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. dolores

    The atheist deserved it. What he did was a tacky act inviting trouble.

    February 28, 2012 at 11:41 am |
    • Heroicslug


      Oh that guy got beat up? He deserved it!

      Oh that guy got shot? He deserved it!

      You describe vigilantism and mob rule. How anyone can be so base as to advocate either is beyond me.

      February 28, 2012 at 11:43 am |
    • nosferatu

      Yeah, he deserved it. Not like he burned a koran or anything.

      February 28, 2012 at 11:45 am |
    • Mark from Middle River

      Dolores, while I think it should be expected, I do not think that anyone deserves such a beating. One day it could be you or someone you love that is on the receiving end.

      February 28, 2012 at 11:46 am |
    • Mr. N.

      Mark from Middle River, what beating are you referring to? There wasn't any beating, that's why the judge dismissed the case. Like the judge said, just one person's word against another.

      February 28, 2012 at 11:54 am |
    • Chris King (Dublin)

      Mr. N, the assaulter admitted to attacking the victim, and said he did so to show his son or children that blasphemy is not accepted. What kind of example did that Judge show these children by chastising the victim? I am sure the assaulter went home and said, "see son, I was in the right".

      February 28, 2012 at 12:09 pm |
    • DrewNumberTwo

      So we can now harass and/or assault people that we find tacky? My next visit to Wal-Mart is going to be eventful.

      February 28, 2012 at 12:10 pm |
  2. tom

    The CNN story I read above said the case was dismissed because of lack of evidence, not on its merits. Did I get a different version than the folks who are berating the judge? Or is it okay to try to convict someone without evidence if you just don't happen to like them?

    February 28, 2012 at 11:41 am |
    • Chris King (Dublin)

      Speaking for myself, it is the fact the Judge chastised the victim and not the assaulter. Why would the Judge bring up blasphemy laws of another Country? Why would he say he was Muslim and then retract it? Something smells fishy here.

      February 28, 2012 at 11:44 am |
    • know your facts

      if it was a parade there had to be numerous witnesses. the judge saying what the law is overseas is disingenous. appeal and win

      February 28, 2012 at 11:47 am |
  3. Lisa

    " We need to start policing up our own actions, using common sense, in how we deal with others."

    Define "common sense."

    February 28, 2012 at 11:40 am |
    • Wimps

      Let me get this straight...
      I am reading that one guy tries to cause trouble to a CROWD of Atheists, and the most that could be done was everybody crying to their mommy about the bad man?

      Sheesh....grow some balls guys.

      February 28, 2012 at 11:55 am |
    • Wimps

      Sorry.....not meant to go here.

      February 28, 2012 at 11:55 am |
  4. Man I hate this

    How can the judge say that if we abuse our rights they will be taken away! No one can take our rights away! They are our rights! If they try to take them away I for one will fight even if its against my own country.

    February 28, 2012 at 11:39 am |
    • dolores

      They can't take away our rights?? How many have we already lost. Count em.

      February 28, 2012 at 11:43 am |
    • Girolamo

      What rights? We lost them a long time ago and that's the truth.

      February 28, 2012 at 11:44 am |
  5. hodel

    I am often offended by religious people holding signs, especially anti-abortion protestors. Those are also very "provocative" actions about "an issue sensitive" to many people. So now I can beat the hell out of those protestors and cite this case as presidence!! Thanks your Honor.

    February 28, 2012 at 11:39 am |
    • Mark from Middle River

      ...and when someone else is at a pro-choice rally someone will do the same to them and leave them bloody and beaten...maybe a friend or relative

      Ready to still say "thanks your honor?"

      February 28, 2012 at 11:44 am |
    • not bob levy

      Agreed! So now the fathers of the dead American soldiers that are protested by Fred Phelps can shoot the protestors and say, up religous antgonists.
      -not bob levy

      February 28, 2012 at 11:45 am |
    • Mark from Middle River

      ...and when some Afgan or Iraqi who is living here in the states sees a Welcome Home Troops parade down main street ...and he chooses to react?

      February 28, 2012 at 11:48 am |
    • J.W

      As long as there are no witnesses and you leave no evidence.

      February 28, 2012 at 11:49 am |
    • hodel

      Mark... Yep, I guess this judge has opened the door for that action too. I couldn't do anything about it, cause the LAW says it is allowed, and I would not want to break the LAW.

      February 28, 2012 at 11:51 am |
    • Mr. N.

      What beating? Are you guys reading a different article, or are you drunk? THERE WAS NO BEATING!! That's the f-ing point the judge made about letting Mr. Elbayomy go!

      February 28, 2012 at 11:58 am |
  6. Give Me A Break

    So an admission of guilt by the suspect is not enough evidence? What is then?

    February 28, 2012 at 11:39 am |
  7. Chris King (Dublin)

    The fact the Judge chastised the victim and not the assaulter is disgusting, and poor judgement. The assaulter walked away feeling he was in the right. The Judge is a disgusting heathen, and should step down.

    February 28, 2012 at 11:39 am |
  8. Deathstalker

    I think if there had been more proof or if more damage had been done to the victim in this case then the charges would not have been dropped. The fact that the guy had no bruises or lacerations was the main reason for the dismissal.

    February 28, 2012 at 11:38 am |
    • Unplugged

      Clearly, you have no concept of criminal law. If I were to walk up and spit on you, you could have me arrested for assault and battery. You need no injury, you need no scratches. Your point is absolutely pointless.

      February 28, 2012 at 11:43 am |
    • Mr. N.

      You're right Unplugged, but you also need some kind of evidence. The judge makes it sound as if there was enough in this case, and perhaps he was right. How familiar are you with this case?

      February 28, 2012 at 12:00 pm |
  9. No Comment

    Audio transcript of the case: http://www.youtube[dot]com/watch?v=Sv9IyrpOnbs

    February 28, 2012 at 11:38 am |
  10. Salero 21

    "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."

    The above quot; the last paragraph in the article, at least to me, says it all about the real motivations behind the provocation of the self proclaimed "atheist". The muslim is an "IMMIGRANT". As an "IMMIGRANT" he should and ought to take and put up with all sorts of offenses and mockery from the likes of "atheists". What we don't know yet and the atheists won't tell is, if the muslim may be also a citizen. Thought that is Not the real issue here.

    The Real Issue is or should be IMVHO, What, Where and When "Rights" without Responsibility and exercised under the Influence of something become abusive, intrusive and Licentions. There is no need to provoke anyone who has not done anything personal againt the provocateur.

    February 28, 2012 at 11:38 am |
    • I'm The Best!

      What they're trying to say there is just because he is an immigrant, and is ignorant of our laws doesn't mean he should get a free ride. Our laws allow us to be mean to each other and act irresponsible without the fear of being attacked for it.

      February 28, 2012 at 11:46 am |
  11. Amir

    This has nothing to do with Shariah law....
    1) The judge made a legal decision based on the evidence at hand. If you see the video, you can barely tell what's going on.
    2) The judge was trying to make a point that people need to be sensible with their First Amendment rights.

    For example:
    Am I within my First Amendment rights to walk around the hood saying loudly "there are sure a lot of low income black people around here"?

    If you believe it is your right, please go do it.

    February 28, 2012 at 11:37 am |
    • Heroicslug

      Yes you are.

      And if there are witnesses to any crimes committed against you, they will be prosecuted – regardless of anything you said.

      February 28, 2012 at 11:40 am |
    • Context

      Your comment makes no sense whatsoever. This was an atheist dressed up for a Halloween parade.

      February 28, 2012 at 11:40 am |
    • Amir

      I also agree that the judge went too far on his lecture to Perce. Probably should have zipped it, but I bet that was the War Veteran side of him talking.

      February 28, 2012 at 11:42 am |
    • Sensible

      In that same video there is another guy mocking the Pope. Does it give a catholic the right to assault?

      February 28, 2012 at 11:43 am |
    • anotherthinker

      Yes, but the judge did not need to, and should not have made the comment about being outside or beyond 1st amendment rights. The case may not have passed beyond a reasonable doubt muster, but it is not merely because it's one person's word against the other. That is often the case in less exciting criminal matters. If that were grounds to dismiss or enter and ng, then many or most domestic violence cases would have the same result. They do not. Why? Because there may be extrinsic evidence and witness credibility is considered.

      This judge certainly seems to have overstepped his bounds. Freedom of speech means you can say things that are offensive to others, even if it is not wise to do so (think KKK and Nazis and other 'out' groups), as long as you do not assault them or otherwise break the law. This cannot be an excuse for someone to assault the speaker, or otherwise break the law. Does this judge think the Afghani's were justified in killing 2 servicemen because some service member burned Q'rans? Would it have been justified if the servicemen were the ones who threw the book into the fire? Would that ever excuse someone for a similar act in the US? Does it matter whether it was a mere assault or a murder?

      I think not.

      February 28, 2012 at 11:47 am |
    • Leaveblank

      Amir, you are a bigot.

      February 28, 2012 at 11:50 am |
  12. Matt

    I just don't understand mocking one's religious (or nonreligious beliefs). What is the actual point in dressing up like "Zombie Mohammad"? I understand Atheism and I'm perfectly fine with whatever people believe in, but, I think its very tasteless to parade around as something that YOU KNOW will be offensive to so many people of that faith. That said, no one has the right to physically attack someone else in that manner. I just think we're living in this whole, "I need to make a spectacle of myself so people know what I do or don't believe in".

    February 28, 2012 at 11:36 am |
    • Heroicslug

      Because it is important to make the point that we aren't going to abide by the standards of primitives.

      We are free to do as we please. And so we will.

      February 28, 2012 at 11:38 am |
    • OldGoat

      Matt, I believe you may have missed the point. The point isn't a case of whether mocking religious beliefs is in good or bad taste. The point is whether the judge was exercising good judgment in castigating Ernie Perce the way he did.

      February 28, 2012 at 11:41 am |
    • Matt

      Heroic: Who exactly are the "primitives" in this instance? Muslims?? You and I are not free to do whatever we want, that's why we have laws.

      February 28, 2012 at 11:41 am |
    • marko


      You could really make a statement by moving to any Islamic country and live by that motto.

      February 28, 2012 at 11:47 am |
    • Frank


      NOW DO YOU UNDERSTAND!? Did you not go through the FREE school system in this country? Or are you just another LIBERAL?

      February 28, 2012 at 11:50 am |
    • Heroicslug

      Yes, the primitives I refer to are Muslims.

      Do you have a better term for a group of people that is largely uneducated, immoral, and tolerant of violence?

      Though those in Western nations may be the exception, Muslims on the whole are largely as I described.

      We are free, for the most part, to do as we please.

      Of course we can't kill or set fire to things, but in a general sense we're free to do as we like.

      In nations where Islam is predominant, this is not the case.

      It is important that we exercise our rights vigorously so that they do not atrophy.

      February 28, 2012 at 11:51 am |
    • Heroicslug


      That would be stupid. Why would I want to live in a sandpit, even if it weren't completely backwards?

      Did you have a point?

      February 28, 2012 at 11:53 am |
  13. OldGoat

    Judges are supposed to be completely objective and secular in their decisions. This judge clearly was not. I don't care if improperly invoking the prophet Mohammed's name can result in a fatwa in some backward Arab country. That isn't the case in the USA and most civilized nations, and is a completely unwarranted excuse for any judge to use in making a ruling.

    February 28, 2012 at 11:36 am |
    • Mr. N.

      I think that the issue here is that there wasn't enough evidence of the attack (no injuries, no witnesses, etc). Judges dismiss stuff like this all the time. Yeah, the judge did insert his opinion on the matter, which wasn't necessarily warranted, but had there been actual proof of the attack, the case would have been cut-and-dried against Mr. Elbayomy.

      February 28, 2012 at 11:53 am |
  14. Ryan

    I fail to understand why columnists and reporters refer to atheists as "self-proclaimed atheists", as though some doubt remains. We don't refer to religous people as "self-proclaimed" Christians or Muslims. It appears as though the author believes the victim may not really comprehend his own belief system.

    February 28, 2012 at 11:35 am |
  15. ART

    We need to send this judge to Afganistan

    February 28, 2012 at 11:35 am |
    • OldGoat

      Afghanistan doesn't need more Islam sympathizers.

      February 28, 2012 at 11:37 am |
    • Mark from Middle River

      Maybe Ireland. I hear they still have issues with Protestants and Catholics marching through each others neighborhoods.

      February 28, 2012 at 11:39 am |
    • Danigirl65

      If you read the article, the judge has already served in 3 terms of service to his country in both Iraq and Afghanistan.

      February 28, 2012 at 11:40 am |
    • Really?

      You guys really need to start reading the articles, not just the headlines.

      The Judge has served in the military for 27 years and served 3 tours of duty in Iraq and Afganistan totalling over 2 years.

      February 28, 2012 at 11:49 am |
  16. hippypoet

    is it just me or does the new speaker look really fuc.ked up! perhaps just hung-over but still, damn!

    February 28, 2012 at 11:35 am |
  17. Heroicslug

    Woah. This judge is gonna get removed.

    I get where he's coming from, but that doesn't change the fact that he is wrong.

    First amendment rights were exercised, someone committed assault.

    What would have happened in other countries is irrelevant and not deserving of mention in an American court.

    February 28, 2012 at 11:35 am |
    • HAD no proof that he was assaulted!!!!!!!!

      Had no proof that he was assaulted!!!!!!!!!

      February 28, 2012 at 11:42 am |
    • ThoughtProcess

      I'm curious how you know someone committed an assault? Because the "victim" said it happened, it must have happened and no evidence is needed? In America you have the freedom of speech and the right to a fair trial. There is NO evidence of an attack. No witnesses of it, not medical reports to indicate it, not video of it. Nothing. So it was dismissed and rightly so.

      February 28, 2012 at 11:51 am |
    • Heroicslug

      He did have a witness. That bloke dressed as the Pope. Surely there were others as well.

      February 28, 2012 at 11:56 am |
    • eric

      I agree; assault is assault and the attacker should have paid the penalty. BUT, if you invite and instigate it, you deserve a punch in the face which is exactly what this dummy did and hopefully got. It's like the Westboro nutcases. They have the right to protest.....but why don't they do it at the Pentagon or White House or at recruitment centers. Doing it at funerals where emotions are high, someone just lost a friend, son, husband...whatever...is just plain wrong, legal but wrong. I would happily hold one down while someone else beat them for doing that at a funeral I attended. Sometimes you just have to look at the situation. This guy needs to understand cause and effect. He invited it and to think otherwise makes him an idiot.

      February 28, 2012 at 12:14 pm |
  18. Steve O

    The judge should have stopped with "there's not enough evidence." Once he decided to include criticism of the victim and claim that Perce was "way outside [the] bounds of First Amendment rights".

    Was it rude? Yep.
    Was it meant to be provocative? Yep.
    Was Perce being a jerk? Probably.
    However, kind and polite speech and expression doesn't need protection. Saying or doing something that offends others isn't "abusing" your rights, and it definitely shouldn't cause people to lose them. And short of threatening someone, it does not justify violence. That's just ignorant.

    February 28, 2012 at 11:34 am |
  19. fintastic

    Can he appeal the case?

    February 28, 2012 at 11:34 am |
  20. Scutt Farkas

    If there was no evidence, there was no evidence. However the judges comments are off base. He has every right to say whatever he wants, regardless of whether it will upset people.

    February 28, 2012 at 11:33 am |
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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.