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. Carl

    This is how it is also happening in other countries. No, they don't have "sharia law", but they use the sensitivity excuse to condemn free speech and make excuses for violent religious people.

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

      Call for the Jude's removal from bench>>>>>http ://florida-family.org/take_action_form. php?message=63

      February 28, 2012 at 1:32 pm |
    • DaEvin

      Call for the judges removal from bench>>>>>http ://florida-family.org/take_action_form. php?message=63^.

      February 28, 2012 at 1:36 pm |
  2. MashaSobaka

    Look, we can debate free speech all we want, but the bottom line is people need to learn to be responsible. The man was within his rights, but that does not mean he should have done it. Just because you CAN do something doesn't mean that you SHOULD. As for the alleged attack, there wasn't enough evidence for a conviction. I'm willing to bet that this guy was *hoping* for violence when he put on his little costume to prove a point. Too bad, bigot. Better luck next time.

    February 28, 2012 at 1:27 pm |
    • MarkinFL

      In the meanwhile the judge made his bias on the subject loud and clear and thus brings the whole ruling on evidence into question.

      February 28, 2012 at 1:51 pm |
  3. CuzzyLINY

    I wonder how Judge Martin would rule in a case involving the members of the Westboro Baptist Church if they were assaulted, instead of Perce. Would he rule against them, citing them as antagonists, and subject to any assaults that they provoke upon themselves even though they seem to be protected by every avenue of law? Would he dress the WBC down and intone them to use common sense during their protests? I wonder.

    February 28, 2012 at 1:27 pm |
    • Horus

      Precisely my thoughts. The courts have repeatedly upheld Westboro's rights to antagonize.

      February 28, 2012 at 1:31 pm |
    • Mike Hill

      He would rule that the First Amendment protects members of Westboro Baptist Church. It does not matter how horrible these phony Christians are, the are protected.

      February 28, 2012 at 1:34 pm |
    • DaEvin

      Call for the judges removal from bench>>>>>http ://florida-family.org/take_action_form. php?message=63^

      February 28, 2012 at 1:35 pm |
  4. david williams

    I'm no longer sure who are the more obnoxious, the Muslims or the atheists, but this time I have to cheer the Muslim. Too bad there was not a singe courageous Christian at the parade to help his Muslim brother deal with the atheist hate monger.

    February 28, 2012 at 1:27 pm |
    • BRC

      One man wore a costume.

      Another man allegedly committed a violent physical act.

      And you believe the one that WORE A COSTUME is a hatemonger? That, is one of the reasons why so many atheists have trouble holding respectful discourse with people of faith. We cannot understand the view.

      February 28, 2012 at 1:31 pm |
    • Noxx

      I agree with with BRC here. The christians who hold "God hates f@gs" signs are definitely not hatemongers. No hatred towards them. Only love and respect. They only choose to use the hurtful HATEFUL slang to POLITELY say "hey guys, you're going to hell". Love and Peace.

      February 28, 2012 at 1:34 pm |
  5. Greg s

    Well this was orchestrated in the hopes of upsetting someone either Christian or Muslim so this Atheist could further his cause. He had a Zombie Pope and a Zombie Mohammad. He got exactly what he was looking for. A confrontation!

    February 28, 2012 at 1:27 pm |
  6. Rsm

    If it were an atheist beating a Christian or Muslim boy down in the middle of the street, this case would be all we got to hear about for weeks.

    February 28, 2012 at 1:27 pm |
  7. JustPlainJoe

    Judges are not immune to ignorance and prejudice. He was wrong and should have the courage to admit it.

    February 28, 2012 at 1:27 pm |
  8. justathought

    RELIGION IS LIKE A PENIS...It's fine to have one..it is fine to be proud of it...BUT Please don't whip it out in public and start waving it around...and PLEASE don't try to force it down my childrens's throats!

    February 28, 2012 at 1:26 pm |
    • Greg s

      I truly Thought Atheists hated children, or is it just inconvenient children you care nothing about. You all stand behind the right to kill them willy nilly so defiantly!!!

      February 28, 2012 at 1:36 pm |
  9. Enviroreal

    We have to stop being so touchy about religion. What the guy did in mocking Mohammed was not very nice to say the least, but we are constantly being bombarded with christian garbage I can understand an Atheist being upset. We need to enforce our laws of sepaation of church and State. I'm sick of religious wackos who think they know everything and because I don't believe what they do they think I'm crazy and its their job to convince me they are right Just look at the republican candidates claiming that christianity should rule. Our forefathers didn't believe their garbage and tried to prevent the US from becoming a theocratic country. We must stop them!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

    February 28, 2012 at 1:26 pm |
  10. CS

    This judge needs to be disbarred

    February 28, 2012 at 1:26 pm |
    • denver2

      At the very least, he needs to be forced to read the decision in Brandenburg v. Ohio while a smarter judge watches him do it.

      February 28, 2012 at 1:28 pm |
  11. Your god blows donkeys

    Free speech is free speech, no matter how "offensive". If we don't protect "unpopular" speech we have no freedom at all.

    February 28, 2012 at 1:25 pm |
    • Enough

      You're a ph uc king dbag. You're right.....freedom feels great!

      February 28, 2012 at 1:44 pm |
  12. Reality

    An easy solution to the problem (too bad the judge did not suggest it):

    -from the studies of Armstrong, Rushdie, Hirsi Ali, Richardson and Bayhaqi–

    The Five Steps To Deprogram 1400 Years of Islamic Myths:
    ( –The Steps take less than two minutes to finish- simply amazing, two minutes to bring peace and rationality to over one billion lost souls- Priceless!!!)

    Are you ready?

    Using "The 77 Branches of Islamic "faith" a collection compiled by Imam Bayhaqi as a starting point. In it, he explains the essential virtues that reflect true "faith" (iman) through related Qur’anic verses and Prophetic sayings." i.e. a nice summary of the Koran and Islamic beliefs.

    The First Five of the 77 Branches:

    "1. Belief in Allah"

    aka as God, Yahweh, Zeus, Jehovah, Mother Nature, etc. should be added to your self-cleansing neurons.

    "2. To believe that everything other than Allah was non-existent. Thereafter, Allah Most High created these things and subsequently they came into existence."

    Evolution and the Big Bang or the "Gi-b G-nab" (when the universe starts to recycle) are more plausible and the "akas" for Allah should be included if you continue to be a "crea-tionist".

    "3. To believe in the existence of angels."

    A major item for neuron cleansing. Angels/de-vils are the mythical creations of ancient civilizations, e.g. Hitt-ites, to explain/define natural events, contacts with their gods, big birds, sudden winds, protectors during the dark nights, etc. No "pretty/ug-ly wingy thingies" ever visited or talked to Mohammed, Jesus, Mary or Joseph or Joe Smith. Today we would classify angels as f–airies and "tin–ker be-lls". Modern de-vils are classified as the de-mons of the de-mented.

    "4. To believe that all the heavenly books that were sent to the different prophets are true. However, apart from the Quran, all other books are not valid anymore."

    Another major item to delete. There are no books written in the spirit state of Heaven (if there is one) just as there are no angels to write/publish/distribute them. The Koran, OT, NT etc. are simply books written by humans for humans.

    Prophets were invented by ancient scribes typically to keep the un-educated masses in line. Today we call them for-tune tellers.

    Prophecies are also invali-dated by the natural/God/Allah gifts of Free Will and Future.

    "5. To believe that all the prophets are true. However, we are commanded to follow the Prophet Muhammad (peace and blessings be upon him)
    Mohammed spent thirty days "fasting" (the Ramadan legend) in a hot cave before his first contact with Allah aka God etc. via a "pretty wingy thingy". Common sense demands a neuron deletion of #5. #5 is also the major source of Islamic vi-olence i.e. turning Mohammed's "fast, hunger-driven" hallu-cinations into horrible reality for unbelievers.

    Walk these Five Steps and we guarantee a complete recovery from your Islamic ways!!!!

    Unfortunately, there are not many Muslim commentators/readers on this blog so the "two-minute" cure is not getting to those who need it. If you have a Muslim friend, send him a copy and help save the world.

    Analogous steps are available at your request for deprogramming the myths of Christianity, Judaism, Buddhism, Hinduism and Paganism..

    February 28, 2012 at 1:24 pm |
    • Greg s

      Re-writing history can be so much fun!

      February 28, 2012 at 1:40 pm |
    • Enough


      This jack- has been cutting and pasting this drivel for years. No one actually reads it, but it keeps him busy in his mom's basement. From now on just scroll.......

      February 28, 2012 at 1:46 pm |
    • Reality

      As the koranic/immanic- driven terror and horror of Islam continues

      The Muslim Conquest of India – 11th to 18th century

      ■"The likely death toll is somewhere between 2 million and 80 million. The geometric mean of those two limits is 12.7 million. "

      and the 19 million killed in the Mideast Slave Trade 7C-19C by Muslims.

      and more recently

      1a) 179 killed in Mumbai/Bombay, 290 injured

      1b) Assassination of Benazir Bhutto and Theo Van Gogh

      2) 9/11, 3000 mostly US citizens, 1000’s injured

      3) The 24/7 Sunni-Shiite centuries-old blood feud currently being carried out in Iraq, US troops killed in action, 3,480 and 928 in non combat roles. 102,522 – 112,049 Iraqi civilians killed as of 9/16/2011/, mostly due to suicide bombers, land mines and bombs of various types, http://www.iraqbodycount.org/ and http://www.defenselink.mil/news/casualty.pdf

      4) Kenya- In Nairobi, about 212 people were killed and an estimated 4000 injured; in Dar es Salaam, the attack killed at least 11 and wounded 85.[2]

      5) Bali-in 2002-killing 202 people, 164 of whom were foreign nationals, and 38 Indonesian citizens. A further 209 people were injured.

      6) Bali in 2005- Twenty people were killed, and 129 people were injured by three bombers who killed themselves in the attacks.

      7) Spain in 2004- killing 191 people and wounding 2,050.

      8. UK in 2005- The bombings killed 52 commuters and the four radical Islamic suicide bombers, injured 700.

      9) The execution of an eloping couple in Afghanistan on 04/15/2009 by the Taliban.

      10) – Afghanistan: US troops 1,385 killed in action, 273 killed in non-combat situations as of 09/15/2011. Over 40,000 Afghan civilians killed due to the dark-age, koranic-driven Taliban acts of horror

      11) The killing of 13 citizen soldiers at Ft. Hood by a follower of the koran.

      12) 38 Russian citizens killed on March 29, 2010 by Muslim women suicide bombers.

      13) The May 28, 2010 attack on a Islamic religious minority in Pakistan, which have left 98 dead,

      14) Lockerbie is known internationally as the site where, on 21 December 1988, the wreckage of Pan Am Flight 103 crashed as a result of a terrorist bomb. In the United Kingdom the event is referred to as the Lockerbie disaster, the Lockerbie bombing, or simply Lockerbie. Eleven townspeople were killed in Sherwood Crescent, where the plane's wings and fuel tanks plummeted in a fiery explosion, destroying several houses and leaving a huge crater, with debris causing damage to a number of buildings nearby. The 270 fatalities (259 on the plane, 11 in Lockerbie) were citizens of 21 nations.

      15 The daily suicide and/or roadside and/or mosque bombings in the terror world of Islam.

      16) Bombs sent from Yemen by followers of the koran which fortunately were discovered before the bombs were detonated.

      17) The killing of 58 Christians in a Catholic church in one of the latest acts of horror and terror in Iraq.

      18) Moscow airport suicide bombing: 35 dead, 130 injured. January 25, 2011.

      19) A Pakistani minister, who had said he was getting death threats because of his stance against the country's controversial blasphemy law, was shot and killed Wednesday, 3/2/2011

      20) two American troops killed in Germany by a recently radicalized Muslim, 3/3/2011

      21) the kidnapping and apparent killing of a follower of Zoraster in the dark world of Islamic Pakistan.

      22) Shariatpur, Bangladesh (CNN 3/30/2011) - Hena Akhter's last words to her mother proclaimed her innocence. But it was too late to save the 14-year-old girl. Her fellow villagers in Bangladesh's Shariatpur district had already passed harsh judgment on her. Guilty, they said, of having an affair with a married man. The imam from the local mosque ordered the fatwa, or religious ruling, and the punishment: 101 lashes delivered swiftly, deliberately in public. Hena dropped after 70 and died a week later.

      23) "October 4, 2011, 100 die as a truck loaded with drums of fuel exploded Tuesday at the gate of compound housing several government ministries on a busy Mogadishu street. It was the deadliest single bombing carried out by the al Qaeda-linked al-Shabab group in Somalia since their insurgency began. "

      February 28, 2012 at 3:30 pm |
  13. Chris

    The article doesn't give the whole story, not by a long shot, and makes the judge's decision seem reasonable at one level. However, there were MULTIPLE witnesses, including a police officer to whom the Muslim confessed on the spot, saying something like "yes, I attacked him". At that point, motives go out the window. One man was (maybe) a little rude; the other broke the law. Period.

    February 28, 2012 at 1:23 pm |
  14. Joe

    The video is inconclusive and there were no witnesses. The case should not have been brought by the attorney's office. The claim by the "victim" hey he's attacking me on the video is not compelling enough to convict the "suspect" of assualt or harrassment. The judge's comments are his opinion, that is exactly the problem with US Justice. to much opinion is used by judges and not enough law and common sense. In this case the "suspect" should have been dressed down by the judge just as much as the "victim." both were wrong. the "victim" for dressing and acting in an offensive way towards the "suspect" was wrong for his physical response to an opinion. If i were on the bench and this was brought before me, they both would have received a good tongue lashing, as well as their lawyers for letting it get that far. Common sense is definately dead in this country, and here is a prime example of it.

    To the folks who said he was offensive to the religion and asked whaty if it had been a flag or other "american" symbol. When was the last time a catholic lobbed a hand grenade into a crowded location because someone burned a book? When was the last time a US citizen fired a gun into a crowd burning an american flag. You can not compare the two as the repsonses between are vastly different.

    February 28, 2012 at 1:22 pm |
    • Chris Lee

      When was the last time a Christian killed a doctor for performing perfectly legal abortions? Oh yeh. Not that long ago.

      February 28, 2012 at 1:27 pm |
    • Phineas

      Joe, I'm thankful you chose a profession other than law. Very few ever question their own motives, their own version of "common sense." But we DO have laws in this country, and legal principles that they rest upon. While "freedom of speech" is anything but absolute, the only speech that needs protection is that which others find offensive. In your hypothetical adjudication of the case, your tongue-lashing is just as wrong as those whom you condemn for their actions.

      People like you should stop deluding themselves as advocating free speech. Clearly you do not. And incidentally, your position IS protected speech, too.

      February 28, 2012 at 1:40 pm |
  15. Dave

    As an atheist, I don't agree with the choice to mock either Mohammed or the Pope, however, I defend their right to free speech. Myself, I prefer to live and let live, don't push your beliefs on me, and I won't push mine on you. Because of that, I agree with the judge in principle that better judgement could have been used, but this wasn't a free speech case, it was an assault case. He would have been better off simply dismissing it based on lack of evidence and leaving it at that.

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

      Well said.

      February 28, 2012 at 1:26 pm |
  16. George Washington

    If Ernie had worn a Chuck Noll or Lynn Swan costume like that, he wouldn't have made it through the parade.

    February 28, 2012 at 1:21 pm |
  17. asdf

    CNN, why are you so bad at journalism?

    This judge said OUT LOUD, ON TAPE that he was a muslim. He spent minutes talking about the virtues of Islam. Here's the recording...


    See CNN? that's what I call "investigating". It took less than 2 minutes to find that clip, which the author of this article obviously never even sought.

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

      The judge never said he was a Muslim. It is a bad recording, so I'll give you the benefit of the doubt and assume you misheard what was said as I played it a couple of times to try and understand it better. It was two statements that either the judge ran together, or the recording is just that bad (or tampered with?) to make them run together. Paraphrasing, the judge was telling Mr. Perce that it was offensive to a Muslim, and that he, personally, found it offensive as well. As close as I can understand, it was something like this, "They find it very, very offensive of a Muslim. I find it very offensive." While not the best grammar, it's hardly stating that he is a Muslim.

      February 28, 2012 at 1:37 pm |
  18. Al

    Perhaps this judge was coerced? Maybe he got a phone call or two?

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

      We cannot allow this judge to invoke his position and this case into law. We need to call for his removal for his severe lack of judgment when he is in fact the judge. Freedom of speech is simple to understand and assault is assault. Go to this site, remove the spaces between the forwards slashes and PHP. Call for the judges removal http:// florida-family.org/take_action_form. php?message=63

      February 28, 2012 at 1:27 pm |
  19. oh brother!


    February 28, 2012 at 1:20 pm |
    • denver2

      Religions aren't offensive to me. They mostly just strike me as poorly-considered philosophies that use dogma to overcome their lack of coherence.

      Some religious people, on the other hand....

      February 28, 2012 at 1:26 pm |
    • Greg s

      believe me your just as offensive to us buddy!!!

      February 28, 2012 at 1:43 pm |
    • not a phony patriot

      Speak for yourself. Freedom in this country means just that. Freedom to have your own beliefs. Don't push your agenda on anyone. Freedom!

      February 28, 2012 at 1:50 pm |
    • closet atheist

      @ greg s ~ Your terrible grammar is offensive, as well. Morons like you only make believers look more stupid. If you are too ignorant for basic english, then clearly you are incapable of the more critical thought necessary to evaluate the merits of atheism v religious dogmas.

      February 28, 2012 at 4:40 pm |
  20. Satros

    That wasn't free speech. Remember that old saying? You've the right to say whatever you want but you can't stand up in a theater and shout 'fire!'. What this man was basically doing was walking along shouting 'fire'. He wasn't making a political point, he wasn't making a religious point. He was deliberately provoking and mocking. It only gets as much attention as it does because it's an athiest vs a Muslim. If it were a white person vs a black person, this would be a whooooooole different story.

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

      Yes, it would be very different... black person would be given a sentence of 20 to life... 🙂

      February 28, 2012 at 1:25 pm |
    • steeve-o

      Satros is right. If this guy thought that verybody would think his stunt was funny, he's an idiot. If he thought nobody would have a problem with what he was doing, he's a huge idiot.

      February 28, 2012 at 1:27 pm |
    • BRC

      That is an absurd comparison. Shouting fire in a theater is illegal because it can cause a stampede of paniced people that will almost certainly injure dpeople. That is not what was happening here. The victim was wearing a costume that expressed a joke (an extension of a personal opinion or belief), surrounded by like minded individuals. He was part of a group of parading atheists. They weren't calling for violence, they weren't causing panic, they were peacefully expressing themselves. Reacting with violence is ignorant, unnecessary, and illegal.

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

      Ridiculous. The 1st Amendment is there so that people CAN talk about things others find offensive, not just echo the popular line. Note that there was a Zombie Pope there too... no one attacked him. I'm sure it irritated/offended some Catholics, but they had the sense to ignore it, and did not see it as permission to attack him.

      February 28, 2012 at 1:31 pm |
    • Greg s

      I agree, No different then me dressing up as the KKK and walking in a Mandi Gra Parade in New Orleans.

      February 28, 2012 at 1:54 pm |
    • Greg s

      But should I be surprised when someone hits me in the head with a pipe!

      February 28, 2012 at 1:56 pm |
    • closet atheist

      @ greg s ~ ...and when said person hits you in the head with the pipe, they will be arrested and prosecuted. We can only hope, however, that the judge just lets it slide due to the fact that you're an idiot and the world will very likely be better off without you.

      February 28, 2012 at 4:43 pm |
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About this blog

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.