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. respect

    I'm an atheist, but I despise when other atheists and agnostics disrespect other religions. I have lived among all kinds of religious groups and I have the up most respect for them. Some may seem a little crazy to people, but that does not matter, what matters are your own personal beliefs, that you keep to yourself. Maybe there are radicals out there, but that should not give anyone reason to counter attack. Two wrongs do not make a right.

    February 28, 2012 at 4:20 pm |
  2. Greg

    So one of them is a "self proclaimed" atheist and the other is just a muslim. Way to write this piece in an unbiased way. Apparently religious people have their self-proclaimed religion accepted by default but atheists are just "self proclaimed." This goes to show, atheists face worse discrimination than even muslims.

    February 28, 2012 at 4:18 pm |
    • QS

      Agreed. I'm Atheist, but I'm also gay. The best way I can put it is this:

      If I were straight, I'd still be Atheist,
      If I were religious, I'd still be gay.

      It offends me when religious people try to "save" me based on their determination of why they think I need to be "saved", but I think I find it even more offensive that any myth, fairy tale, delusion, or what-have-you can be completely accepted in this society, but the ones who are considered "off" are the ones like me who find religious beliefs absurd.

      As Bill Maher just said....faith is just an opinion.

      Seriously, what is it that can make a normally rational human being believe in something that can never be proven and at the same time make them believe that those of us who don't believe in mythological fiction are the ones who are crazy?

      February 28, 2012 at 4:26 pm |
  3. A Voice of Reason

    While Islam is not a "religion of death" or the Koran a "book of death", it is not unreasonable for immigrants to the United States to behave in a manner commensurate with their new home. The United States is not a place for the intolerant or those certain that their way is the only right way. While The United States does have such citizens it is hope that they are a declining minority and that in time they will disappear. Perhaps in another country it is acceptable to attack demonstrators -and the proposition that an attack occurred is sufficient for the presentation of the argument- however, here, the correct act is to mount a counter demonstration when one disagrees with the thoughts and ideas of another group.

    Individuals who have left another country to come to The United States must be aware in some manner that whatever it may be that is done different in this country affected their choice to immigrate to The United States. The desire to leave somewhere else is insufficient in as much as a myriad of other nations will take refugees from oppressive regimes the world over. The reader is reminded that whatever the justification for oppression in the end oppression is something inflicted on human beings by other human beings. The fact that a man chooses not to believe in what another man does is not a justification for an action that is simply unacceptable behavior for a potential citizen of The United States.

    This Author feels that the judge in question erred in his statements justifying his decision and the plaintiff is almost certain to obtain a new trial at the least on appeal. Moreover, the fundamental error in the judge's statement can be seen by the simple expedient of a counter example: should a white supremacist attack an African American man it would be considered a hate crime without regards to what anyone was saying at the time. While provocative speech may be seen as a mitigation, it is most assuredly not a justification.

    Atheism is as justifiable a belief system and perhaps more so than the Abrahmaic religions in general and the rights of an individual to express themselves must not be allowed to be infringed upon by anyone lest their actions create the very environment they sought to escape. Cartoons or costumes, the followers of Islam that reside within the most democratic of nations must accept that freedom and democracy mean something more than they perhaps expected.

    This is a problem that will continue to rise in frequency and notoriety in as much as it is certain to occur again. I sincerely hope that forums such as this would open the door to frank and honest discussion. It is also this author's hope that individuals would treat each other with respect and kindness. Please, Ladies and Gentlemen, avoid arguments from ignorance and Ad Hominem and/or strawman attacks and make your point without resorting to insults or jingoism.

    February 28, 2012 at 4:17 pm |
  4. Mike Williams

    "I've served close to 27 years in the military – and have gone overseas – exactly to preserve that right [freedom of speech.]”
    This judge is clearly a moron if he actually believes that anything he did in the military came close to preserving anyone's rights.

    February 28, 2012 at 4:16 pm |
  5. Atheist

    That judge should be removed from the bench.

    February 28, 2012 at 4:16 pm |
  6. wilypagan

    Why doesn't the ACLU get involved with this? Although the Muslim perpetrator was not a government actor, the court's approval of his assault on the atheist arguably could be considered state action. Since the ACLU protects the KKK and other disliked groups, how about a little support for this atheist, who is simply the canary in the coal mine when it comes to warning us of the creeping descent into Shariah law in this country.

    Due to Saudi money, Harvard and Yale are under Muslim thrall. Time to stop the influence of backward and discriminatory cultures in our great nation. It is an issue of national security. Very scary that this "judge" is a military officer. What's next? Forced submission to the "religion of peace"?

    February 28, 2012 at 4:14 pm |
    • Spence

      The ACLU has no problem with people that hate America. Only people that don't hate America need to get jammed up by the ACLU.

      February 28, 2012 at 4:17 pm |
    • janelle

      There was no evidence against the man who was charged. The tape dosn't show who assaulted the man in costume. If it's one person's word against another's and there is no evidence, you can't try and convict someone.

      February 28, 2012 at 4:20 pm |
  7. A. Anderson

    I am surprised that so many people find a problem with this judge. Our freedon of speech as Americans should not mean freedom to yell fire in a movie theater..... should not mean Westboro Baptist Church can picket outside of the private funerals of dead American Military men and women because "god hates gay people"....Should not mean you can wear a klan costume at the BET awards.... or dress up as Hitler at a Bar Mitzvah.....nor should you dress up as a Mohamad to get a cheap laugh. The founding fathers were very clear that our freedom of speech does not and should not trample on others right to Life, Liberty, and pursuit of happiness.

    February 28, 2012 at 4:14 pm |
    • momoya

      So you htink that it's perfectly alright to ASSAULT someone who SAYS something offensive?

      February 28, 2012 at 4:15 pm |
    • rjinx

      I couldn't have said it better.

      February 28, 2012 at 4:20 pm |
    • rjinx

      Did he say or even insinuate it is ok to assault someone who says something offensive? This idiot was out to insult someone else's religion...nothing more. The judge essentially said he did not have enough evidence an assault occurred....read the story.

      February 28, 2012 at 4:22 pm |
    • janelle

      But, there was no evidence that the person who was being charged assaulted the man in costume, or anyone else. With no evidence, you can't try and convict someone.

      February 28, 2012 at 4:23 pm |
    • Doc Vestibule

      If your definition of freedom of speech has a "except when" in it, then you don't believe in the principle of free speech.

      February 28, 2012 at 4:27 pm |
    • Phil

      I will answer that question. If the ONLY reason you are saying something is to INSULT SOMEONE, then I think it is your duty to ASSAULT THAT PERSON

      February 28, 2012 at 6:39 pm |
  8. Chris

    It seems like as long as you have 'A' religion, you're protected under the law, no matter how nonsensical that belief system is. Who wants to join my new Church of the Divine Washing Machine? It's better then being burned as a heretic!

    February 28, 2012 at 4:13 pm |
    • Doc Vestibule

      Join the Church of The Subgenius
      It's only $30 to become an ordained minister and they offer eternal salvation or triple your money back.
      Praise "Bob"

      February 28, 2012 at 4:15 pm |
    • QS

      If what gets washed in that washing machine is my brain, then I'd say your "new" religion is just like all the rest.

      February 28, 2012 at 4:36 pm |
  9. medstudent

    So Westboro can go about being as offensive as possible, but insult a muslim and they can assault you?

    Someone get this judge off his seat

    February 28, 2012 at 4:13 pm |
    • James

      Do you think that they haven't been assaulted before? They sue people for it all the time, it's literally a source of revenue for them.

      February 28, 2012 at 4:40 pm |
  10. momoya

    Call the judge's office now:

    717-240-7864 << live operator

    717-766-4575 << leave message

    February 28, 2012 at 4:13 pm |
  11. Pertnear

    And to those who never thought something like this would happen in the US – it has officially happened. This needs to be stopped immediately, the judge removed from the bench, and his license revoked. Imagine the uproar if the judge ruled in favor of a Christian and stated he did only because he is a Christian too.

    February 28, 2012 at 4:12 pm |
    • Phil

      That's not what happened at all.

      February 28, 2012 at 6:51 pm |
  12. jdoe

    The judge is condoning attacks on people because of religious sensibilities. This is a dangerous precedent.

    February 28, 2012 at 4:11 pm |
    • rjinx

      So you think this guy had religious sensibilities? Get outta here....

      February 28, 2012 at 4:18 pm |
  13. joe

    So, I can attack a Muslim because according to his beliefs (which are provoking), by belly should be burned, head cut off etc. etc.... goes on for about 60 pages or so. I mean, I find the religion hateful and evil, so.... if I feel provoked to attack, that's ok?

    February 28, 2012 at 4:10 pm |
    • Observer

      Are you talking about US or Saudi? Although after this case, never mind.

      February 28, 2012 at 4:14 pm |
    • reason

      Many Christian beliefs are just as provocative. Does this mean it is open season to assault anybody who holds any religious beliefs?

      February 28, 2012 at 4:15 pm |
  14. reason

    Here is the judge's pro-Islam rant where cites Sharia law, declares he is a Muslim and says he was offended by the victim:


    February 28, 2012 at 4:07 pm |
  15. D

    fck atheists theyre all a pack of fggts and sociopaths anyway...marching right back into the Stone Ages they are...

    February 28, 2012 at 4:06 pm |
    • palintwit

      STFU and get back in your trailer.

      February 28, 2012 at 4:09 pm |
    • AverageJoe76

      D – Why so serious?

      February 28, 2012 at 4:14 pm |
    • Will

      I would wager that a majority of atheists are more educated and civilized than you are.

      February 28, 2012 at 4:17 pm |
    • Vested

      This is too confusi8ng for right wing extremists. The comments are all over the place. They need Rush Limbaugh or the other propaganda artists to give them talking points.

      February 28, 2012 at 4:18 pm |
    • Vested

      This is too confusing for right wing extremists. The comments are all over the place. They need Rush Limbaugh or the other propaganda artists to give them talking points.

      February 28, 2012 at 4:19 pm |
    • WUT

      Half of the atheists I know are exemplary citizens who spend much of their time doing charity work. The other half listen to death metal and loiter in McDonald's parking lots. 99% are OWS protesters. lol

      February 28, 2012 at 4:36 pm |
  16. Niel

    the atheist is going to hell, it will be a safari for him.
    joking apart, it was a horrible decision by the judge. While I belive that the athiest went out of bounds with his acts, violence was unwarranted. He should be punished.

    February 28, 2012 at 4:06 pm |
  17. palintwit

    Did you hear about the dyslexic atheist? He doesn't believe in dog.

    February 28, 2012 at 4:06 pm |
  18. John

    Atheists have the same right to free speech as religious zealots. The judge's ruling was absolutely wrong!!

    February 28, 2012 at 4:05 pm |
    • Paul

      The judge's ruling wasn't wrong. This wasn't about denying one man's 1st Amendment rights. The charge of Harassment was dismissed because there wasn't sufficient evidence.

      What gets a lot of people upset about this case (and I feel that the judge erred) was with his lecture, which came across as heavy handed and justifying the accused actions.

      February 28, 2012 at 4:28 pm |
  19. powerlifter

    This judge is a joke and should work at Subway as a sandwich artist.

    February 28, 2012 at 4:05 pm |
  20. god is imaginary

    judge is a christard

    February 28, 2012 at 4:04 pm |
    • aggiemara

      The judge is Muslim, too. So get your insult right, okay? Try, Islamonazi.

      February 28, 2012 at 4:20 pm |
    • Paul

      @aggiemara. Did you not bother to read the article? The Judge is a Lutheran. That's a branch of the Christian faith

      February 28, 2012 at 4:32 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.