Pennsylvania Judge Throws Out Charge For Harassing Atheist While Calling The Victim A Doofus

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.

Source: ABC

323 thoughts on “Pennsylvania Judge Throws Out Charge For Harassing Atheist While Calling The Victim A Doofus

  1. Everything typed made a lot of sense. But, what about this?

    what if you were to create a killer title? I am not saying your content is not solid, however
    what if you added a title that grabbed people’s attention? I mean Pennsylvania Judge Throws Out Charge For Harassing Atheist While Calling The Victim A Doofus | JONATHAN TURLEY is a little vanilla. You could peek at Yahoo’s home page and see how they create article titles to get viewers to click.
    You might add a related video or a related picture
    or two to get people interested about what you’ve written. In my opinion, it would bring your blog a little livelier.

  2. The judge needs to go to jail. He is a criminal for letting a criminal go without charges. Of course he shouldn’t be a judge. That is obvious.

  3. especially when Muslim law has NOTHING TO DO WITH AMERICAN LAW, time for the scourge, pour out the bowls of destruction, lower the veils of deception and let’s do this crusader style .FUCK MOHAMMED

  4. This is all wrong! These people did not fit in this town’s parade. They made fun off all Gods of all faiths and I watched with my son and thought, “seriously? You have to test the limits here?” I had to explain what an Atheist was on parade night. Then, this fool, just so happens to have his video camera running while faking distress??? Judge Martin is a very kind and fair Judge and if you have all of the facts and not the ones just from this atheist, it becomes clearer! These guys were out to entrap someone that night and turns out this same angry atheist was not without his recorder in the courthouse as well. The arresting officer arrests ANYONE regardless of facts and that is what this Judge sees all day. Mechanicsburg is a town of too many churches (3 on one block!) of all faiths and cultures, some very ignorant people though most are just small town kind people, and a somewhat rotten bunch of small town cops that have very few arrests. “Muslim” is all that the media grabbed onto but I was offended by these marchers as well. They were probably expecting to get denied to even be IN THE PARADE and were probably hoping for that lawsuit. Just a guess, next year he will be back and that stinks. Freedom of religion or freedom to have no religion, respect for all would be the right thing to do and we were just taking our kids to see a parade of scouts and bands and firetrucks.

  5. People such as the criminal assaulter and the criminal judge shouldn’t live in America with Western culture and values as they are obviously intolerant of American culture. They should move to an Islamic country where Western culture and values are excluded.

  6. Mespo, Sir, I had to take a break and get some sedatives and take them with vodka. I thought I read you as saying:

    “That’s exactly what I think. Angels, vampires, ghost whispering shows, fairy tales on network TV, religiosity to insane levels, annihilation spoken of as with a video game, and every other manner of immaterialism (as Jefferson would say) shows me we don’t like the world we’ve got so we’ll retreat into another. About the only place where reality and reason rule most of the time is at the courthouse so that’s where I prefer to be –call it a retreat into reason.”

    But Sir, isn’t the courthouse where this great pronouncement on the First Amendment took place? That’s where I think it happened, even though it was attributable to angels, vampires, ghost whisperers, fairy tales, religiosity to insane levels, and the inevitable etceteras.

    Judges can have some pretty weird ideas about how religion and law should meet, and I believe that there is a greater likelihood for a judge’s brain to go out of commission or just “off the rails” in a case where their emotions and perhaps their “archaic material” bloom than in other cases where they just have to apply the law and divvy up the money, or make evidentiary rulings before a jury makes decisions. In a Fairfax, Virginia courtroom in 1998, Judge F. Bruce Bach denied a woman named Rosemary Kooiman the right to perform marriage ceremonies for members of the Wicca religion even though she was a religious leader of the Wicca faith. [Mind you, the marriage licenses obtained by the spouses-to-be would still have to be issued by the Commonwealth, so it was only the actual Wiccan religious ceremony that was at issue.] Wiccans apparently HAVE no other religious authorities to perform marriage ceremonies. But Judge Bach first seemed to ridicule her religion (“Do you worship trees?”) (to which she answered, “We [revere][honor] trees” [I can’t remember which word she used]) and he concluded that Wicca was not a religion. So she got the ACLU involved. They made a motion for Judge Bach to reconsider; he couldn’t bring himself to acknowledge the “Wicca religion” so he did not change his mind. Kooiman then went to a different county in Virginia and got an order out of that court allowing her to obtain a license to perform the weddings, and peace reigned in the Wicca World of Virginia, at least.

    I have seen some things in courthouses that make angels, vampires, ghost whispering, fairy tales, insane religiosity, and every other manner of immaterialism look GOOD. And some of it by judges who, in plenty of other civil or criminal cases that don’t “push their crazy buttons,” can do a perfectly competent job.

    About the idea that it was OK to assault somebody who, arguendo, HAD gone “outside the first amendment,” we’re in real trouble here when the judges start to bless THAT conduct. Then you can have a guy who dresses up as a woman getting attacked for “insulting womanhood” or “insulting manhood.” You can have someone beat his wife to a pulp because she insulted HIM. Once when I was walking through a park in Washington, DC, I was handed a pamphlet that claimed that women were causing rape by wearing ornaments in their hair — it was handed out by the Mennonites, who were probably insulted by my own coiffure that day — lucky they didn’t get offended enough to throw me down and cut off MY HAIR! This Judge in Pennsylvania has just done something that is not only dangerous to our Constitution, it’s dangerous to each and every one of US, because it says that the state will not protect people who, in one judge’s opinion, should not have expressed themselves in a way that someone else disliked.

    I mean, get ready folks.
    I mean, get ready.

  7. @ Concerned Citizen: You said, “Simple solution, remove the cretin from the bench and he can go to a country that will allow him to practice his special brand of ignorance.”

    It pains me to say this, CC, but he IS in a country that will allow him to practice his special brand of ignorance.

  8. Judge Martin should have remained in his chosen Muslim country where he would obviously be more qualified to mete out justice. Barring his departure to the Middle East his swift departure from the bench is in order.

  9. Alan Golkin, you have a lot of nerve critcizing anyone, having been disbarred yourself. You should be in prison. Keep your lefty views to yourself. From the Cornell University archives:

    D-1719 IN THE MATTER OF DISBARMENT OF ALAN R. GOLKIN
    Alan R. Golkin, of Niagara Falls, New York, having been suspended from the practice of law in this Court by order of September 5, 1996; and a rule having been issued and served upon him requiring him to show cause why he should not be disbarred; and the time to file a response having expired; It is ordered that Alan R. Golkin is disbarred from the practice of law in this Court.

    • Way to stay classy ma’am. What difference does it make if someone is disbarred? Does that suddenly eliminate their ability to reason or remove all freedom to analyze a situation? This judge was clearly acting outside the bounds of the law. This is almost universally accepted as true. To criticize a message because of the messenger is a logical fallacy known as “ignoratio elenchi”

Comments are closed.