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. What happens to the police report?

    Does anyone know what is the value of the police report at the crime scene..in this case assault scene ie., harassment scene?

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

    As an attorney, I do not see how there is not enough evidence to get past a dismissal stage. You would have the video that shows an altercation occurred and yes, you have direct testimony from the victim. There is enough there for a jury to convict on. Also, his remark that in muslim countries he could be executed for this – he was not in their country, but in the U.S.A. where free speech is protected, even for corporations.

    February 28, 2012 at 12:29 pm |
    • Dan

      Yep, clear overstep by the judge here. One that will not stand up if challenged.

      February 28, 2012 at 12:31 pm |
    • Nobody N. Particular

      Bart, as an attorney you should know the difference between a civil and criminal action. In this case the judge was dismissing the civil case that Mr Perce brought against Mr Elbayomy for harrassment; the judge's logic being, that you cannot incite others with inflamatory actions (or words) then sue because of their reaction. There may still be some criminal proceeding still pending against Mr Elbayomy related to the assault, hopefully that will not be dismissed as Mr Elbayomy needs to learn that two wrongs don't make a right.

      February 28, 2012 at 12:41 pm |
  3. Dan

    Awesome! This judge just made it OK to beat the tar out of those Westboro baptist fools protesting at military funerals.

    February 28, 2012 at 12:29 pm |
    • justageek

      No he didn't.

      February 28, 2012 at 12:43 pm |
    • Nobody N. Particular

      No Dan, he did not say that, his ruling (as it would relate to Westboro), Westboro couldn't sue you for protesting them as harrassment. He said NOTHING about any pending assault related charges which could still be faced by Mr Elbayomy. Keep in mind these are TWO different issues, on relates to provoking others then suing them and the other deals with criminal assault.

      February 28, 2012 at 12:47 pm |
  4. Duane

    This judge has no right to be on the bench. A judge is supposed to be impartial and follow the law, not worry about what Muslims think across the sea. If we take this "bury our head in the sand" approach we might as well give up all our rights today, grow beards and start covering up our women and take to jihad.

    February 28, 2012 at 12:28 pm |
    • justageek

      He did follow the law. He followed the part of innocent until proven guilty. If I am ever in a court for some reason I sure do want the judge to be 100% sure before he convicts me. Pretty sure or I think I'm sure doesn't cut it.

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

    Funny how people skip over why the judge says he dismissed the case and go straight for free speech and such. As the judge said – 'there was no other evidence or eyewitness testimony to prove that Elbayomy had harassed or touched the alleged victim'. If no one was willing to say what happened then it is hard to really prove who did what. Where was Ernies bestest buddy dressed like the Pope for the trial?

    And as far as free speech goes it is just like anything else we're taught from the time we're kids or at least most of us are even if it is through trial and error...just because you can do something doesn't mean you should. Ernie is a goofball who is no different than a radical religious freak who likes to incite just for the fun of it.

    February 28, 2012 at 12:28 pm |
    • Jon

      Sorry Dude. The defense lawyer admitted that the action of the Atheist provoked his client's reaction. The defense lawyer admitted that his client did the physical actions that were claimed - there was nothing to dispute. This judge is disgusting and should not be sitting on the bench. How do these sorts of judges get fired? There needs to be a movement to kick this guy out.

      February 28, 2012 at 12:33 pm |
    • mb

      You are so wrong. The First Amendment is there TO protect speech that is even the most offensive. That was the main point. Would you want to have the government dictating what is considered offensive? The big point in this case is the Muslim person actually physically attacked the other person and there WAS video and evidence and a testimony that the judge threw out. This judge should be thrown off the bench.

      February 28, 2012 at 12:37 pm |
    • justageek

      And the reaction he admitted to was grabbing the sign...nothing else.

      February 28, 2012 at 12:38 pm |
    • justageek

      "there WAS video and evidence and a testimony that the judge threw out" – Please direct me to that video because the only one I have seen on youtube does not show any actual assault.

      February 28, 2012 at 12:41 pm |
    • justageek

      "The First Amendment is there TO protect speech that is even the most offensive" – Of course it is. I never said it wasn't. Just saying prudence is a good thing sometimes.

      February 28, 2012 at 12:42 pm |
  6. Um

    Absolutely wrong. The KKK is 100% allowed to march in full regalia shouting anti n*** slogans and the first ammendment right protects them from assault. Their marches certainly are hate speech. And it is 100% protected.

    February 28, 2012 at 12:28 pm |
  7. James

    If you can't provide proof of an assault while video is recording the incedent then you are an idiot to bring it to court. It doesn't matter what the judge says about it at this point, its just an opinion... and a valid opinion.

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

      The video was pointed the wrong way. But I am sure crimes are committed without video evidence and have gone to trial. Where are all the witnesses at this "Parade"? Too afraid to stand up and speak? Or were their testimonies dismissed?

      February 28, 2012 at 12:31 pm |
    • James

      The atheist is dressed up and putting on a performance. If you listen to the his voice in the video he never even changes his tone. It is all a little staged if you ask me.

      February 28, 2012 at 12:50 pm |
  8. Naija

    The funny thing is Muslims actually respect Jesus Christ

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

      What is so funny about it?

      February 28, 2012 at 12:32 pm |
  9. Patchw3rk

    "The judge went on to point out that in many Muslim countries, ridiculing Mohammed could warrant the death penalty under Islamic law."

    Why is Islamic law relevant in an American court? I think it is fine if this case was thrown out for lack of evidence. I wonder, however, if Talaag Elbayomy denied grabbing him and choking him. That seems relevant to me, yet it was not mentioned in this article.

    In my view Perce did have the right to do what he did (whether I personally agree with his actions or not) and Talaag Elbayomy should be punished if he did in deed attack Perce. The judge's job is to rule and comment on the law, not to tell Perce what his personal feelings are. Therefore, his chastisement of Perce was out of line in my opinion.

    February 28, 2012 at 12:27 pm |
  10. MandoZink

    Does this ruling open the door for retaliating against the Westboro Baptist Church?

    February 28, 2012 at 12:27 pm |
    • Patchw3rk

      Good question. I was thinking about the similarities between the Westboro Baptist Church and this case myself.

      February 28, 2012 at 12:29 pm |
    • Dan. M

      Yes, it does.

      But there has to be specific intent. The Judge ruled in this case (listen to the recording at youtube) that attacking someone with the intent of harassing, annoying or alarming" is ILLEGAL. However, as in this case, attacking someone solely to "negate an offensive situation" is acceptable.

      Go listen to the recording, that is what the judge said (and what CNN doesn't bother to mention.) In other words, the judge acknowledged the attack, but then justified it.

      So, attack anyone who offends you, just make certain you claim you were just "negating an offensive situation" and did not intend to harass or annoy the victim.

      February 28, 2012 at 12:36 pm |
  11. Marcus

    Does this set the precedent that anytime someone says something offensive to my sensibilities or beliefs I can assault them? This should make all of these anti-gay protests more exciting... Heck, maybe one of those kids in Cahrdon High School said something religiously offensive to TJ Lane.. so we shoud let him go.

    This judge missed the point.. he didnt "side" with Islam.. he sided with "Religion" against someone who spoke their mind against it.

    February 28, 2012 at 12:27 pm |
  12. Rob

    Hmm....maybe the defendent and judge should both be charged together?

    February 28, 2012 at 12:26 pm |
  13. Anon

    Alright, since I find Islam offensive, I have the right to firebomb a mosque according to the judge, because hey, they used their freedom of speech to offend me, I have the right to attack them.
    It is this kind of thinking that causes lynchings. The judge should be disbarred

    February 28, 2012 at 12:26 pm |
  14. Brian

    Freedom of speech is not meant to protect speech that people like or agree with. It is meant to protect speech that you do not like or find offensive.

    February 28, 2012 at 12:26 pm |
  15. Wonderfool

    The judge is wrong, period. If one wants to defame Mohammed, he should be free to do so in the US or any country that proclaims right to free speech (unlike India where there is free speech as along as you do not say anything that hurts some people's feelings). Martin Scorcese made a movie The Last Temptation of Christ that showed Christ as having male passion, there were protests in New York where it was shown but no riots or attacks. If Muslims want to stay in the US, they must accept US laws not what happens in the Muslim countries. No wonder some states are passing laws that prohibit Sharia references. The judges ruling is on a slippery slope that some people may support passing anti-Sharia law.

    February 28, 2012 at 12:25 pm |
  16. CNNuthin

    If the evidence was not enough to prove guilt, then that's fine. Hard to figure that at a parade, there would not be enough witnesses, but if that is the ruling, fine. But the larger issue still needs to be addressed. We are afraid of retaliation from a certain faith. Our judges, reporters, and anyone who will get noticed are afraid that they are going to get revenge taken on them if they do not defend this as "Cultural" attack. Physical Assault is a violent assault. Religious Assault is embarrassing, but not necessarily violent. And fear is fear. If I were to make a ascii stickfigure on here and have an arrow pointed at it saying it is the "Prophet", my post would get rejected. Why? Fear. Fear we might offend someone who is going to retaliate based on beliefs and use that as a defense. Sorry if our American Laws and someone's Religious Law contradict. But we are in America and as such, no one should have a right to put their hands on anyone else without permission.

    February 28, 2012 at 12:25 pm |
  17. lance corporal

    I got arrested once for just getting in the face (not assaulting) an anti abortion protester who was obviously provoking me and my FAMILY outside of our UU church, there is a clear bias against atheists or folks outside the norm

    February 28, 2012 at 12:24 pm |
    • Fallacy Spotting 101

      Root post is an example of an argument based on anecdotal evidence.


      February 28, 2012 at 12:29 pm |
  18. DamianKnight

    Gotta go with the atheist on this one. Just because he wants to make a mockery of Islam doesn't mean he should get physically assaulted. His satire is protected by the First Amendment.

    February 28, 2012 at 12:23 pm |
  19. CaptianObvious

    As a lawyer with two law degrees, it is clear the Judge in this case was spot on. The actions of the atheists are textbook definition "hate speech" and are NOT protected under the 1st Amendment. What the atheist did in this case is no different than if a person were to March in a parade dressed as a Klu Klux Clan with a sign saying "all ******* are stup.id mindless monkeys."

    Hate speech and intolerance against religion is just as ugly and disgusting as hate speech and intolerence against gener, race, or national origin. Our laws were not designed to protect hate.

    February 28, 2012 at 12:23 pm |
    • DamianKnight

      With all due respect, and since you are a lawyer, I'll ask this quest. How then do the Ku Klux Klan continue to have rallies that are considered free speech? Their vitriol is obviously "hate speech."

      What about Westboro Baptist Church? Similar to the above. Interested to hear your answer.

      February 28, 2012 at 12:29 pm |
    • yeahalright

      Have you not been paying attention while you were getting those two law degrees? Klan rallies have been protected for years. Just last year the losers at that gay-hating church were protected. Someone saying something offensive does not grant you the right to physically attack them.

      February 28, 2012 at 12:30 pm |
    • Jimbo

      Then why has the West Baptist church been able to do what they do for so long and they have been to the supreme court? You are not to Obvious mr. Captian Obvious, I think it's obvious that you have not been to law school. Go such a Jesus coch you coch suckr.

      February 28, 2012 at 12:30 pm |
    • robert

      So let me get this straight; you are "free" to speak your mind as long as you don't offend. Seems you and me have a different meaning for the word "free". Should the first amendment be changed to the state has the right to deprive anyone of the right to free speech if said speech offends anyone, particularly the state or the church? Seems like we lost the 2nd world war after all.

      February 28, 2012 at 12:32 pm |
    • Wonderfool

      May be you should go back to UN-LAW college and give back your two law degrees. You may have studied law but I don't think you have really learned law. In this country, it is legal to say that Christ's birth is not immaculate and not get assaulted, It is legal to say Moses was a fake and made up figure and not get assaulted. It is OK to make fun of Hindu gods and not get assaullted. Are we giving muslims any special rights?

      February 28, 2012 at 12:32 pm |
    • Lydia

      Um, from another lawyer, NO. For the sake of argument, let's say it is pure hate speech. Hate speech may not be protected speech– that only means that the goverment can regulate it (i.e., you don't have a pure First Amendment right to use it). It doesn't mean someone has the "right" to assault YOU for using it. Where did you get your two law degrees? On the Internet?

      February 28, 2012 at 12:35 pm |
    • Yeah right

      You're a lawyer? Um...what about Westboro Baptist's slogans? By your reasoning THAT wouldn't be covered under the first amendment and it would be hate speech. I call BS on your "law degrees".

      February 28, 2012 at 12:37 pm |
    • BZ

      You must not be a very good lawyer

      February 28, 2012 at 12:39 pm |
    • gggg

      I have to disagree. There are thousands of kids out there wearing "zombie Jesus" t-shirts. You're saying that is hate speech? Or is it only hate speech if it is against Muslims? To me Jesus, Mohammad and others were people with no holiness attached. If I put that fact (to me) on a placard and walk with it, I'm inviting someone to beat on me because their religious belief is different than mine? Assault is assault. Other than it being for my physical defense or another persons physical defense, it is a crime. Sharia law can not be used as a defense for anything in this country. If this works, the next guy could commit a murder and claim that it is required under Sharia law. We may claim that is not likely, but there was the "unlikely" case of a multiple honor murder in Canada as well. Whether or not we agree with the atheists provocations, we also have to send the message that if you want to live in this country you have to tolerant of everyone, even the idiots. Gotta go with the atheist on this.

      February 28, 2012 at 12:48 pm |
  20. MacBeth

    So wait-you lose your right to Freedom of Speech if you use it to directly antagonize others? Is that why the KKK is still allowed to march, and the Westboro Baptists can protect the funerals of dead soldiers? They're not antagonizing anyone, are they?? In other words, if you're antagonizing people in the name of religion, that's just fine. But if you antagonize people in the absence of a religion, people are free to beat you up? I didn't spend 11 years defending my country for this garbage. Freedom of speech does not just apply to people who believe in a higher power.

    February 28, 2012 at 12:23 pm |
    • MacBeth

      sorry for spelling error–PROTEST–not protect funerals.

      February 28, 2012 at 12:24 pm |
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