There is a surprising story out of Mechanicsburg, Pennsylvania that seems the perfect storm of religious tensions. You begin with Ernie Perce, an atheist who marched as a zombie Mohammad in the Mechanicsburg Halloween parade. Then you add Talaag Elbayomy, a Muslim who stepped off a curb and reportedly attacked Perce for insulting the Prophet. Then you have a judge (Judge Mark Martin) who threw out the criminal charges against Elbayomy and ridiculed the victim, Perce. The Judge identifies himself as a Muslim and says that Perce conduct is not what the First Amendment is supposed to protect. [UPDATE: The judge says he is not a Muslim despite what is heard by most listeners on the tape. That being the case, the criticism of the comments remains.] [UPDATE2: Perce has responded to our blog and denied many of the factual representations made by Judge Martin].
Perce is the American Atheists’ Pennsylvania State Director and marched with other atheists, including one dressed as a creepy Pope. Here is the tape of the incident:
Perce says that Elbayomy grabbed him and tried to take his sign. Elbayomy was at the parade with his wife and children and said that he felt he had to act in the face of the insult. The officer at the scene, Sgt. Brian Curtis, correctly concluded that Perce was engaged in a lawful, first amendment activity. He therefore charged Elbayomy. While it looks like an assault, he was only charged with harassment.
The case, however, then went to District Judge Mark Martin who not only threw out the charge of harassment but ridiculed Perce as a “doofus.” He also proceeds to not only give an account of his own feelings (and say that he was offended personally by Perce’s action) but suggests that Elbayomy was just protecting his “culture.” The judge not only points to the Koran in the courtroom but his time in Muslim countries as relevant to his deliberations. Putting aside the problem of ruling in a case where you admit you have strong personal feelings, the lecture given on the first amendment is perfectly grotesque from a civil liberties perspective.
Here is part of the hearing transcript:
Well, having had the benefit of having spent over two-and-a-half years in predominantly Muslim countries, I think I know a little bit about the faith of Islam. In fact, I have a copy of the Quran here, and I would challenge you, Sir, to show me where it says in the Quran that Muhammad arose and walked among the dead. I think you misinterpreted a couple of things. So before you start mocking somebody else’s religion, you might want to find out a little more about it. It kind of makes you look like a doofus. …
In many other Muslim-speaking countries, err, excuse me, many Arabic-speaking countries, predominantly Muslim, something like this is definitely against the law there, in their society. In fact, it could be punished by death, and frequently is, in their society.
Here in our society, we have a Constitution that gives us many rights, specifically First Amendment rights. It’s unfortunate that some people use the First Amendment to deliberately provoke others. I don’t think that’s what our forefathers intended. I think our forefathers intended to use the First Amendment so we can speak with our mind, not to piss off other people and cultures – which is what you did.
I don’t think you’re aware, Sir, there’s a big difference between how Americans practice Christianity – I understand you’re an atheist – but see Islam is not just a religion. It’s their culture, their culture, their very essence, their very being. They pray five times a day toward Mecca. To be a good Muslim before you die, you have to make a pilgrimage to Mecca, unless you’re otherwise told you cannot because you’re too ill, too elderly, whatever, but you must make the attempt. Their greeting is ‘Salam alaikum, wa-laikum as-Salam,’ uh, ‘May God be with you.’
Whenever it is very common, their language, when they’re speaking to each other, it’s very common for them to say, uh, Allah willing, this will happen. It’s, they’re so immersed in it. And what you’ve done is, you’ve completely trashed their essence, their being. They find it very, very, very offensive. I’m a Muslim. I find it offensive. I find what’s on the other side of this [sign] very offensive. But you have that right, but you are way outside your bounds of First Amendment rights. …
I’ve spent about seven years living in other countries. When we go to other countries, it’s not uncommon for people to refer to us as ‘ugly Americans.’ This is why we hear it referred to as ‘ugly Americans,’ because we’re so concerned about our own rights, we don’t care about other people’s rights. As long as we get our say, but we don’t care about the other people’s say.
The judge’s distorted view of the first amendment was magnified by Elbayomy’s counsel, R. Mark Thomas who called this lecture “a good dressing down by the judge. The so-called victim was the antagonist and we introduced evidence that clearly showed his attitude toward Muslims. The judge didn’t do anything I wouldn’t have done if I was in that position.”
I fail to see the relevance of the victim’s attitude toward Muslims or religion generally. He had a protected right to walk in the parade and not be assaulted for his views. While the judge laments that “[i]t’s unfortunate that some people use the First Amendment to deliberately provoke others,” that is precisely what the Framers had in mind if Thomas Paine is any measure.
Notably, reports indicate that Elbayomy called police because he thought it was a crime to be disrespectful to Muhammed. The judge appears to reference this by noting that in some countries you can be put to death for such an offense. Those countries are called oppressive countries. This is a free country where it is not a crime to insult someone’s religion — despite a counter-trend in some Western countries.
I also do not see how the judge believes that he has the authority to tell a religious critic that “before you start mocking somebody else’s religion, you might want to find out a little more about it.” Let alone call a person a “doofus” because he opposes religion.
To make matters worse, the judge is reportedly threatening Perce with contempt for posting the audio of the hearing.
The reference to the cultural motivations for assaulting Perce seems to raise a type of cultural defense. I have spent years discussing this issue with state and federal judges on the proper role of culture in criminal and civil cases. This is not a case where I would view that defense as properly raised. There are certainly constitutional (and yes cultural) norms that must be accepted when joining this Republic. One is a commitment to free speech. If culture could trump free speech, the country would become the amalgamation of all extrinsic cultures — protecting no one by protecting everyone’s impulses. Those countries referenced by the court took a different path — a path away from civil liberties and toward religious orthodoxy. It is a poor example to raise except as an example of what we are not. The fact that this man may have formed his views in such an oppressive environment does not excuse his forcing others to adhere to his religious sentiments.
Martin’s comments also heighten concerns over the growing trend toward criminalizing anti-religious speech in the use of such standards as the Brandenburg test, a position supported by the Obama Administration.
There are legitimate uses of the culture defense. However, when it comes to free speech, that is not just our controlling constitutional right but the touchstone of our culture.
I can understand the judge’s claims of conflicting testimony on the crime –though it seems to be that the officer’s testimony and the tape would resolve those doubts. However, I view this as an extremely troubling case that raises serious questions of judicial temperament, if not misconduct.