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
I won’t go so far as to say the alleged attacker should have been found guilty, that is after all what the trial is for.
However, the judge was wrong to dress down the victim, wrong to say that he went beyond his first amendment rights by insulting anothers religion and wrong to bring up (as supporting arguements) that in other countries it’s illegal.
The Plaintiff in this case needs to contact the governing Common Pleas Judge who oversees District Justices in that area and file a complaint.
Mark Martin, he’s not fit to be called a Judge and should be picketed at this residence and work – they have moved his office to the Main Courthouse for security purpose – the number there is 717-240-7864.
This person is a traitor to the US Constitution and they oath he took when he was sworn into office.
This judge must be removed from the bench. He ignores our Constitution and places the Koran and his ‘experience in Muslim , um, err, Arabic countries’ as the standard. The ruling should be overturned and the proper punishment should be given. If you immigrate to this country you must follow Our Laws! Laws of other countries should Never, Ever be utilized as precedent!
This Judge is an American hero.
@Stephen Ryan: Also, he *was* expressing his views on religion. He was portraying an absurd, surreal, comical, nonsensical, cartoonish belief system for what it really is. That’s precisely the kind of expression that’s needed to raise awareness of the indefensible evils of theism. While satire is an extremely vital form of expression, this case might not qualify as satire because the expression was in fact less absurd than the thing being ridiculed!
Seems the judge has problems with the truth as well as legal reasoning. Look for this all all star to make general officer.
This is idiocy at its best. The judge is wrong and should be removed from the bench and not even allowed to rule over traffic court. He has no right to invoke Shari law on the people of the United States. We are not an Islamic country.
The video shows that this Muslim defendant is a liar. He is fabricating the truth to fit his needs. If you look carefully at the video, you can see at the 48 second mark, a shadow comes up from behind and you can see contact between the two. One arm goes up over the right shoulder and on the left side another arm (the defendants left arm) grabs some thing. The person filming then shouts, confirming the contact.
I however think the atheist is a moron. There is no need to use such ridicule against others for their belief system. Sure, go get dressed up as a zombie Muhammad, but shouting out those comments and carrying a sign to “inform” others about who he was is really beyond common sense. There really is no reason for it other than to deliberately provoke others.
Also, Muslims do believe in resurrection, except on the day of judgement. Muhammad did not rise from the dead so this plaintiff is wrong.
Even though I regard myself as an atheist, I would make the following observations:
1. After watching the tape, I would concur with the judge that Ernie Perce is clearly a doofus. For an adult to behave in such a manner indicates a very low IQ.
2. Ernie Perce was not trying to express his views on religion, but was trying to offend and knew he would offend any muslim in the crowd.
Ernie Perce is entitled to protection under the law and as such the judge erred by dismissing the charge in the manner he did. But as atheists, this is not the type of battle we should be fighting. Yes, get behind people like Jessica Ahlquist who made a very brave stand demanding her school uphold the constitution in respect to religious symbols in secular schools and has had to suffer death threats and insults of every kind since. But don’t hitch our cause on the antics of a very stupid and deliberatly insulting person who should know better.
Freedom of speech is not just in relation to religion. Walk into a bar near a military base and start mouthing that the army is composed of war mongering murderers. Attend the St Patrick’s Day parade in New York pretending to be an inebriated Irishman, staggering instead of walking. The constitution protects your right to do both, but nobody will care and you won’t garnish any sympathy if in both cases you get a smack in the gob.
There are more important battles to fight than this one.
@Stephen Ryan:
You’re totally missing the point and making a foolish judgement (“low IQ”). It’s essential to be offensive and attention-grabbing when fighting against something like Islam that oppresses modern human rights. It’s a very wise tactic and the proper response of our society to this episode would be for hundreds of people to march in similar outfits.
Your analogies are way off. The military case might be valid form of activism if someone really believed that the blame for murderous wars could be laid at the hands of individual soldiers, except that it wouldn’t be appropriate behavior *inside* a private establishment like a bar, maybe outside. However, the Irish case is pure nonsense. Fighting evil superstitious cults like Islam, Christianity, etc is not in any way analogous to making racist jokes about Irish people.
Dee Nice,
If you contend that you can react violently after having experienced a satirical representation of you or your ilk, then you’ve entirely missed an important Supreme Court decision, i.e. Hustler Magazine, Inc. v. Falwell, 485 U.S. 46. Please attend to the particulars.
I sense that your response was a bullying tactic and am also convinced that you’ve not thought about this issue to any extent. If you have seriously contemplated the decision, then might you be averring that anyone who takes an opposite position of yours fear violent reprisal?
Ever hear of “Fighting Words”. I’m black. The first amendment gives any of you the right to put on white sheets and march down the street with signs that say “Niggers go back to Africa”. That’s fine. And when I see you I’m gunna whoop your ass and take the jail sentence, whatever it might be. On the other hand the courts might very well take my side:
In its 9-0 decision, Chaplinsky v. New Hampshire (1942), the U.S. Supreme Court established the doctrine and held that “insulting or ‘fighting words,’ those that by their very utterance inflict injury or tend to incite an immediate breach of the peace” are among the “well-defined and narrowly limited classes of speech the prevention and punishment of [which] … have never been thought to raise any constitutional problem.”
That the judge or justice uttered the word, “doofus,” “doofis”, or whatever the spelling of the label is immaterial, as is whether or not the judge is or is not a Muslim. I suspect he is not and, furthermore, am of the opinion that the audio was tampered with to a certain degree. Neither issue makes an iota of difference to me. That of which I don’t approve is blaming a victim for having been assaulted. In memory of Theo van Gogh, one might consider that free inquiry and satire are rights that ought to be defended by the bench.
I think the audio of the recording needs to be reviewed, not for accuracy, but to distinguish what the Judge actually said, re: being a muslim. I am able to hear the judge saying, that muslims find portraying Allah in a questionable way to be “very, very, very, offensive…IF I’m a muslim, I find it offensive.” It is difficult to hear, between the poor audio quality (the judge gets quiet as he starts the “if I’m”) and the accent, but I hear the “fff imma muslim”. That’s important; because he’s NOT saying he -IS- a muslim, what he’s saying is that he personally finds the costume to be offensive, so he can understand that a muslim would certainly find it offensive.
So let’s get off the “the judge is a muslim” thing and instead look at why a sitting judge feels the need to hold an opinion on a Halloween costume at all.
Further, from the purported statement of the judge regarding Rule 112, Pennsylvania has a problem with audio recordings. From their wiretapping statutes, to the problems they’ve had with video taping police officers resulting in ACLU intervention, the state is psychotic when it comes to audio recording. But this case, to me, does NOT highlight the importance of Rule 112 that the judge attempts to make; that audio recordings can be misleading or problematic and therefore should be outlawed. No, what this case proves to me is that we need MORE audio recording. If citizens recorded MORE, and the government was FORCED to allow such, we’d have SIGNIFICANTLY better quality, and we’d hear EXACTLY what that judge had said. There is no excuse in “poor audio” quality as a reason to curtail the citizenry’s right to infer knowledge from official proceedings. The judge’s attempt to squash the recording here is nothing more than an “official” attempt to cover-up what he clearly KNOWS is a bad ruling. If the victim had NOT recorded this session, THERE WOULD BE NO STORY AT ALL.
The First Amendment needs to be extended: it disallowed abridging the “freedom of speech, or of the press”…the two prominent ways for the citizenry of the time to record and distribute the “record” of events. They didn’t have cameras, they didn’t have tape recorders, they didn’t have vid cams, much less iPhones. They had no technological means by which to capture and playback events other than human senses, memory, and manual reproduction (imagine having to draw a picture of something you saw if you WEREN’T artistic!) Those days are long gone. The Rights of citizens to capture and record events around us needs to be recognized; we should no longer be hamstrung by quaint technicalities (“he said, she said”). Audio and video recording at the level of human perception should be become the standard, not the exception.
I’ve listened to it several dozen times and I do not detect an “if” or any “f” sound. There’s no question that he claims to be Muslim.
What really matters in the case is this: can it be proven that the defendant assaulted the plaintiff? All the plaintiff has is his own testimony and a video that reveals nothing (that I could see). Thus it could not be proven that the plaintiff was assaulted. Invocation of Sharia law would be to say that it was indeed found that the plaintiff was assaulted, and that the assault was a justified response to an insult against Muhammad. That’s not what happened.
All you have here is a crazy judge who went on a long and entirely irrelevant rant about Islam, and a plaintiff who could not prove that a crime was committed against him. I do think this judge is biased and incompetent, but if Mr. Perce can’t present sufficient evidence that he was assaulted, he has no case against the defendant.