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. Patrick Murphy

    Yes, everyone has a right to be an idiot (at least in the USA), but they also have the risk of getting punched in the face if they choose to be idiotic, disrespectful, or in other ways acting like a complete a__hole. This guy came looking for trouble, and guess what... As a country we should not condone or encourage such behavior as it is bound to make the headlines (in lieu of actual news and issues of importance to society) and that just brings out more of the Crazies.

    February 28, 2012 at 12:22 pm |
    • Eric G

      I think the crazies should come out, religious and atheist alike, and take a good whuppin.

      February 28, 2012 at 12:29 pm |
  2. wisdomseeker

    I agree with the judges ruling. Common sense should have prevailed in this situation. The man deliberately with his dress and speech went out trying to stir up conflict and start a fight. The athiests in this country are pushing the envelope further and further. This guy did have the right to go out and make a fool of himself. He did have the right to display himself as self centered and empty of the thought for other people who inhabit this planet too. The muslim guy has the right to defend his beliefs as well and let the athiest know that he doesn't appreciate his position. The athiests, the bullies, all the mean people want their rights protected and they think their right to step on other people, be uncivilized and downright disgusting in their actions are more important than the ordinary, not so in your face, run-of-the mill good citizen's right to space, their free speech, and their right to not hear profanities, not be ridiculed, not be inundated with the hate and evil of others. I bet if you check the history of the life of Mr. Perce, that he is and probably has always been a bully, a mean spirited jerk. I have the right to live and raise my family to believe in Jesus, to teach my children to treat others with respect and courtesy and compassion. I have the right to not associate with people like Mr. Perce. And when he is in a public domain as he was in this incident, I have the right to have the expectation that other adults conduct themselves in a manner that will not poorly influence my family. Good, kind, decent people have rights too. Mr. Perce went looking to stir up a fight and he got exactly what he went looking for. Maybe next time he should pick a different costume and shut his mouth!

    February 28, 2012 at 12:22 pm |
    • Joe T.

      So free speech is okay until that speech conflicts with your thinking? Good to know.

      February 28, 2012 at 12:23 pm |
    • Tom Leykis

      and you would be wrong, d o uche nozzle. Assault is assault. Try staying logically and intellectually honest and view the Skokie, Illinois Nazi case in re 1st Amendment ruling from the Supreme Court in the 1970's, tool.

      February 28, 2012 at 12:25 pm |
    • Joe T.

      I just want to say wisdomseeker, that your comment made me laugh... based on the idiocy of it. "Free speech is okay for religious people who want to shove their religion down your throat, but if you say something bad about religion, you deserve to get beat up!"

      February 28, 2012 at 12:25 pm |
    • Lucifer's Evil Twin

      "The athiests, the bullies, all the mean people" – interesting, very interesting. I think your choice of words says alot about who you are. The fact that you lump atheists together with bullies and "mean people' just shows how narrow-minded and self-righteous you are. "All christians are narrow-minded, trailer park white trash." <- see that? Sucks doesn't it?

      February 28, 2012 at 12:35 pm |
    • W247

      Thank you Wisdomseeker for your thoughts. I truly do appreciate your words.

      February 28, 2012 at 4:36 pm |
  3. MikeB

    It is a certainty that freedom of speech can be abused and morf into harassment. It is also easy to defend yourself against finger pointing because of this freedom.
    I support freedom of speech.
    I do not support anything that looks like harassment or just making fun of someone and certainly not their religion.
    When that harassment comes back to you, you don't find it funny or okay.
    When a person shoots-off their mouth, it's not what you think about yourself, it's what everyone else thinks that counts.

    February 28, 2012 at 12:21 pm |
    • Jimbo

      "I do not support anything that looks like harassment or just making fun of someone and certainly not their religion."

      Mike, you are totally 100% incorrect. People can make fun of people and their religion to the greatest extent possible and it is totally legal and will always be. You do not seem like a very bright person to me, you seem like you would like to impose sharia law in the US. That is pretty much what you are saying.

      February 28, 2012 at 12:25 pm |
  4. ThoughtProcess

    The judge ruled based on the lack of evidence and nothing more. While the story mentions another atheist and camera man, they were not presented in the trial as witnesses and the video is very inconclusive. As a SEPARATE issue, the judge made a statement to the atheist in his ruling. For those who are bothered by the judge's statement, isn't he exercising HIS freedom of speech? Why exactly are you upset that the judge exercised his freedom of speech to voice his opinion having nothing to do with the ruling?

    February 28, 2012 at 12:20 pm |
    • Tom Leykis

      Let me clue you in, wingnut. The Judge DOESN'T have a 1st Amendment privelage as a judge. He's a public servant. He must enforce the law, end of story. I can assure you he won't be a judge much longer as the public won't tolerate actions which are inconsistent with enforcing the law and him inflecting his opinions on religion on the law.

      February 28, 2012 at 12:27 pm |
    • umm

      So, the thing is while a judge has freedom of speech when he's not making judgement. Telling someone that he doesn't think freedom of speech is a silly interpretation and not exactly how that was supposed to work. He's not there to say what he thinks is in bad taste.

      February 28, 2012 at 12:34 pm |
  5. Dano Boogie

    This story is a prime example of asking for it and getting it and then crying about it. If this ruling was about lack of evidence this a a non-story.

    February 28, 2012 at 12:20 pm |
  6. tekstep1

    This case will totally lose on appeal.

    February 28, 2012 at 12:18 pm |
    • Dano Boogie

      How can this be appealed? The judge ruled, case is over.

      February 28, 2012 at 12:22 pm |
    • mike

      what appeal? there was never a verdict. the charge was dismissed for lack of evidence. sorry, no appeal

      February 28, 2012 at 12:30 pm |
  7. jesus is chinese

    the judge bases his own life on a myth but bases court decisions on evidence.
    get the koran and bible thumper OUT of the state.

    February 28, 2012 at 12:18 pm |
  8. JAB62

    This seems minor when compared to the Westboro Baptist idiots. Probably because there's no anti-patriotism theme here. I don't take offense when someone pretends to ba a green zombie muhammed. Sounds like next haloween's big hit.

    February 28, 2012 at 12:18 pm |
  9. Salero 21

    "Hey, he is attacking me!" But then there were no eye witnesses or testimony to corroborate or support the allegations. So the case came down to: I say, he says.

    However this judge proves the damaged that War and Military service can inflict on the mind and souls of men. The Military way of Life is more like a Fascist way of Life. As a Vet myself, I can see how this Judge is still in that mind set. He needs Help desperately to make the transition back into Civilian Life. That's why I think he made some of those statements.

    February 28, 2012 at 12:17 pm |
  10. Zube

    What's so confusing? If it was any muslim standing there degrading christianity I am pretty sure there would be a big ordeal on national news, on top of that he would be attacked as well, yes you have a right to speech but everyone knows the truth, everyone knows there going to get some kid of attention if they provoke a religion's law being shown broken. This country is full of hypocricy. The founding fathers owned slaves when they tried abolishing it, Christopher Columbus killed and anialated millions of natives being on the land FIRST. Now that I think of it, this country is the world's BIGGEST terroist, you don't walk into any country and expect them not to rebel, this includes showing a biast opionion, why provoke them? You just had to wear that costume on halloween? LEAVE THEM ALONE, and you'll get your peace, stop having soldiers die everyday in the middle east for no reason. Reconstruction my ASS.

    February 28, 2012 at 12:17 pm |
    • Heroicslug

      Pfft no they'd (the MSM) probably go on and on about how brave he is and how everyone who doesn't think so is a racist.

      February 28, 2012 at 12:21 pm |
  11. fred

    Atheists take note of the difference between Christians and Muslims. Chirstians did not stike out against the atheist in a dead pope outfit. Contrary to the atheist cry of big bad Christians blocking anyones rights we are peaceful and tollerant.

    February 28, 2012 at 12:17 pm |
    • Cedar Rapids

      You think there would be no response from christians to that scenario huh?

      February 28, 2012 at 12:20 pm |
    • Salero 21

      You really don't know Roman-catholics well. Try that or anything similar in some Catholic dominated countries like Spain, Italy or Mexico and then come back and tell us what happened.

      February 28, 2012 at 12:26 pm |
    • fred

      Salero 21
      The Chirstians did nothing to the atheist playing Zombie Pope as the article stated. Perhaps in Spain Salero you are correct but in the U.S. tax payer dollars fund art projects where Christ is put on cross upside down in a vat of urine and the virgin Mary is hung with cow dung splater on her. Our liberal politicians tax Christians hard earned money to pay for that nonsense. Not much said only a whimper here and there,

      February 29, 2012 at 1:29 am |
  12. Tom from Atlanta

    This judge has a religious bias where any the rights of a believer of any religion has more rights than a nonbeliever. He should be removed from the bench.

    February 28, 2012 at 12:16 pm |
  13. Hypatia

    Sounds like this judge is in for a little more scrutiny of his bad judgment than he bargained for. Too bad. Assault is NEVER ok for any reason except self-defense. It doesn't matter what or whose religion, politics, haircolor, or celebrity fave is being pilloried. This is the same mindset that deems murderous riots for a book burning acceptable. Shame on this judge!

    February 28, 2012 at 12:16 pm |
    • Heroicslug

      I thought you were killed by that guy who eventually became a saint? Cicero?

      You were booklearnin' too much, if I recall correctly.

      Carl taught me so many things. 🙂

      February 28, 2012 at 12:24 pm |
  14. shamdog

    If there were no witnesses and no evidence to support the assault charges, I can understand dismissing the case. However, the judge was ABSOLUTELY wrong in stating the freedom of speech doesn't cover a halloween costume. Was the costume insensitive? Sure. Does that mean he deserved to get beaten? No way. Perhaps the judge thought the assailant was exercising his free speech by attacking someone who offended him. Maybe I'll go to that parade next halloween as a pregnant nun and see if I get attacked by a Christian.

    February 28, 2012 at 12:16 pm |
  15. SeriouslyBud

    Good for the judge!!! He didn't get caught up in anti-Muslim baloney, he made a decision based on the merits of the case. The burden of proof is on the prosecutors, not the defendant or does that only apply to Christians and Caucasians? And just as a side note, the material he was carrying was hateful in nature, would anyone in their right mind complain about an African American kicking the snot out of some dope at a Klan rally?

    February 28, 2012 at 12:15 pm |
    • Sheepleherder

      Good example.

      February 28, 2012 at 12:16 pm |
    • shamdog

      I wouldn't complain about it, but that wouldn't protect him from assault charges.

      February 28, 2012 at 12:19 pm |
    • BRC

      Actually yes, they would. It has been repeatedly upheld in the courts that even though it is a worthless ignorant hateful stain on this nation and our history, the Klan is legal, its existence and expression of its beliefs is protected, and as long as they don't commit or DIRECTLY CALL OUT for acts of violence, there's nothing anyone can do about it.

      So yes, if there was a Klan rally, and someone starting beating the crap out of one of them, the person who started the fight is going to jail, doesn't matter what their race is.

      February 28, 2012 at 12:21 pm |
    • SeriouslyBud

      If he gets caught he is going to jail definitely. If I see it am I going to testify against the guy in court, I don't know, my memory isn't so good some times. What were we talking about....

      February 28, 2012 at 12:25 pm |
    • TS

      >>"anyone in their right mind complain about an African American kicking the snot out of some dope at a Klan rally"

      From personal opinion? No. However – if the Klan rally is legally held, then anyone attacking any of the participants should be arrested for assault.

      Setting precedent that we are allowed to physically assault those who offend us is extremely dangerous. Even when popular opinion agrees with the attacker – it is *still* illegal.

      February 28, 2012 at 12:29 pm |
  16. ART

    Personally I think the best place for someone like Hitchens is in the grave, really a carpenter from two thousand years ago.

    February 28, 2012 at 12:14 pm |
  17. Sheepleherder

    Have any of you actually read the 1st amendment? This issue had zero to do with "freedom of speech". This was a simple matter of a CLAIMED assault, with no witness or proof as to which one did what to who. Just because one of them happened to be Muslim, you all get bent out of shape about what?? One moron trying to insult a group of people and perhaps getting thumped because of it. I'm surprised the guy dressed as the Pope didn't take a few licks also.

    February 28, 2012 at 12:14 pm |
    • Jimbo

      The judge turned it into a 1st admendment issue himself when he decided it was a good idea to lecture the man on his freedom of speech rights. If the man was not at an athiest gathering I bet he would have not recieved the same lecture, agree?

      February 28, 2012 at 12:18 pm |
    • Lazlo

      Did you bother to read the the facts of the case? The judge, who may not be biased towards muslims but seems clearly to be biased against atheists (a question CNN should have asked him), did not allow the 3 witnesses to testify!

      February 28, 2012 at 12:20 pm |
  18. Paulwisc

    Of course people should be free to express their opinions, but if you deliberately intend to provoke other groups, you have to accept the consequences of your actions. If there had been proof enough, yes, the Muslim guy should have been convicted (and given a very light sentence), but the proof wasn't there. The atheist is lucky he was not seriously injured and he is a slimy bigot, in my opinion.

    February 28, 2012 at 12:14 pm |
  19. Geezer

    The truth is that relgious morons are afraid of atheism because we acknowledge the non existing and that religious texts are nothing but fairy tales.

    February 28, 2012 at 12:14 pm |
    • SeriouslyBud

      So I guess I'm missing what exactly it is you think spiritual people fear, and what research your position is based on. Based on the way you presented your argument, I'm guessing College Graduate isn't anywhere on your resume.

      February 28, 2012 at 12:20 pm |
    • Jackson Spade

      I love your "rational"....but could you prove to me that it doesn't exist? Show me the infallible truth behind your tired comment and then ill have respect for you. If you can't...than you are the moron my friend.

      February 28, 2012 at 12:26 pm |
  20. John

    This judge will change his "thinking" once HE is attacked by the idiot-extremist Muslims! Once they put a "fatwa" out on him for "thinking" about "disrespecting" their imaginary "Mohammed", then it will be a different ruling! This case shows how pathetically STUPID religion is, and from the judge's perspective, how IDIOTS like him are the BASIS of that stupidity. As for the Muslim: I think a platoon of atheists need to dress as Mohammed, and burn the Koran on a daily basis in front of you till you leave the USA! Screw you, your imaginary deity, and your worthless religion!

    February 28, 2012 at 12:14 pm |
    • Paulwisc

      Ignorance and bigotry speaks. And not well or logically.

      February 28, 2012 at 12:16 pm |
    • SeriouslyBud

      Dude, two suggestions for you.

      1) Psychiatric care.

      2) Decaf....

      February 28, 2012 at 12:22 pm |
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