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. poocherjm

    So by this ruling I guess it's OK to beat the crap out of the Phelps when they protest funerals? I can't wait!!!

    February 28, 2012 at 2:04 pm |
  2. Dan

    Does anybody actually read the articles? This is the media trying to make a huge deal about a case where the prosecutor had no evidence besides his own testimony. It was one guys word against another, that never holds up in court. Whatever else the judge said during the trial was his opinion and had nothing to do with the decision. So stop blaming the judge for doing his job and ruling in accordance with the law, and playing into the media BS that tries to make it a first amendment issue.

    February 28, 2012 at 2:03 pm |
    • reason

      There were witnesses as seen in the video and the attacker even admitted assaulting him, to a police officer no less.
      This Judge Martin is a disgrace.

      February 28, 2012 at 2:06 pm |
    • Horus

      Mr. Talaag himself admitted to an officer that he grabbed Perce. Isn't that the man's word against his own word?

      February 28, 2012 at 2:08 pm |
    • JudgeDB

      The judge was right in his decision due to a lack of evidence. However, his comments towards Perce were unnecessary and dismissive.

      February 28, 2012 at 2:11 pm |
  3. murray

    """Nothing as nefarious as what everyone's thinking, that I'm a Muslim or I'm biased. I'm actually a Lutheran."""
    The Judge is lying when he says that,,,here is the audio of the proceedings where Judge Martin clearly states,,
    " I am a Muslim, I find it offensive""

    February 28, 2012 at 2:03 pm |
  4. coder

    who was offended – the god, the self proclaimed prophet, or the guy in the street

    secondly – that judge is the perfect example of US government – lazy, pathetic, and willing to apply religion where it suits him

    February 28, 2012 at 2:01 pm |
  5. liz

    The Judge is way off base the especially in his assumptions about the forefathers intent. The First Amendment was written for just this situation and I hope Mr. Perce appeals this decision.

    February 28, 2012 at 2:00 pm |
  6. Strange1-2

    Freedom of speech means the right to yell "theatre in a crowded fire."

    February 28, 2012 at 2:00 pm |
  7. Calcommuter

    So it's ok for a Muslim to attack a protester with witnesses watching, and it's also ok to picket a veteran's funeral. A Presidential candidate preaches that a woman cannot use contraception, get an amneocentesis or who can love who. Gas will be $5 everywhere soon. Maybe there is something to December 21st.

    February 28, 2012 at 1:59 pm |
  8. Major Variola

    My name is Julie A Elbayoumy. I was born in 1960. I currently live in West Farmington, Ohio. Before that, I lived in Harrisburg, PA from 2007 to 2009. Before that, I lived in Harrisburg, PA from 2007 to 2007. I am related to Rasha Elnaggar, I am also related to Cody Pugh, I am also related to Matthew Pugh, I am also related to Marvin Pugh, who is 53 years old and lives in Warren, OH. I am also related to Talaat Bayomy,

    February 28, 2012 at 1:59 pm |
  9. GodsPeople

    This judge should be disbarred and beaten to within an inch of his life, then he and the perp should be deported to Libya.

    February 28, 2012 at 1:59 pm |
  10. Horus

    I guess this judge didn't get the whole reason why lady justice wears a blindfold.....

    February 28, 2012 at 1:58 pm |
    • reason

      This Judge Martin is a disgrace.

      February 28, 2012 at 2:01 pm |
  11. BBCue

    Excellent. So what the Judge effectively did was make a precedent that when stupid people do stupid things, you should be able to assault them without consequences! Woo hoo, time to assault our political leaders for being stupid.

    February 28, 2012 at 1:57 pm |
    • jim atmadison

      No, he said that if you're accused if something and there's no evidence, he won't convict you.

      February 28, 2012 at 2:00 pm |
    • helicohunter

      Not to defend the assault, but there ARE limits to freedom of speech. If you cry "fire" in a crowded theater and someone gets trampled, you could be held liable (unless, of course, there is a fire). I'm an atheist, but I believe that others should be able to practice their chosen religion. The costume and sign represented an extreme provocation, and he knew it. A little tolerance and courtesy goes a long way.

      February 28, 2012 at 2:12 pm |
  12. jim atmadison

    The righties (including the usually honest Jonathan Turley) have been lying this up pretty heavily.

    The reason for dismissal was lack of evidence.

    The lecture was unwarranted, but not evidence of 'Sharia Law' as some have claimed.

    A Lutheran (not Muslim which is what the rightwing media has been claiming) judge unnecessarily told a guy to be more careful when mocking somebody's religion. That may be good advice, but it doesn't belong in a courtroom.

    February 28, 2012 at 1:57 pm |
    • Horus

      A sworn LE Officer provided a statement that Mr. Talaag admitted to grabbing Perce. Normally an officer's statement is considered valid unless proven false; yet this judge ignored the officer. The judge clearly is sending a message that he felt the guy got what he deserved, and the heck with the law.

      February 28, 2012 at 2:02 pm |
  13. Live Simple

    No witnesses, no evidence either way, one's word against the other. I say the judge should have sent both of their butts to jail for disturbing the peace that evidently they both agreed on when they went to court. Wouldn't that be justice to both sides of the story?

    February 28, 2012 at 1:57 pm |
    • reason

      There were witnesses as seen in the video and the attacker even admitted assaulting him, to a police officer no less. This Judge Martin is a disgrace.

      February 28, 2012 at 2:02 pm |
  14. Dan

    I am old enough to remember when Iran raided our embassy and took our embassy personnel hostage. At that time, Iranian students inside the U.S. were protesting our country and held public rallies demonizing the U.S. Citizens wanted to kick their asses, but because these people who weren't even citizens were exercising their "First amendment rights" they received police protection as they did this. How come one judge gives Iranian nationals the right to hold a public ralley to insult the U.S. with police protection in our country, but this judge can't recognize the right of one atheist to hold a sign and were a costume without being physically assaulted?

    February 28, 2012 at 1:56 pm |
    • bert f.

      Try reading "Live Simple" comments listed right before your question for your answer.

      February 28, 2012 at 2:14 pm |
    • Dana

      Because it could have been perceived as ridicule. Anyway, I think the judge was wrong, giving bad precedence. Really bad.

      February 28, 2012 at 2:33 pm |
  15. bigDizzle

    I don't support the fact that he dressed up as Mohammed. I also don't support burning copies of the Quran but giving any Muslim (either an individual Muslim or a group of them) any justification or precedent in attacking someone for mocking them or their religion is disgusting. Not simply unjust or politically incorrect – but flat out disgusting.

    Christians deal with their fare share of ribbings (watch the movie Dogma if you don't believe me). So this is at least one case where I can honestly say we aren't being hypocrites.

    I really really hope this gets overturned.

    February 28, 2012 at 1:56 pm |
  16. Iqbal Khan

    watch this expert....


    February 28, 2012 at 1:55 pm |
  17. HeIsGod

    No wonder Atheist come on every News Network to insult those of faith.....they better not EVER do something like this to anyone or else, this will happen to them with well deserved!!!!!!!!!!!!

    February 28, 2012 at 1:54 pm |
    • Mike

      It's easy to tell by your poor sentence structure and threatening tone that you're a theist, thanks for reinforcing the stereotype.

      February 28, 2012 at 1:57 pm |
    • Scott

      Really? What did he do? Are you still so ruled by your inner child that you can't turn the other cheek?
      It's embarrassing to see people like you post, you no doubt proclaim your belief to anyone who will listen, yet you have no idea what those beliefs mean....

      February 28, 2012 at 1:59 pm |
    • NightCelt

      Mike – It's better than that. HeIsGod a/k/a Chaparrita and a host of other troll names is really a Mexican who also belongs to the Watchtower cult. But who disguises herself as a non-denominational Christian who "doesn't follow religion." She also – (trying not to laugh here so as not to screw up the typing) – refers to atheism as a "religion."

      Does that mixed bag of insanity put things in better perspective for you?

      February 28, 2012 at 2:03 pm |
  18. Andy Daniel

    What on earth does CNN mean by "self-proclaimed aethiest"?

    I guess it's true – we have freedom of religion, but much less freedom from religion. The assumption is that you are "born" Christian, or Jewish, or Muslim and so you must be "something". Is CNN asking him to find an "aetheist church" to verify that he is truly a non-believer? Until then, I guess he is merely claiming to be aethiest.

    February 28, 2012 at 1:54 pm |
  19. wakeup333

    Quoting Muslim blasphemy laws (making criticism of Islam punishable by death) has NO place in American courts. While describing Sharia, Martin waved a Quran at Perce. Martin said, "with rights come responsibilities" and "We need to start policing up our own actions, using common sense, in how we deal with others." In other words, don't criticize Islam, or Muslims will attack you. And it will be YOUR fault!!

    No, Judge Martin! It will be MUSLIMS' fault!! If Muslims move here, they must learn AMERICAN culture, which includes the right to dislike Muhammad and Islam and to shout that dislike as loud as you want. That's what freedom of speech means.

    February 28, 2012 at 1:54 pm |
    • fintastic


      February 28, 2012 at 2:48 pm |
  20. MN

    It is obvious from many of these posts that the problem we have as Americans is those who claim no affiliation with responsibility. "Religious" people are connected to their God and their denominations. Others wander around recklessly hurting others and crying foul when it backfires. Perhaps we should follow the advice of our parents, "If we have nothing nice to say, shut up..." I am so proud of this judge for upholding the law and ruling on the evidence provided. Furthermore, he said something that needed to be said to one who needed to hear it. Shame on this atheist for antagonizing others at an event meant for celebration...disgusting.

    February 28, 2012 at 1:53 pm |
    • The Judge is a Muslim?!

      Um, am I the only one who finds it hysterically ironic that this person says we should listen to our parents "If you don't have anything nice to say, shut up..." surrounded by this judgemental and mean-spirited post? You should listen to your parents MN. and "shut up..."

      February 28, 2012 at 1:57 pm |
    • Larry

      Your the idiot ! These religous fanatics have no tolerance that does not agree with them. It is their way or you die infidel. But it is okay for Muslims to burn American flags and blow up our buildings in the name of Alaha.

      February 28, 2012 at 2:01 pm |
    • MarcTTF

      I’m offended by your comments, so by your logic, that gives me the right to assault you.

      February 28, 2012 at 2:02 pm |
    • Glenn

      Wrong MN! What if the next thing that this Muslim takes offense to is a woman walking down the street with her face exposed? What if he is offended by your wearing a cross? It doesn't matter if the display is antagonist. Such displays are protected speech and to physically retaliate against the bearer is NOT protected.

      February 28, 2012 at 2:09 pm |
    • Gregg London

      "Shame on this atheist for antagonizing others at an event meant for celebration"...would you hold the same position for the Palestinians who protested against the Israelis in Florida, whose signs read: "Build Bigger Ovens"? The problem is NOT "antagonistic behavior", but rather a heightened sensitivity on the part of the Nation of Islam (Muslims specifically). No incidents of Jews attacking the Palestinians were reported (in Florida), no Catholics attacked the "Zombie Pope" in the Atheist Parade, and even Christians who take considerable offense to the message of the Westboro Baptist Church (the group that protests at Military Funerals) have not "attacked". Put simply, this is YET another example of victimization based on political correctness run amok.

      February 28, 2012 at 2:12 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.