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. Balanced99

    Where's the ACLU? This must be absolute torture for those far left nuts.

    I'm not religious and I'm and independent. I do however recognize that our country was founded on a belief in god – a christian belief. I don't see how anyone could argue with that point – the ten commandments are carved in stone throughout our federal buildings.

    Is there anyone out there crazy enough to think the ACLU wouldn't be all over this if the guy dressed as Moses and got attacked by a Catholic?

    Personally – I think the judge was correct (considering the strange facts – no witnesses in a parade). Although his comments were out of line, way out of line – and thus what's igniting the controversy – I believe in general that he was correct in stating that rights come responsibility. He was however completely out of line in mentioning anything to do with what might have happened under law anywhere but the US.

    February 28, 2012 at 5:55 pm |
  2. LOL

    If you listen to all +30 minutes of the court audio, you can CLEARLY hear the judge state that he is a Muslim.

    February 28, 2012 at 5:53 pm |
    • sarah

      You don't have to listen to the whole thing and the "I'm" is muffled. Not clear.

      February 28, 2012 at 5:56 pm |
  3. petemg

    What is with this judge. Now what would happen if an atheist were to attack a Muslim would that be okay according to the judge. An attack on a fellow human is still an attack.

    February 28, 2012 at 5:49 pm |
    • momoya

      ,,Unless you think violent assault is a good and decent response to speech, call and make your opinion known.

      Call the judge's office now:

      717-240-7864 << live operator

      717-766-4575 << leave message

      February 28, 2012 at 5:59 pm |
    • sarah

      Nope. There is not enough evidence that there was an attack. Just a guy yelling briefly off-camera and witnesses who all pretty much set out to provoke people. The "attack" lasted seconds and then they continued on. That's not great evidence. If it was, anyone could get framed for assault charges.

      February 28, 2012 at 6:00 pm |
  4. Rob

    The judge went on to point out that in many Muslim countries, ridiculing Mohammed could warrant the death penalty under Islamic law - Since when is the US a country under islamic law? LOL

    February 28, 2012 at 5:49 pm |
    • sarah

      Did he sentence the victim to death? If not, then he's just stating a fact about other countries. He's trying to make the atheist understand that what he did was risky and possibly dangerous. There are plenty of legal things that people can do that could be bad for their health.

      February 28, 2012 at 6:02 pm |
  5. Jon from Atlanta

    The judge clearly said he was a Muslim according to the audio tape of the hearing. Sounds like the judge is engaging in some taqiyya / tawriya – Islamic deception.

    February 28, 2012 at 5:48 pm |
  6. oakstave

    I don't get it. I read over and over again that this judge was Islamic, and was practicing 'Sharia Law'. Don't all the nutjobs say this is a 'liberal media' source?

    So instead, I read he's Lutheran, and made no reference to Sharia Law at all... I guess he was practicing Lutheran Law?

    So much for Liberal Media...

    February 28, 2012 at 5:47 pm |
  7. WB

    Haven't we had enough religious wars?

    February 28, 2012 at 5:47 pm |
  8. Confused

    Based on this precedent assault and battery are now permissible if one is provoked by offensive speech or behavior?

    February 28, 2012 at 5:46 pm |
  9. Olaf Big

    What this guy did was stupid and provocative, and it sure gives atheism a bad name. However, the judge was wrong to bring the issue of cultural sensitivity into a legal ruling. He should have stopped at saying that there is not enough evidence to convict the alleged attacker. As stupid as this guy behaved, he was within his first amendment rights, while his alleged attacker (if the attack indeed happened) broke the law.

    February 28, 2012 at 5:45 pm |
    • arctos

      Good Lord America , dont you read the Koran ?

      February 28, 2012 at 5:50 pm |
  10. August

    With a Muslim president what do you expect?

    February 28, 2012 at 5:45 pm |
    • Olaf Big

      Even from the guys like you, I would expect a little bit more intelligence and little bit less paranoia...

      February 28, 2012 at 5:49 pm |
    • Rob

      Oh here we go again, talking about Bush JR LOL

      February 28, 2012 at 5:50 pm |
    • Lucifer's Evil Twin

      What is this? Stupid tea-bagger redneck hour?

      February 28, 2012 at 5:51 pm |
    • deadelephant

      dumbest comment ever. Please back up your lie

      February 28, 2012 at 6:07 pm |
    • Abba BRyant

      Obvious Troll is obvious.

      February 28, 2012 at 6:23 pm |
  11. jacques

    fortunately, the first amendment doesn't say it's illegal for someone to attack you for insulting them.

    February 28, 2012 at 5:44 pm |
  12. ProperVillain

    That judge is just an atypical, right wing, fanatical moron. This guy was clearly assaulted. So what now? It's ok if someone was attacked as long as he disagrees with your personal beliefs? Pathetic. This guy should be removed from the bench and given a job at the local walmart....

    February 28, 2012 at 5:42 pm |
    • Mike

      Right wing? What part of this story even comes close to insinuating that this guy is right wing?
      He appears to be far more left than right. No right leaning judge would allow someone off on a charge like this, especially since he was offended as a Muslim.

      February 28, 2012 at 6:00 pm |
  13. Hitchens

    To be an atheist is to be a known liar. Who would take an atheists word other than another atheist? They reject The Truth and recognize no higher authority, by what would they swear Truth? An atheist is the worst witness to anything. At the lowest end of credibility would be the atheist. The judge was right.

    February 28, 2012 at 5:38 pm |
    • Lucifer's Evil Twin


      February 28, 2012 at 5:42 pm |
    • jordan

      Frak You !!!
      I am an Atheist.That is all I have to say.

      February 28, 2012 at 5:43 pm |
    • oakstave

      You are totally in the wrong country. You need to move to Iran, Uganda... there's a half dozen other hellholes in the world run by religious nutjobs like you. You'd LOVE it! No rights, no freedom, just taliban-like authoritarian rule from a man taking orders from an invisible ghost.

      February 28, 2012 at 5:45 pm |
    • JL

      Dude, you are a member of a cult. Doesn't your own bible say it isn't your place to judge a human being and that is God's place, not man's? Yes. It does. So, you are purposely ignoring your own religion to accuse someone you don't know of being against God and yet, by your actions, you are doing the EXACT SAME THING. Enjoy hell, Bish.

      February 28, 2012 at 5:47 pm |
    • ....

      Got to love judgmental prejudice Christians, what a hypocrite, you are nothing like your Christ. Oh lying is a sin moron.

      February 28, 2012 at 5:48 pm |
    • Abba BRyant

      So I am lying because I don't believe in something that can not be proven? So, by extension, all of the *other* religions in the world are liars? You are a bigot or a troll – take your silly bearded sky-fairy and go somewhere else.

      February 28, 2012 at 5:49 pm |
    • Hitchens

      The United States is a Christian nation and rightly so. If anyone needs to leave it would be the oddballs, the atheists. There are so few their loss would not be missed and their leaving would allow USA would be restored to its greatness again.

      February 28, 2012 at 5:50 pm |
    • JPS

      Time and Time and Time again – Thousand and thousands of years RELIGION RULE on this planet have over and over again brought this planet to the brink of destruction and cost a TRILLIONS OF LIVES and STILL we have people like YOU who are totally oblivious to the REAL TRUTH.
      RELIGION is the TRUE EVIL and until it is OUTLAWED from this planet then we will continue in our infancy.

      February 28, 2012 at 5:57 pm |
    • Kaine

      The same could be said of all religions, Hitchens. In the eyes of Buddhists, Daoists, Hindus, and other spiritual groups your religion is no more truth than you consider theirs a lie. Just because someone doesn't believe in your belief of what's after this life doesn't mean they're automatically untrustworthy or worse. Many Athiests have been good people in this world, just as many Christian-faithed people have been bad. Case in point: Westboro Baptist Church. You should learn to not generalize, it makes you look ignorant.

      February 28, 2012 at 5:59 pm |
    • Lucifer's Evil Twin

      Stop feeding this retarded troll. He never says anything worth a crap anyway. You're just wasting your time telling him how stupid he is.

      February 28, 2012 at 6:02 pm |
    • vahellbilly

      So, you are saying someone's credibility is based upon what they believe??? Dyslexia got your tongue? It is supposed to be based upon what one absolutely knows and can also prove, showing through their actions.

      Imagine yourself sitting in a courtroom where a judgement is pending that will alter your life forever and you then receive a life-sentence because someone believed you guilty, just because that is what they believed and what was not proven... Pretty scary and medieval is it not?

      Basing morality and integrity upon ones personal faith proves ABSOLUTELY NOTHING of how one conducts themselves or interacts with others. History shows that religion does not make one truly just or humane.

      Get a grip...

      February 28, 2012 at 6:06 pm |
    • rda

      You're so wrong on that one. Athiests are usually the one speaking the truth. Just because you believe in something that was written by men a long time ago doesn't make it the truth. It's called brain washing and just because it's been going on for so long in so many different variances and cultures doesn't make it the truth. It just makes the people preaching it liars. Whether they know it or not. Show me one shread of evidence of your so called truth. Any and all facts i've seen don't support these so called beliefs. Religon was written and preached by men. The sooner everyone faced facts and looked after their fellow man instead of some fictional god and beliefs , the better of the world would be!

      February 28, 2012 at 6:08 pm |
    • rda

      One does not have to be a "Believer" to speak the truth! Just look at so many so called "Believers" that are liars and know what they are saying are lies. Never mind the lies they tell that they believe to be the "Truth!"

      February 28, 2012 at 6:28 pm |
  14. joe

    The only issue before the Judge was did this guy (the one charged) harass the guy (in costume) in the parade. I have a problem trying to understand how if someone is aledged to have assualted someone is charged with harassment. Anyway if this took place as aledged during a parade and there were no witnesses (amassing) it truly is one mans word against the other. So the dismissal against the aledged haraser is correct. The other comments by the Judge as well as the defense attorneys aledged reason for an alledged attack if one happened was motivation to suport ripping a sign from someone is the trash of the whole thing. Remember the saying "sticks and stones may break my bones but names will never hurt me" is a good thing to remember here. The Judge should have just ruled on wether an assualt or harassment violation happened period. The defense attorney should have made a motion as it seems he did not to move for dismissal before he even put on his defense (it appeaers by the ruling the accuser did not provided proof), and then his callous use of offensive speech as a justification if something did happen just flames the fires of stupidity. This is the same idiotic reason the nuts in Afganistan use because of the book burning to kill their neighbors. Come on Judge your ruling was correct just not the commentary that followed. Defense attorney you should have kept your mouth shut and done a better job by moving for dismisal. Also Judge thanks for your service and proud of your service. A fellow Veteran from years ago.

    February 28, 2012 at 5:37 pm |
    • toxictown

      Didn't they have video?

      February 28, 2012 at 5:41 pm |
    • chris

      you like to hear yourself talk don't you.

      February 28, 2012 at 5:43 pm |
    • Beverlee

      Not only was there video but there was also the word of the police officer. Not that he saw the altercation, but that when he arrived both people called to complain. The attacker called because he believed it was against the law in America to portray the prophet as it is in Muslim countries. He told the police officer that he did attack the man. Between the video and the statement of the police officer should have been enough for a guilty verdict.

      On a side note, CNN...very poor reporting. Half truths will ruin the world.

      By the way, I also think the punishment should have been to learn the laws of the land...case closed.

      February 28, 2012 at 5:58 pm |
  15. Reality

    Only for the newbies:

    What instigated the attack on the Twin Towers and the Pentagon?

    And what drives today's 24/7 mosque/imam-planned acts of terror and horror?

    The koran, Mohammed's book of death for all infidels and Muslim domination of the world by any means. Muslims must clean up this book removing said passages admitting that they are based on the Gabriel myth and therefore obviously the hallucinations and/or lies of Mohammed.

    Then we can talk about the safety and location of mosques and what is taught therein. Until then, no Muslim can be trusted anytime or anywhere..................................

    February 28, 2012 at 5:36 pm |
    • GodPot

      "What instigated the attack on the Twin Towers and the Pentagon? "

      I'm pretty sure that was because george Bush dressed up in a Zombie Muhammad costume for the White House inaugeral dinner...pretty sure, yep, that's got to be it.

      February 28, 2012 at 5:40 pm |
  16. kyle

    Goes to show that the only people more despised and persecuted then muslims in america is atheists.

    February 28, 2012 at 5:35 pm |
    • Lucifer's Evil Twin

      A sad reflection of Americans in 2012, but nonetheless true.

      February 28, 2012 at 5:46 pm |
  17. Surf_Dog

    While Mr. Perce's behaviour may have been inappropiate, it was within the law. He was expressing an opinion, as was his colleague who was dressed as the Pope (who incidentaly was not attacked). The object of the protest was in regards with religion in general, which I think this judge totally missed the point of.

    This case needs to be appealed. To allow this decision to stand would set a dangerous precedent.

    February 28, 2012 at 5:34 pm |
    • Tom

      Mr. Perce had not applied for a permit to protest a group or culture. He was in a Halloween Parade. Mr.Elbayomy though was in the wrong from for assault can be not found in the wrong if Mr. Perce can defend that his view was not contributing to or inciting a violence. Because Mr.Perce had not thought out his action beyond the fact of his own selfish views, his actions incited violence. Mr.Elbyomy can say he was defending his religion because of its hard-line and dogmatic teachings. Because Mr.Perce incited violence and he didn't think through his actions, Mr. Elbyomy is innocent of wrong doing and Mr. Perce should be in jail for endangering the public for his acts.

      February 28, 2012 at 5:48 pm |
    • sarah

      I don't know if the Muslim was innocent, but I agree with the judge there wasn't enough evidence.

      February 28, 2012 at 5:54 pm |
  18. Atheism is not healthy for children and other living things

    Prayer changes things .

    February 28, 2012 at 5:33 pm |
    • UncleM

      Prayer changes nothing. God = 0.

      February 28, 2012 at 5:38 pm |
    • Tyggo

      Yeah, but brainwashing your children into believing in mythological heros and deeds is totally healthy. This is why we have suicide bombers and people willing to fly aircraft into tall buildings filled with innocent victims.

      February 28, 2012 at 5:54 pm |
    • Atheism is not healthy for children and other living things

      Prayer changes things,

      February 28, 2012 at 5:55 pm |
    • Matthew

      No need prayer, please read Mat. 6:8.

      February 28, 2012 at 6:01 pm |
    • rda

      Prayer is not required to change things. Nor is it required to raise healthy happy children. If my parents were more concerned about raising me properly instead of sending me off to church and sunday school all the time . And making me pray every night annd before every meal , I'm sure I would have turned out better. It was only after I questioned religion and realized what really matters in life that I became a fine outstanding citizen.

      February 28, 2012 at 6:21 pm |
  19. Carol

    Why weren't the two men who were with him dressed as Muslims for Halloween good enough to be considered witnesses?

    Halloween in America has always been open for all manner of insult, and etc. After all it wasn't the Rose Parade, or St. Patricks Parade these men, who happen to be Atheists, were insulting the Muslims Prophet in, it was a Halloween Parade!

    February 28, 2012 at 5:31 pm |
    • matt

      Probably because it was much less that he made the attack out to be. I mean, come on...if his own friends
      can't be a good witness for him? They probably don't even know what they saw because it didn't seem like much.

      This clown wasted more US money to get what he thinks he deserves....lame.

      February 28, 2012 at 5:46 pm |
    • sarah

      Because they set out to provoke people. It makes their "evidence" suspect just as we would suspect KKK members and a KKK member yelling off-camera that you were attacking him.

      February 28, 2012 at 5:51 pm |
    • JPS

      sarah – What I want to know is WHERE ARE THE KKK when you need them??!!! This is the ORIGINAL reason for the KKK. So that the judge and the muslim could get their a$$e$$ kicked after court was adjourned.

      February 28, 2012 at 6:46 pm |
  20. flyskybird

    Its visual arts.... No different then a cartoonist mocking politics which have been going on for more than a century.

    February 28, 2012 at 5:31 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.