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. JC

    Wait a minute. We should not speak our minds, up to and including our beliefs, or disbelief, if they offend someone else? Is that not EXACTLY what the first amendment is there to protect? This is not a case of someone shouting out "fire" in a crowded theater. This is a judge who is clearly more concerned with his own personal safety than in executing the duties of his office. I'm really not interested in who was at fault here, because it's petty and unimportant. At issue are the ramifications of this line of reasoning. Isn't the reason behind the First Amendment based on Voltaire? " I do not agree with what you have to say, but I'll defend to the death your right to say it." Are we now saying that political correctness is more important than freedom? Anyone read 451? Should we roll out the hound and change a few lines of our national anthem "... land of the PC, and the home of the safe!"

    February 28, 2012 at 2:30 pm |
    • Johnny

      The case was dismissed because of a lack of evidence.

      The judge attempting to bring a grown man to task for publicly being a nuisance was, I think, meant to decrease the odds of him being the target of future assaults. Being a jerk simply because you can do so legally is at best juvenile, and certainly not an excuse.

      February 28, 2012 at 2:35 pm |
    • saopaco

      There is a peti tion on change. org to get Mark Martin Impeached.
      Search for "Help stop Sharia law from being used in US Courts" without the "" to get to it. I can'y get the link to post here. Thanks!

      February 28, 2012 at 2:36 pm |
    • JC

      As I said, I don't care much about the case, because it was petty, and no different than any other bar room dispute. What I do not like, what I take issue with, is the not-to-subtle suggestion by the judge that people engaging in their first amendment right to be jerks, should not be protected under the law. Suggesting that a legal action should not be defended, simply because it is not PC, is a growing and disgusting problem in this country. You might as well haul off and say "Sure, you have rights, but don't count on us to defend them."

      February 28, 2012 at 2:40 pm |
  2. Chris2 not Chris 1

    Im different than that first Chris lol

    February 28, 2012 at 2:30 pm |
  3. chuckmartel

    Muzzies have got to go, along with stupid judges like this. Now they can openly assault people they don't agree with and get away with it. Remember, they have already censored the South Park cartoon show and threaten to kill comics they don't lije. Not much on humor these muzzies. I hate them even without the terrorism.

    February 28, 2012 at 2:29 pm |
  4. Bob

    The judge decided that the Atheist's actions were fighting words. You can't yell "fire" in a crowded theater. You can't wear a ski mask into a bank. And, now, you can't dress up like Mohammed for the purpose of inciting violence.

    February 28, 2012 at 2:29 pm |
    • Stephanie

      There's lots of things that offend Muslims...how far ya willing to go?

      February 28, 2012 at 2:33 pm |
    • ChuckMurph

      well said.

      February 28, 2012 at 2:34 pm |
    • Bob

      Let me say that I disagree with the judgement and it's for the reason you said Stephanie. Replace assault with killed. Do we have the same logical conclusion? No. I completely agree with you, Stephanie. It's not bright to use "religious freedom" to justify breaking the law.

      February 28, 2012 at 2:36 pm |
    • JC

      And what if the man had been a Christian protesting Islam in general? Had the man in question been mocking Hitler, would the judge have ruled in favor of neo-nazi's should they have happened to be offended? Furthermore, consider this: why do we dress up in hideous costumes on Halloween? To mock our fears; to repudiate and reduce them. Like it or not, a great many Americans have good, solid reasons to fear Islam. Nor was Islam singled out in this instance; Christianity also got a mocking by the portrayal of the Pope. Given the scandals of the Catholic Church, I'd say they've earned it. The whole thing was clearly parody. I'd be particularly careful what speech I chose to sanction, were I you; the mouth you stop might be your own.

      February 28, 2012 at 2:54 pm |
  5. Salero 21

    Nightcelt, I think your Thought Process is being Affected by the Alignment of the Moon with Venus.

    February 28, 2012 at 2:28 pm |
    • NightCelt

      It's a shame that you don't know when to use capital letters. Perhaps it's the result of your own moon in close proximity with your mouth, whereby you are essentially talking out of you a–.

      February 28, 2012 at 2:30 pm |
    • mb2010a

      Or Ur Anus...

      February 28, 2012 at 2:33 pm |
    • HeIsGod


      February 28, 2012 at 3:40 pm |
  6. GodsPeople

    Amendment 1 does not give a muzzie the right to assault someone. The muzzie and the muzzie judge should both be in prison as we speak. One for corruption the other for assault.

    February 28, 2012 at 2:27 pm |
  7. Fair Taxes

    The Westboro Baptist Church can protest at a soldier's funeral, but they can't insult Mohammed? That's not the way I read the Supreme Court's decision.

    February 28, 2012 at 2:26 pm |
    • NightCelt

      Thank you. Not only that, but this incident took place at a frickin' parade – a phenomenon known for its freedom of speech and public demonstration. Westboro chooses to demonstrate at a site of greater sensitivity, the funeral.

      February 28, 2012 at 2:28 pm |
  8. Eric

    Mohammed fornicates with pigs.

    February 28, 2012 at 2:25 pm |
  9. JudgeIsRight

    I dress up like a Christian each day and no one criticizes me for it.

    February 28, 2012 at 2:25 pm |
    • mb2010a

      Really? I dress up like an atheist every day and nobody says anything about it to me either...

      February 28, 2012 at 2:36 pm |
  10. Thrilla

    This is a crock. If there was insufficient evidence to prosecute the Muslim, then that is sound. But to make the statements this judge made to the alleged victim is troubling indeed. He DOES have a right to protest Islam–as does ANYbody in this country vis-a-vis ANY religion. I am sick and tired of people defending Muslims who react violently to insults to their religion by placing the blame on the victims of such violence. My response to Muslims–and ALL others of ANY kind of faith–is this: if your faith cannot withstand insult or criticism, then you might consider questioning said faith. There are a growing number of us out there that simply refuse to let you hide behind political correctness while continuing to aid the proliferation of delusions that are literally killing us all.

    February 28, 2012 at 2:25 pm |
    • reason

      Well said!

      February 28, 2012 at 2:28 pm |
    • Elizabeth

      I completely agree, this judge's ruling is equal to allowing a KKK member to assault a person in a civil rights march and letting the KKK member off while punishing the civil rights marcher or allowing a man to beat a woman marching for the right for women to vote and only punishing the woman. Had this been a Christian assaulting an atheist, the outcome would have been very different. Our judicial system and our government should not be able to pick and choose which groups they wish to protect the rights of and which are allowed to be mocked or mistreated. Part of the basis of this country is that what applies to one applies to all, no favoritism or discrimination.

      February 28, 2012 at 2:40 pm |
  11. JudgeIsRight

    Freedom of speech is protected by U.S. Const. amend. I

    It is an unalienable right in the United States and you all know that. Plaintiff has no case, here.

    February 28, 2012 at 2:23 pm |
    • BRC

      I'm confused, you agree freedom of speech is absolute, but you think the Judge is right?

      February 28, 2012 at 2:28 pm |
  12. CalmDog

    The First Amentment states in part,
    "Congress shall make no law ... abridging the freedom of speech..."
    The First Amendment is a restraint of government, not a permission to say any d@mn thing you want whenever it suits you. There's a difference. People DO have the right to be A-h*les, but at their own risk. Personally, I'm not religious, but this guy was a jerk going in.

    February 28, 2012 at 2:23 pm |
    • momoya

      So violence against jerks is okay? Determining who is a "jerk" is a person's private opinion. If somebody thinks you're a jerk, can they punch you with no repercussions?

      February 28, 2012 at 2:25 pm |
    • CalmDog

      @momoya I didn't say that. I said that this is not a free speech issue protected by the First Amendment. The First
      Amendment says that GOVERNMENT can't stop you from expressing yourself. It doesn't say that you can do whatever you like and not expect consequences. Rights come with obligations. This guy was a juvenile idiot.

      February 28, 2012 at 2:33 pm |
    • Dave Bradshaw

      Mohammed was a pedophile who married a nine year old girl.
      Although the mother of Jesus was thirteen when she married Joseph, an eighty year old man. This would today be a crime in US, but not in Saudi Arabia.

      February 28, 2012 at 3:32 pm |
  13. reason

    There were witnesses as seen in the video, it was a parade! The attacker admitted assaulting him, to a police officer! Martin is biased towards religion and he should be ashamed of this abortion of justice. The judge, actually called the VICTIM a dufus. Martin is a disgrace.

    Atheists are the most pursecuted group in America.

    February 28, 2012 at 2:23 pm |
  14. Mark

    The right to freedom of speech does not, and has not for many years, protect against what are referred to as "fighting words". This judge obviously uses those parameters in this case. Whether he is wrong or right will be left up to the courts above him because this case will most certainly be appealed.

    February 28, 2012 at 2:23 pm |
    • Eric

      Mohammed is gay.

      February 28, 2012 at 2:25 pm |
    • Stephanie

      Well, if this precedent is set, then when some Catholics attack someone because they are offended I hope all you people who are defending the Muslim today will defend the Christian tomorrow. Because once people see that attacking people because you are offended is acceptable...all bets are going to be off. And we will have a chaos of people being offended and feeling they have a right to attack you over it. So, good luck with that. Freedom of speech will die as no one will speak out for fear of being attacked and having the court defend your attacker.

      February 28, 2012 at 2:28 pm |
    • Dan. M

      What were the "fighting words" that made a physical attack justified?

      Perce wore a zombie costume and said, "I am the prophet muhammad!"

      He did not remark to anyone in particular. He did not in any way provoke any individual. He just wore a costume and said he was muhammad.

      How does that justify being attacked? Explain how those were "fighting words."

      February 28, 2012 at 2:32 pm |
  15. Mikey

    Congrats judge, I only served 3 years in the US Army and have every bit of respect for Islam and completely believe that the whole lot of Teabaggers are bigots in disguise of "social justice". However, I'm also a 29 year old American citizen and if I wanna be a goof ball and go out on Halloween dressed as Mohammed, Jesus, Shiva, etc. and act a fool that is completely my choice. I should have to be afraid to do this on the streets in Iraq, Rome, or India respectively, but certainly not on the streets in the US.

    I can make fun of your religion, my religion, any religion, if I want. If you don't like it, walk away.

    February 28, 2012 at 2:22 pm |
    • CalmDog

      By your logic, I have the right to trash talk about your mother right in your face, and I also have the right to expect you to just stand there and take it.
      Right. I'm that dumb.

      February 28, 2012 at 2:27 pm |
    • BRC

      You do have that right. AS long as you don't stalk, persistently harass, or threaten the person, you can tell anyone you want that you did horribly dirty things to their mother, and it's perfectly legal 9there are some exceptions if children are in earshot, but that's getting into specifics). Welcome to Freedom, it's a wonderful and delicate thing.

      February 28, 2012 at 2:33 pm |
    • Roger


      Yes, you do.
      ...and if I hit you or shoot you or stab you for saying it, I will go to jail. Thats how it works.

      February 28, 2012 at 2:43 pm |
  16. Ralph Henson

    If the story is true, the judge is right. If the prosecution did not do its job, they are wrong.
    The judge could have heard what he wanted to hear and judged accordingly. Who knows?
    There wasn't one witness that saw the attack? That is what I find hard to believe!

    February 28, 2012 at 2:21 pm |
    • reason

      There were witnesses as seen in the video, it was a parade! The attacker admitted assaulting him, to a police officer!

      February 28, 2012 at 2:24 pm |
  17. Eric

    Love God, love your neighbor. If you don't believe in God, at least love your neighbor.

    February 28, 2012 at 2:21 pm |
  18. Chris

    This atheist agrees that the butthurt atheists here in America are a nuisance.

    February 28, 2012 at 2:20 pm |
  19. Lucifer's Evil Twin

    Judge looks like a fat REMF/FOBBIT to me. How much PTSD could a JAG fobbit possibly have?

    February 28, 2012 at 2:20 pm |
  20. Kenneth

    I am a Proud to say im Atheist I do not honor fake people as my God.

    February 28, 2012 at 2:19 pm |
    • Chris

      I have never meet an American Atheist who takes pride in the great atheists of the 20th century. Where are your calls for honoring the memories of Lenin, Stalin, Mao, Pol Pot and the great atheist leaders of North Korea. These men took pride in the killing of millions and the destruction of basic human rights, where is the American Atheist pride for them.

      February 28, 2012 at 2:24 pm |
    • Chris

      Are you dumb? Those men were motivated by a political ideology that was not atheist. Hitler was Catholic, does that mean all catholics are killers? He was also a vegetarian. Does that mean Vegetarians are evil? That is the oldest and weakest argument in the book. Im not the same Chris as you.

      February 28, 2012 at 2:28 pm |
    • Fair Taxes

      Chris, you really don't understand that you have no idea what you're talking about do you?

      February 28, 2012 at 2:28 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.