a Watchtower & Awake... Run! Hide!!

    February 28, 2012 at 1:13 pm |
  14. blaqb0x

    Has the judge been checked for PTSD?

    February 28, 2012 at 1:12 pm |
    • Jim

      You mean ITSD 😉

      February 28, 2012 at 1:14 pm |
  15. Glenn

    I'm not sure about this Ernie Perce's motives but I actually think it would be good to desensitize people to making fun of Mohammed the way we are desensitized to people making fun of God/Jesus. Mohammed should be treated no different just because his believers are more violent when provoked. Everyone is allowed their soap box in this country. And no, there doesn't have to accountability. Free speech is.... FREE. The proper thing for this Muslim may have been to use his free speech rights to call Perce an idiot and tell him he's going to hell... etc.... not to choke him.

    February 28, 2012 at 1:11 pm |
    • Vance

      Good plan, let's focus our energy on desensitize...then once their desensitive to figures and speech, we can desensitize them to violence until the point were doing ANYTHING you want is acceptable. Forget common courtesy, people just need to learn not to be offended by anything.

      February 28, 2012 at 1:20 pm |
  16. Additional evidence

    Even more evidence a lot of people are not reading about is the police officer at the incident who confirmed assault. But, of course, the judge refused to listen because he did not give "an accurate account." How would the judge know? This was not a review of all the evidence, and the judge simply did not want the defendant to be punished.

    February 28, 2012 at 1:11 pm |
  17. Nudge

    Perce was a jerk,
    but it was within his rights as an American citizen.
    We are going down a bad road here.

    February 28, 2012 at 1:10 pm |
    • Bill Deacon

      Perce was a jerk.
      He got clobbered for it.
      Freedom of speech does not protect you from violence.
      Overtime, the courts will judge correctly.
      The attacker got away with it.
      Lesson to all jerks

      February 28, 2012 at 1:22 pm |
  18. chris craig

    Don't generalize about atheists because of this pathetic stunt. There are people in all beliefs who pull these childish insulting antics

    February 28, 2012 at 1:09 pm |
  19. Doc Vestibule

    A dear old friend of mine once did a free speech rant that eventually caused her to tear down her website and go into hiding due to the death threats sent her way!
    It started out like this:
    "Why is it that every conversation I have with somebody about free speech starts out like this: "I believe in free speech..." and ends up like this: "... but there are some things people just shouldn't be allowed to say!"?
    Now, sentence one and sentence two should, by all laws of physics, create a fluttering devouring void into which everything is sucked, when they are combined into sentence three: "I believe in free speech, but there are some things people just shouldn't be allowed to say!"
    It's a syntactical impossibility. A semantic impossibility. It's also completely indefensible.
    Time and again, people revolve around those two magical sentences, pretending to be liberal and open-minded. But they're secretly advocating thought control.
    No, you don't believe in free speech if you say that. You can't say you do, and then espouse opinions contrary to that. No walking around proud about your ethical and moral fibre. I can't make this more clear: you don't believe in free speech. Say it with me... "I don't believe in Free Speech." Say it with the capitals on: Free. Speech. Don't. Believe. In. It."

    "Freedom of speech is also a privacy issue: dictating how somebody's head should work is dangerous and repugnant. My point is this: get out of my head. Justifying one kind of something while banning the other is more than hypocritical, it's dangerous. That 'method' of justification is a fill-in-the-blanks form, and can be turned onto anything, from science class to se.x ed. to political criticism. There are no lines, only scales. When you argue for censorship that "harm was being done," I ask "so what did you do to stop it?" Not "how did you suppress the public's access to the evidence?" And when you argue that being exposed to something stops people acting a certain way, you can use any subject at all and the argument still works, in isolation:
    "If people couldn't see McDonald's ads, they'd stop eating at McDonald's."
    "If people didn't know about AIDS, they wouldn't get AIDS."
    "If people couldn't take pictures of beaches, nobody would want to go to the beach."
    "If people couldn't draw pictures of homeless people, nobody would be homeless."
    "If people weren't allowed to take video footage of war, there'd be no war."
    The worst part is, advocating absolutist free speech is the weaker position politically. Not only am I asking people to abandon assumed wisdom and tackle hard, ethical questions – something religion and TV has made obsolete – but I'm content to let the other side be wrong. In fact, that's my entire point. But they can't let me be right. While I can say "Fine, think that if you want," they will keep trying, actively and vehemently, to stop me from voicing my opinions. And often, they win."

    February 28, 2012 at 1:09 pm |
    • Super One

      Your right to free speech does not extend to yelling Fire in a crowded movie theatre. You are free to express your views provided they don't endanger others rights. That's why there are laws against hate mongers.

      February 28, 2012 at 1:19 pm |
    • Bill Deacon

      Your premise is wrong. "I believe in free speech but there are things which I should not say." is cosmically correct by your definitions. Not allowing other people to say things is not freedom. Self restraint is.

      February 28, 2012 at 1:25 pm |
    • Doc Vestibule

      In banning ideas, people tend to confuse action with thought. Actions have effects on others, thoughts can only affect one's self. (Unless one is Darth Vader). Other people's thoughts, when expressed to you, can not affect you unless you let them.
      Legislating away people's option to share their ideas about things doesn't actually do anything about the real harm that's being done by the people committing acts about which other people have or share ideas. People communicating their thoughts actually leads to more intelligent, reasoned actions: that means less impulsive, irrational and inhuman ones.
      For instance: in the US, bearing arms is a right. Shooting people is not. Why? When you're bearing arms, you can't be said to be intending anything. Nobody can guess what you think about when you're stroking your gun alone at night, and so far nobody has tried to make bad thoughts illegal if you own firearms. If you shoot someone, we arrest you, and still don't ask how often you sat at home cradling your gun before doing it. Because that doesn't matter: the sitting at home didn't get someone kilt. Shooting them did.

      If I hear something and go out and massacre Jews, whose fault is that? If we censor thought and discourse, a person can argue that the state was responsible, for 'letting' them make the wrong choice by forgetting to ban a topic from books and TV. Or by banning the wrong things, and leading people down paths of thought they 'never would have taken otherwise.' Really, it's MY fault if I go out and massacre Jews, nobody else's. Not my parents, not the government, not the Jews. Mine.
      People who advocate censorship simply don't want the public to have information. They fear the public might make the wrong choices, and it's easier to deny all access to any information contradicting the prevailing mythology. Simply, it's safer to coddle the infantile public until they're "old enough," than to explain why they shouldn't think that way.

      February 28, 2012 at 1:29 pm |
    • hippypoet

      i have often heard the "FIRE" in a theater as reasoning to why we "shouldn't" say certaint things even thou we have the right to...if placing others at risk of injury is the result then you are punished, if not, then you are well within your rights...the only real question is how does one know before hand the end result of his/her rant/yell annoucement?... other then that, i agree with every word Doc.

      February 28, 2012 at 1:36 pm |
  20. GHP

    Hmmmm...Ernie, it looks like hate speech to me. Why wasn't Ernie charged with a hate crime?

    February 28, 2012 at 1:09 pm |
    • Glenn

      Because Ernie didn't inspire anyone to commit a crime in his name.... etc. Nor was his speech a crime. The Muslim, however, DID commit a hate crime against an atheist for expressing his views...however assinine he was. WAKE THE HELL UP PEOPLE.

      February 28, 2012 at 1:16 pm |
    • closet atheist

      I know anything I say, as an atheist, will appear biased... but why exactly would Ernie be guilty of a hate crime? Immature and inflammatory, yes. Is it a hate crime when people protest a glbt parade with signs that say "god hates f@gs"..?? No. Is it disgusting and deplorable behavior? Yes. Just sayin'....

      February 28, 2012 at 1:26 pm |
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