Judge In “Zombie Mohammed” Case (Reportedly) Responds

We have had a great deal of discussion about the controversy over the remarks of Judge Mark Martin of Mechanicsburg, Pennsylvania in the dismissal of a charge against Talaag Elbayomy, a Muslim who attacked an atheist Ernie Perce for insulting the Prophet. Perce was parading as a zombie Mohammad in the Mechanicsburg Halloween parade when Elbayomy allegedly grabbed him. Elbayomy was at the parade with his family. Yet, it was Perce who ultimately came into a tongue lashing from Martin. Martin has now reportedly responded with the message below. I am not sure how much it helps on the merits, but he does clarify a couple of points if this response (which has appeared on several sites) is genuine.

In the hearing over the harassment charge, Martin first dismisses the charge. In the hearing, Martin notes that the evidence of the victim is conflicted and that there is insufficient basis to sustain a criminal charge. While the arresting officer disagreed (and the video seems to show a case of assault rather than harassment), that is the role of a judge as an impartial court. Martin states that he does not believe that the incident occurred as described by Perce without more witnesses coming forward: “All that aside, I’ve got two sides (of a) story that are in conflict with each other. I can’t believe that if there was this kind of conflict going on in the middle of the street and somebody didn’t step forward sooner to try and intervene that the police officer on the bicycle didn’t stop and say, ‘Hey, let’s break this up.’”

Notably, however, Martin says that he didn’t doubt that the incident occurred and the defendant admitted that he acted in response to an insult to Islam. Yet, this is not viewed as sufficient to sustain a harassment charge. Yet, putting aside the merits of the dismissal, it is what followed that concerned many of us — a lecture on Islam and the first amendment. Martin suggests that free speech was not meant to protect conduct like Perce’s. The tape below includes such statements as:

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.

The veiled reference to Sharia law in this context was highly problematic. As I said earlier, those countries are examples not of some loosely fitting cultural defense but oppression and medieval justice. What is particularly disturbing, however, is Martin’s view of the first amendment.

In this statement, Martin denies being a Muslim. The tape appears to show him saying that he is, but he would know. In the end, the judge’s religion should never have been part of the proceeding to start with. Moreover, regardless of his religion, it is his legal views that seem grotesquely out of place.

Martin also denies threatening Perce with arrest for releasing the tape. He admits that he threatened to hold him in contempt and suggests that the controversy is proof that the rule not to publish the tapes is valid. However, while denying the issue about his faith, he does not question whether this is an accurate account of his statements on the first amendment.

This story certainly has legs. As you might imagine, the public is only getting the version of the story put out by the “victim” (the atheist). Many, many gross misrepresentations. Among them: I’m a Muslim, and that’s why I dismissed the harassment charge (Fact: if anyone cares, I’m actually Lutheran, and have been for at least 41 years).

I also supposedly called him and threatened to throw him in jail if he released the tapes he had made in the courtroom without my knowledge/permission (Fact: HE called ME and told me that he was ready to “go public” with the tapes and was wondering what the consequences would be; I advised him again to not disseminate the recording, and that I would consider contempt charges; he then replied that he was “willing to go to jail for (his) 1st amendment rights”- I never even uttered the word “jail” in that conversation).

He said that I kept a copy of the Quran on the bench (fact: I keep a Bible on the bench, but out of respect to people with faiths other than Christianity, I DO have a Quran on the bookcase BESIDE my bench, and am trying to acquire a Torah, Book of Mormon, Book of Confucius and any other artifacts which those with a faith might respect).

He claims that I’m biased towards Islam, apparently because he thinks I’m Muslim. In fact, those of you who know me, know that I’m an Army reservist with 27 years of service towards our country (and still serving). I’ve done one tour in Afghanistan, and two tours in Iraq, and am scheduled to return to Afghanistan for a year this summer. During my first tour in Iraq, I was ambushed once, attacked by a mob once, sniped at once, and rocketed, bombed, and mortared so many times that I honestly don’t know how many time I’ve been attacked. Presumably by Muslim insurgents. My point: if anyone SHOULD be biased towards Muslims, one would think it would be me. I’m not, however, because I personally know or have met many good, decent people who follow Islam, and I shouldn’t characterize the actions of those who tried to kill me as characterizations of all Muslims.

When I asked him why he dressed up as “Muhammad zombie,” he told me that it was because he was reflecting the Muslim belief that Muhammad rose from the dead, walked as a zombie, and then went to heaven. That was one of the reasons I tried to spend 6 whole minutes trying to explain and de-mystify Islam through my own knowledge, and in an attempt to prevent an incident like this recurring in my community. Unfortunately, the message was obviously not received in the vein that I had intended. And, in the interest of full disclosure, I did use the word “doofus,” but didn’t call him that directly; I said something akin to “ if you’re going to mock another religion or culture, you should check your facts, first- otherwise, you’ll look like a doofus.”;

In short, I based my decision on the fact that the Commonwealth failed to prove to me beyond a reasonable doubt that the charge was just; I didn’t doubt that an incident occurred, but I was basically presented only with the victim’s version, the defendant’s version, and a very intact Styrofoam sign that the victim was wearing and claimed that the defendant had used to choke him. There so many inconsistencies, that there was no way that I was going to find the defendant guilty.

A lesson learned here: there’s a very good reason for Rule 112 of Rules of Criminal Procedure- if someone makes an unauthorized recording in a Court not of Record, there’s no way to control how it might be manipulated later, and then passed off as the truth. We’ve received dozens upon dozens of phone calls, faxes, and e-mails. There are literally hundreds of not-so-nice posts all over the internet on at least 4 sites that have carried this story, mainly because I’ve been painted as a Muslim judge who didn’t recuse himself, and who’s trying to introduce Sharia law into Mechanicsburg.

In this case, the release of the tape would seem to have served the interests of justice in that the judge has some highly mistaken views about free speech. This purported statement from the judge does not question the accuracy for those statements on the first amendment. Moreover, with the guarantee of public hearings (limited in relatively rare cases), the public has a right to know about such controversial statements from individuals given judicial power.

83 thoughts on “Judge In “Zombie Mohammed” Case (Reportedly) Responds

  1. Raff.. I am with you to a point….I think the judge did what he did based upon the information/ indictment in front of him… People complain about judicial Activision….. But good points…..

  2. Why does the judge say that he SHOULD be biased against Muslims because he is a vet? As one vet to another, that is a dumbass thing to say.

  3. What’s that smell? Why . . . that’s Old Fashioned Bullshit! And here I am without a can of Old Fashioned Bullshit Repellent ™.

    I don’t buy a word of it.

    He got caught mangling the law. Which he does not address or deny. This is the only salient point.

  4. The Muslim complaining is wrong from the get go. His response is typical. The Judge was out of line with his last response against the one with an external costume.

  5. Is it normal for a judge to issue a moral lecture after making his ruling? I mean, I can’t see that it’s anything else, other than perhaps an attempt at justifying to himself something that he knows is wrong. In which case, he would have been better off just dismissing the case and moving on. I’m obviously not a lawyer: just an interested citizen. But, has the Judge Judy personality invaded the judiciary, or was it always there?

  6. He said “if I’m a muslim.”

    Seriously, you’re blowing this completely out of proportion. I have to ask if you’ve actually been in a courtroom? Those of us who practice law in a courtroom rather than in a classroom and on the internet know that judges ramble a lot. This judge is basically saying, “You were doing something that could have gotten you seriously hurt. Don’t do it again.”

    He did not actually make his ruling based on that rant. He made his ruling based on the fact that the plaintiff did not meet his burden.

    But hey, it got you on CNN! Now go jack up tuition on students again.

  7. “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.”

    He’s not saying that the first amendment doesn’t protect the conduct. He’s saying that being a jackass is still being a jackass even if your conduct is protected by the first amendment.
    It protects from government restraints, not someone calling you out on it.

    I highly doubt this guy is an originalist, so what the founders intended doesn’t matter. Second, even if he is, the context makes it clear that he wasn’t using intent in that manner.

  8. The article could be articulated better. It takes a second or third reading to understand the who. what, where, why and when of this article. Those are the elements of a journalistic story.

  9. I don’t think the US Constitution should be mis-construed to allow muslims to intefere with Americans rights, especially on freedom of speech. Political correctness has somehow taken the front seat to common sense. It is liberal thinking judges doing the driving.

  10. dont-tread . . . liberal judges? whats the color of the sky in your world? The Constitution has a very simple provision, its in the first amendment, that prevents not just Muslims but every religion from interfering with free speech among other things. There is a great movement currently going on to change that so certain brands of one certain strain of religion can do that & their fear is that they have not yet figured out how to not give that same advantage to every other sky pilot. Don’t want Sharia law in the US? Good, enforce the 1st amendment.

    As for not using the 1st for provocative speech (n above)? Then why have it at all? If the only speech that is protected is noncontroversial then there is no free speech at all. This is why the ACLU has fought for the rights of all Americans, even with agendas the ACLU opposes, to be allowed to express themselves. WHile it is true this expression can generate an unwanted response that is a separate issue and not the fault of the first amnd.

  11. Prof T, I must say I am a little disappointed you ran with this story without doing a bit of fact-checking first.

    Your only source was the YouTube video of a highly interested (and clearly somewhat fanatical) party. If you’re going to start “breaking” stories, as opposed to just commenting on ones already in the news, a modicum of journalistic effort would be desirable.

    Next time, call MSNBC and have them look into it for you, with the agreement you’ll be allowed to go on and do the commentary when they run the story. Alternately, try calling the judge yourself to confirm the facts of the case.

    A lot of (ongoing) confusion could have been avoided if you had just put a little bit of effort into verifying these facts before creating a nationwide internet “news” story that is doing little more than furthering the reputation of internet news as questionable/unreliable.

  12. RDD,

    I’m a little disappointed in you that you don’t think a judge displaying a fundamental lack of understanding of the 1st Amendment is newsworthy.

  13. Gene, it would have been much more newsworthy if the headline to the original story “Muslim Judge” [since updated] had been factually verified. That’s all I’m saying. The First Amendment issues raised by the Professor are clearly serious, and it is unfortunate that a judge (even at the district level) went on such a misguided rant. But the reason the story got so much play was clearly that the judge was alleged to be a Muslim. This is the kind of thing the writer of a news story should verify.

  14. RDD,

    A correction was made as more facts came to light; a common practice and evidenced by this updated paragraph from the original post.

    “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.]”

    The salient part of the story isn’t that the judge was a Muslim or a Lutheran, but rather that he didn’t understand the 1st Amendment basics as well as a 1L.

  15. My criticisms were of the Professor’s journalistic methods, not his legal analysis. We agree that the First Amendment issue is a serious one. I just lament that it is becoming “common practice” to run internet news without first making a serious effort to verify the facts (i.e. Joe Paterno death). Distinct issues, sorry for the confusion.

  16. Rules For Judging:

    Judging 101: You are never criticized for what you didn’t say in making a ruling. Make your ruling and then shut up.

    Judging 102; If you do decide to make a statement when ruling first see Rule 101.

    Judging 103: If after careful consideration of Rule 102 you still decide to make a statement try not to piss off the entire courtroon (and by extension the legislature) in your statement.

    Judging 104: If you do piss everybody off while ruling, NEVER EVER issue a clarifying statement which will increase the hole you’ve dug exponentially. The damage is already done and you’d best contact your old law partners about a job opening.

    Judging 105; After you’ve left the bench and are listening to a client drone on and on about some eggregious breach of justice in his traffic case, remember, with kind nostaligia, Rule 101.

  17. The costume and words Mr. Perce used can be easily interpreted as ‘fighting words’ with the sole purpose of insulting Muslims. His costume and the utterance of the phrase “I am Mohammed” can and did incite immediate breach of the peace. The US Supreme Court ruled 9-0 to limit free speech when it comes to fighting words back in 1942. Do you believe that Mr. Perce’s actions are really protected under the first amendment?

  18. @Dave,

    Absolutely protected. If the speech of Westboro (spelling?) Baptist Church is protected, then Perce’s certainly is. Whether it’s desirable to be drawing comparisons to WBC is another conversation altogether, but his speech is protected. There is no question.

  19. Yes. And not just by the Free Speech Clause, but by the Free Exercise and Establishment Clauses as well. You have a right to pick and practice your religion of choice in addition to being critical of other religions. You don’t have the right to force your religion upon others (including critics) by violence. That some practitioners of “Islam” (as well as some “Christians”) think that they have the right to beat their God into you if you don’t respect or practice their beliefs is going to put them against the civil prohibition of violence.

    If “your God” can’t take criticism, it isn’t much of a god. Or a petty jackass at best. God created the universe but can’t take criticism or a joke from humans? We don’t even fully understand gravity yet, something He allegedly made from scratch, but our criticisms and jokes somehow harm him? Please.

  20. Dave1, February 27, 2012 at 8:19 am

    The costume and words Mr. Perce used can be easily interpreted as ‘fighting words’ with the sole purpose of insulting Muslims.
    ———————————————–
    It was a HALLOWEEN costume.
    I dress up like a witch every year and have yet to be attacked by a cadre of Wiccans.

  21. Dave:

    Here’s the bottom line:

    The Defendant admitted he touched the Complainant in an offensive manner. He admitted that he did so intentionally and that the motive was his mistaken belief that the laws were the same here as in his homeland theocratic state with respect to depictions of the Prophet. The Complainant corroborated that version of events. Under what legal excuse would this not be battery? Fighting words? This is what the US Supreme Court says about fighting words: words likely to provoke the average person to retaliation and thereby cause a breach of the peace,

    Would the average person seeing the Complaint dressed as he was at a Halloween parade full of costumed figures be provoked into a physical assault? My reasoning and the events of that day tell me “no” since no others were so incensed. Given that, I think the Magistrate Judge got it wrong and he did so for all the wrong reasons.

  22. The muslim can dislike the costume all he wants. That’s his right.
    But when you TOUCH another person, without concent/permission,
    it is ASSAULT. Plain and simple.

    I know a guy who was having a disagreement with his girlfriend. He was trying to get her not to leave/storm off, to stay and talk it out…he was JUST standing in the doorway saying- don’t leave please. He NEVER touched her (and she never claimed that he did). She charged him with assault. It’s on his permanent record. Because he blocked the door with his arm.

  23. k:

    “Because he blocked the door with his arm.”

    Actually k that’s common law false imprisonment and not common law assault which places the victim in immediate and reasonable fear of offensive contact which could jepardize her safety. Some jurisdictions define assault more broadly but it doesn’t seem to have the classic elements in your scemario.

  24. I don’t CARE what takes place in Muslim countries. Taalag is in THIS country now and he’d better abide by OUR laws. If he can’t do that, then he needs to go back where he came from.
    And I don’t care that the judge is non-Muslim and a veteran. He is dead wrong about the 1st amendment. It is intended precisely to give us the right to “piss” other people off. That’s the whole problem with this political correctness BS; you’re not supposed to say anything that “offends” anyone. But that means virtually never saying anything about anything, because someone will always take offense to even the most benign remark.
    And finally, in the vein of PC, if we are so eager and willing to let other people’s customs and social norms trump our own, we will soon have no culture in this country.
    Sad to say, but I hope this guy doesn’t come back from his next tour; he can only do harm from the bench with his point of view.

  25. So, why was there not an assault charge (and only harassment)? Who is in charge of making the decisions as to what charges are brought – and why do we think assault was left off the table here?

  26. I see the logic of the Judge. The First Amendment has “limits”. For instance you can not go into a crowded room and scream fire. That would endanger the mass. Had this Atheist been dressed in a KKK uniform, the outcome would have likely been the same, or worse. Just because you have the opinion that Muslum’s are all EVIL, you should not provoke them in this manner. I know from my own personal feelings that had a person donned a costume showing Jesus in a disparaging manner, there would have been another assault.

  27. Jack E. Brown1, February 27, 2012 at 10:54 am

    I see the logic of the Judge. The First Amendment has “limits”. For instance you can not go into a crowded room and scream fire.
    ————————————————–
    My understanding is that you certainly can, and morally are obligated, to do just that….if there is an actual fire.

    don’t look now but your civil liberties are on fire….

  28. Jack E. Brown says: “I know from my own personal feelings that had a person donned a costume showing Jesus in a disparaging manner, there would have been another assault.”

    Could you explain to me why your beliefs are more important than someone else’s rights?

  29. Jack E. Brown1, February 27, 2012 at 10:54 am

    I see the logic of the Judge. The First Amendment has “limits”. For instance you can not go into a crowded room and scream fire. That would endanger the mass. Had this Atheist been dressed in a KKK uniform, the outcome would have likely been the same, or worse. Just because you have the opinion that Muslum’s are all EVIL, you should not provoke them in this manner. I know from my own personal feelings that had a person donned a costume showing Jesus in a disparaging manner, there would have been another assault.
    ————————————
    also;

    Who has the opinion that Muslims are all EVIL??????
    Is that what you think was going on? Maybe Mr. Perce was pointing out something a tad more earth-bound…ie: people come to this Country with respect for it and then unthinkingly or unknowingly behave in ways that change it into the very place they have fleed from. In this Country our LAW is that we don’t fight at the merest perceived provocation. We live above our gut. We respect other peoples beliefs but don’t neessarily share the belief. We don’t do Sharia law and we even have a separation of Church and State.
    The day that that is defeated is the day the Law becomes Sharia.

    Allso….can you quote where Muhammed says to act like a thug towards others….I can’t find it in my Quran….

  30. I am amazed how little the people commenting on this story know about the First Amendment! Why are people defending the attacker? The right of free speech is critical to our society; why do you wish to throw out freedom because someone is offended? That is absurd and will destroy the fabric of our society. Do you not understand what freedom is and how fragile it is? Once you start censoring the citizens you destroy freedom. This case and defending free speech is exactly what the founders of our country had in mind. Common sense lets us understand that freedom of speech must rule above our politically correct confusion regarding other cultures. How can you critique and defend democracy without free speech? I will spare you the definition of speech vs. “hate”. This is so clearly a case of speech and not hate that it takes total ignorance of US Supreme Court precedence to argue otherwise.

  31. “I see the logic of the Judge. The First Amendment has “limits”. For instance you can not go into a crowded room and scream fire. That would endanger the mass. ”

    Walking down the street dressed as a zombie is like yelling fire in a theater? Does the sun rise in the south and set in the north as well in your world? Your mistake is to confuse a legitimate fear, fire in a building, with your personal sensitivities to religion. No sane human being would cause a stamped because someone had a Halloween costume on in a Halloween parade! There is no danger to the public here! What you are really saying is that a rape victim “asked” for it because they were wearing a skirt. You are blaming the victim of crime by pointing to the rationalization for the criminal act of the defendant.

  32. I watched the video and my immediate reaction was that the ‘zombie’ was indeed a doofus. We’re not talking ‘ a bit silly’. We’re talking sub-juvenile offensive premium grade moronic.

    What was his point?
    Was this some noble speech is support of a social or political aim? – which would be the type of speech that I consider the Amendment was intended to cover – the sort of speech that would need protection to prevent a government from trying to suppress it.

    Someone wrote above: “We respect other peoples beliefs but don’t neessarily share the belief.”
    The zombie wasn’t part of that particular “we”. There was no respect in his actions or words. It was the polar opposite of respect.

    In a sane society, the incident could have been resolved by both parties realising that their actions were unacceptable.
    The cop to whom *both* of them took their complaints could have tried to sort it out on that basis.
    The judge should have been as hard on the objector as he was on the zombie. I don’t know if this happened. We may be just getting ‘edited highlights’.

    The judgement was not the thin edge of Sharia law.
    The judgement was the thin edge of “We respect other peoples beliefs”

    The incident did not seem to me to be worthy of a criminal record. Is a bone-headed technical application of law to human situations the reason for the huge prison population in the US?

  33. Sling:

    “The judgement was the thin edge of “We respect other peoples beliefs”

    *****************

    I’m glad Washington, Madison, Jefferson et als didn’t respect the beliefs of George III. Bottom line is that no one’s beliefs are entitled to respect absent some good reason for believing them. If I tell you I firmly believe your spouse is having an affair would you respect that if I told you it was based on some Sixth Century book’s nonsense? Well, it’s my belief isn’t it?

  34. I will restate my remark.

    We, [collectively as citizens of the United States] may not understand or even personally abide by or respect your beliefs but we recognize and have it instilled in our societal law by the *Constitution and (enforcement thereof), that we respect your right to have them and to speak of them.
    We are governed with separation between Church and State that allows us to exist within diversity and keeps us safe from the extremist impositions of Religion or a State that is changeable by process and is not Monarchial or police rule.

    *If this was not the case Muslims would, in all probability, not be welcome or even safe here. So I am hoping that we protect Mr. Elbayomy’s AND Mr. Percy’s rights. .

    re·spect/riˈspekt/

    Noun: A feeling of deep admiration for someone or something elicited by their abilities, qualities, or achievements.

    Verb: Admire (someone or something) deeply, as a result of their abilities, qualities, or achievements.

    Synonyms: noun. regard – esteem – reverence – deference – consideration

    verb. honour – honor – esteem – regard – venerate – revere

  35. “*If this was not the case Muslims would, in all probability, not be welcome or even safe here”
    Don’t limit it the Muslims?
    In Christian countries in the past Protestant has been unwelcome and unsafe from Catholic and v.v.
    Jews have been unsafe from both.
    Things seem to have settled down in most western countries that have varying constitutions (or none).

    Debates can get very unproductive once the dictionaries are opened. The same word can have a range different meanings. (examples above)

    I used the word “respect” in a comment above as I used it in a quote of someone else. I then continued to use it, but in a specific meaning.

    The word “respect” in the context of this discussion might be best defined as ‘absence of disrespect’ or perhaps better as ‘absence of insult’.
    In the context of this discussion, it certainly doesn’t have dictionary such as
    reverence – deference – venerate – revere.

    It’s not impossible that someone has a dictionary that defines ‘deference’ as ‘lack of insult’, but hey! :)

  36. “The word “respect” in the context of this discussion might be best defined as ‘absence of disrespect’ or perhaps better as ‘absence of insult’.”

    And how did the Muslim show respect to the Atheist? Why do you believe that the one deserves respect, but not the other? How did you make that judgment, and on what basis?

  37. Hedgehog

    To save you the trouble of reading my comments above, I’ll quote a relevant sentence.

    I wrote: “In a sane society, the incident could have been resolved by both parties realising that their actions were unacceptable.”

  38. In a sane society, people would realize respect is earned, not due.

    For example, I respect the rights of others to practice the religion of their choice because it’s the right thing to do in allowing them to practice free exercise as a part of their right of self determination and that is reflected in the wisdom of the 1st Amendment and the concept of the Rule of Law earned my respect. That doesn’t mean I have to respect their religion. Maybe their religion hasn’t done anything to earn my respect. Just so, I also have the 1st Amendment right to speak my mind about the subject (which I recognize and respect for similar reasons both in myself and in others). If somebody takes offense at what I say about their religion, they are free to offer a rebuttal. They are not free to attack me without suffering legal repercussions and possibly an ass beating administered in self-defense. For just as I am – and they are – free to exercise their religion of choice and express their opinions and free to do so without sacrificing my rights to be free from violence and act in self-defense. The unspoken corollaries of the Right to Free Speech is the Right to be Offended and the Right of Rebuttal, not the right to beat those who offend you.

  39. Disrespectful statements are not criminal because of the disrespect. For a sorry moment, in the Sedition act, that principle was not followed, and James Thomson Callender was convicted of disrespectful statements against John Adams. Jefferson, as president, pardoned Callender.

    Heresy is not a crime in the US.

  40. The most chilling thing is the judge raised the “mistake of law” defense (which is almost never applicable — and certainly not, here) in discussing the defendant’s mens rea. Judge Martin said the attacker could not have had a criminal intent to harass because he believed the victim — “Zombie Mohammed” — was breaking the law.

    That should stop everyone dead in his tracks.

    Just wait. The defenses of necessity and justification are coming next.

  41. –Trebuchet wrote: “In a sane society, the incident could have been resolved by both parties realising that their actions were unacceptable.”–

    Apparently you are the one who is not paying attention to your own posts. It does in deed take two parties to have a disagreement. But it only takes one to commit a violent act. Adults can have disagreements without committing violence on each other in the part of the world where I live.

    Some of the most hateful spew coming from any group in America comes from the Westboro Baptist Church (google is your friend). But, the various veterans and religious groups have decided not to retaliate against their hateful speech with violent actions – no matter what the provocation.

    There simply is no way to protect your sensibilities without restricting my rights, and vice versa. You have the right to speak. You do not have the guarantee that the speech of others will not offend you, nor do you have the right to retaliate with violence if it does. If you don’t like the speech, don’t listen to it. Go elsewhere. Do something else.

  42. The zombie is not being charged with either disrespect or heresy, so that is as it should be. The question is can this other person accost the zombie, whether he is, or is not, being disrespectful or committing heresy.

    The answer there seems pretty much – no.

    Aside from the claim that the prosecution failed to prove the acts beyond a reasonable doubt (wasn’t there a video?), the defense of “fighting words” shows the weakness in the “fighting words” line of thinking, and the associated cultural assumptions: what constitutes an instigation?

    I’d say relegate “fighting words” to the sentencing phase. Is there a case that establishes “fighting words”?

  43. The beauty of a court system is that is an opportunity for humans to examine the unique circumstances in a specific case – rather than have some system that mandated decisions based on a limited set of check-boxes based on the letter of a set of laws.

    It is open to a judge to send someone to prison and with a criminal record. The offence might have been slight and technical, but the record is as damming as for a far more serious offence.

    Take k’s comment above
    “I know a guy who was having a disagreement with his girlfriend. He was trying to get her not to leave/storm off, to stay and talk it out…he was JUST standing in the doorway saying- don’t leave please. He NEVER touched her (and she never claimed that he did). She charged him with assault. It’s on his permanent record. Because he blocked the door with his arm.”
    Mespo thought it more false imprisonment than assault.

    A judge might have looked at the particular incident and decided that
    1) A domestic dispute. Happens all the time. Both of them upset. Woman using the law to lash out at the guy. It’s over. No real case to answer
    or
    2) OK. He didn’t assault her. He blocked the door for 30 seconds – but technically that’s a criminal offence – so jail for you my man.

    In the zombie case, I think that the best result for society would be
    1) Elbayomy realises that he can’t take physical action in such a case. It doesn’t actually need a criminal conviction for him to take that in.
    2) Perce realises that whatever he was trying to achieve was not so vital that it outweighs the possible offence to others.
    Both would come out of it as better people. That’s what is important.

    I’d be fascinated to see what this judge would make of one of the more extreme Westboro Baptist Church stunts.

  44. “2) Perce realises that whatever he was trying to achieve was not so vital that it outweighs the possible offence to others.
    Both would come out of it as better people. That’s what is important.”

    No, what’s important is that the law is properly applied. Free speech may be some niggling little detail to you, but it is important enough that it was guaranteed in the very first amendment to the constitution. You don’t make someone a better person by trampling on their rights. In fact, we all come out the worse for it.

    “I’d be fascinated to see what this judge would make of one of the more extreme Westboro Baptist Church stunts.”

    What would be the point? WBC has a lawyer on staff (and in the family), and they’ve been down the road fairly often. They know what they can do and what they can’t. They also know what the other side can do.

  45. “A domestic dispute. Happens all the time. Both of them upset. Woman using the law to lash out at the guy. It’s over. No real case to answer”

    After giving this some thought, I find the idea that a judge would make a decision based on facts not presented in evidence, and based only on social class and sex, quite disturbing. If it were a man blocking a man, the consequences might be dire; especially in a state with Castle Doctrine with no duty to retreat. Given that, should the woman be treated differently? Not without denying her rights.

  46. What the First Amendment is lacking is just a few words:
    ” – but don’t be a dick about it”

    The intention of the Amendment is noble.
    ‘Being a dick’ under the protection of the Amendment is not noble.

    ‘Being a dick’ should not really be spoken of as if it were a noble “right”.
    ‘Being a dick’ is really just something that is ‘not against the law’

    There are many things that are ‘not against the law’ and yet are highly undesirable. Look at some of the activities of Wall St and where that got us.

    I’d be in the vanguard of a move to defend the rights of the trampled and oppressed.
    But – I can’t bring myself around to considering that a judge indicating that Perce was behaving like a doofus can be magicked into ‘trampling his rights’.
    The judge did not make an order forbidding Perce from being a doofus in the future.

    It’s the parents I blame. Where was his aged mother? Why didn’t she teach him not to be a dick when she had the chance?
    Just as well there;s a judge who can act in loco parentis and give him a good talking to.

  47. Rule 112: because it’s so much harder to backtrack when our bullshit is caught on tape.

    FUN FACT! If you lie in court, you go to jail for perjury. If a judge (or prosecutor for that matter) lies in court, he has sovereign immunity and can’t even be sued.

    So next time you’re asked by some wannabe priest in his ridiculous robes if you swear to tell the truth, the whole truth, and nothing but the truth, demand he do the same. Under penalty of perjury.

  48. FUN FACT! If you lie in court, you go to jail for perjury. If a judge (or prosecutor for that matter) lies in court, he has sovereign immunity and can’t even be sued.
    ============================
    I don’t think that this is always true…

  49. Sling – I think that your idea of adding the concept of “dick” into the first amendment is unlikely to gain a majority of the state legislatures, and I myself would oppose it as too vague.

    There are many actions that many people feel are wrong, but which are not illegal, and probably never will be made illegal. This is practical.

  50. The First Amendment does not protect all speech. The Supreme Court ruled in Chaplinsky v. New Hamshire that “There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”

  51. FWIW:
    1. In Pennsylvania district magistrates are locally elected and are not required to have been graduated from, or have attended, law school.

    2. In the realm of criminal law, PA district magistrates handle summary offenses (those acts below the category of misdemeanors or felonies.) Summary offenses punishable by less than a year in prison and/or by fine. Evidently that the county D.A. did not feel that Mr. Elbayomy’s alleged conduct rose to the level of either a misdemeanor or felony, otherwise Elbayomy would have been prosecuted by the D.A.’s office before a county judge ( a “real” judge).

    3. In PA at least, “fighting words” are a not a common law defense to a charge of battery. (By statute however, fighting words may be grounds for the charge of disorderly conduct.) Regardless, District Magistrate Martin’s acquittal of Mr. Elbayomy was not based on the doctrine of fighting words.

    4. First Amendment issues aside, I wonder why the organizers did not pull Mr. Perce from the parade. My bet is that costumes will be closely scrutinized next year and rules and regulations imposed. Pity the little children. Thank you, Mr. Perce.

  52. “First Amendment issues aside, I wonder why the organizers did not pull Mr. Perce from the parade. My bet is that costumes will be closely scrutinized next year and rules and regulations imposed.”

    Why would they? Where would they stop, in such a case? Does Islam deserve more protection that Catholics? Yes, I know that the Zombie Pope isn’t important to us, these days, but isn’t that because free speech has allowed enough exposure that it not an issue?

    Does Islam deserve more protection than Wicca? Yes, cartoon witches are only very loosely connected, if at all, to Wicca, but nonetheless, if Islam is afforded special speech protections, shouldn’t Wicca?

    And where do we stop with these special protections? At some point along this slippery slope, you must agree that even Atheists must be afforded special protections, as well. And at the point that everyone has these special protections, don’t we reach the situation where no-one has any protection?

    This idea that some particular race or religious group needs special protection because of their sensitivities is simply wrong-headed and counterproductive to the ideal of a civil society. We are either all governed by the same laws, or the country falls.

  53. Hedge – you say “We are either all governed by the same laws, or the country falls.”

    You have seen no doubt Glen Greenwald’s book “With Liberty and Justice for Some”, or the videos of his book tour. He raises a point similar to yours, although referring to a more clear and present danger than zombie popes.

  54. Anon – interesting that you point out that “fighting words” is not a defense for “fighting”. That seems to make a mockery of that line of thinking, almost equivalent to a zombie imam.

  55. BobS – speaking, per se, is not protected by the first amendment, as you point out. “No talking” signs are legal.

    The first amendment forbids the punishment of heresy, and then goes on to similarly prohibit the punishment of expressions of belief of a non-religious nature, whether spoken or expressed in symbols (letters, say) or in other ways.

    But when you say that there are classes of speech, the criminalization of which “have never been thought to raise any constitutional problem. These include … insulting … words”, I think you go too far.

    If we outlaw insult, can ridicule be far behind?

  56. Tradetree, you say “I will spare you the definition of speech vs. hate.”

    As I think you are aware, the “hate speech” ideas do not involve the emotion of hate. It involves actions directed at a protected class. Neither muslims nor members of other religions are such a protected class at this time AFAIK, and so that category does not apply.

    Is anti-semetic speech a hate crime?

  57. In his recent decision regarding an assault case, Judge Mark W. Martin dismissed an assault charge against a Muslim named Talaag Elbayomy, citing an excuse that, the victim Ernie Perce was to blame for being a victim because his dress offended the attacker’s religious beliefs.

    This is just an obscene decision which is wrong on so many levels, morally, ethically and legally.

    This decision brings law and order into disrepute, and as such constitutes malfeasance by Judge Martin.

    The state must act and intervene to restore law and order and to protect the constitution from being diminished by the actions of Judge Martin.

    In addition Judge Martin stated, in his decision, a clear conflict of interest which would have required him to recuse himself from this case.

    His negligent and egregious conduct in this case should permanently disqualify him from the position of judge. He is not fit or qualified to sit on the bench.

    Judge Mark W. Martin should be censored, reprimanded and dismissed from the bench for his actions in this case.

    Furthermore, if the state refuses to intervene and rectify this miscarriage of justice then the state of Pennsylvania should be held liable both for damages to the victim and for allowing justice to be brought into disrepute.

  58. Fuck the muslims and their fake saviour. If it were up to me I’d ship every one of them and their mosques that are here in America, along with all the dykes and faggots to Antaritica. The country would be a heck of a lot better off.

  59. martingugino. What is inside the quotes is taken from from the unanimous opinion of the Supreme Court. It is not what I think, it is what the Supreme Court has ruled.

  60. BobS – thanks, but wow. So would calling one of the Republican candidates “looney” possibly be criminal? Or Rumsfeld a bastard? Or Bush an idiot? Or Tenet a suck-up?
    Or is it that insults to the strong are protected, but insults to the weak are not protected. I could see that….

    Thanks for the correction.

  61. martingugino — I only wanted to clarify that it was not my opinion, but was an opinion of SCOTUS. Calling any politician “looney” is certainly not libel since the truth is a defense. I don’t know what Rumsfeld’s parentage is nor do I care. Bush got us into Iraq so you judge. Finally, everybody in DC is a suck-up.

  62. Your comment about this offense being an assault and not a harassment is incorrect. In PA, chapter 27 of title 18 covers crimes against the person. Section 2709(a)(1) is titled harassment and is the lowest level of assault and covers intentionally striking, kicking, shoving, or oherwise subjecting
    the person to physical contact. The next level of assault is section 2701 simple assault. Simple assault requires bodily injury or an attempt to cause bodily injury. This case does not rise to the level of simple assaukt and therefore is a harassment case.

    Besides that, the ruling is absolutely insane.

  63. Still after a few months I still get mad that a US Judge can get away with taking the rights of a American in a American court. All he got was a little slap on the hand. He should been taken off and fired as a Judge>

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