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
TV station report
http://patdollard.com/2012/02/muslim-judge-dismisses-case-of-rabid-muslim-who-admitted-to-assaulting-atheist-dressed-as-zombie-mohammad-for-halloween-with-video/
I am beginning to wonder if the Judge was being sensitive to the attacker’s immigrant status that may have been in jeopardy with even a probation.
The judge chose to completely not even consider the Police officer as a witness and perhaps the statements of others. Traffic tickets have less burden of proof.
Surely, this has to be reviewed by a higher judicial authority, either in Pennsylvania or on a Federal level, in light of the obvious biased judgement that introduces religion into the rights’ arena of law in this country.
If this judge wishes to continue being a judge, he either needs to take constitutional law over again or move to a muslim-centric country where his particular brand of judgement is the law of the land, however disgusting we find it to be here in these United States.
sharia law is not the law of the U.S. and should never be brokered as being an alternative form of judicial involvement in criminal or civil cases. I hope this judge is disbarred for his particularly offensive form of jurisprudence and I would look into all other judgements he’s made since declaring himself a muslim, as he obviously is against U.S. law.
for shame, turley. your interpretation of what happened in this case is extremely misleading, and is prompting thousands of frothy internet commenters on yahoo and the like to scream about the terrors of creeping sharia. you don’t have to look very hard to see that the case turned on burden of proof–all the talk about the first amendment and the culture of muslims was either dicta or about the intent of the muslim “attacker.”
Gene H. and the guys,
I hope he is bleeding from an appropriate orifice now.
Haven’t seen the ladies, but I guess they don’t like to see judicial murder being done. (Now, no stoees please ladies. Am sure your moral nails are long enough to claw him a new one)
I’m interested in knowing if anything is being done about this? Has the judge been censured? Is the defendant receiving legal assistance from the ACLU, or perhaps some private individual seeking to defend his rights against this unbalanced judge?
mespo,
Madison and Jefferson were right about so much, but I’ve always felt their observations about the dangers of a standing army were prescient.
The one who is doofus is the one who attached the human with a costume. The Muslim attaching him shows that they act like the humans that cried out in a loud voice saying crucify him to Jesus. When will the Muslim humans wake up realizing: satan – sheitan is the one they are following the Koran, and not God by any name..The law of love your neighber is not in the Muslim because it is not taught in that demonic book. It was good that the judge threw out the case. it would have been better if he kept his trap shut after That.
Ryx,
You are doing a fine job. I admire you for your convictions to your clients. Long live the sovereign. Don’t let the nana donothings get to you.
Ryx,
If you are indeed a lawyer I pity your clients. You are tacitly approving assault upon those with whom someone disagrees. Assault is an unlawful act, in and of itself and mitigating it because of becoming angry at someones actions is not a defense, if the assault was unprovoked by threatening behavior. If there was threatening behavior the self-defense could be raised as justification and/or mitigation. This was clearly not the case here.
Also you narrowly defining that free speech pertains only to governmental interference is likewise an absurd position for someone purporting to be a lawyer. Were this the case then Islamic, Christian or Jewish Fundamentalist gangs could roam our streets attacking those they perceive acting offensively towards their religious beliefs. Is this really the America you envision?
Gene H:
If all our military has the totalitarian mindset that ol’ Ryx has, then maybe we need a militia system. Madison and Jefferson wee probably right about the dangers of a standing army.
Yeah, that’s some lawyering you’re doing there, Ryx.
You simply don’t know what you are talking about.
Free speech does not apply only to governmental action. It’s a fundamental inalienable right that runs with the individual. With the notable exceptions of slander and libel and speech that is criminally prohibited like threats of imminent violence or inciting a riot, damn near all content and form of free speech is protected including speech critical of religion. I’m free to say whatever I like about any religion I care to speak about and as long as I’m not committing slander, libel or criminally inciting a riot, there’s not a damn thing you can do about it. I’m free to say what I like, you’re free to be as offended as you like, but you are not allowed to try to silence me yourself using violence unless you want to suffer the legal (and likely physical self-defense) consequences. ? It will end badly for you. Offer a rebuttal if you’re so offended. You’re free to do so and no one can stop you.
In addition to the comments of other posters regarding the ridiculous nature of your statements, I’ll add that flag burning is also protected free speech. United States v. Eichman, 496 U.S. 310 (1990).
How’s that claiming to be a lawyer thing working out for you on a site frequented by actual lawyers and other legal professionals, Ryx?
pete
1, February 24, 2012 at 8:36 pm
while i agree the judge was incorrect in his ruling some of the comments here lead me to believe that had ernie dressed as zombie jesus some of the commenters might have been his attackers.
*************************************
Get off your high horse… there was a zombie Pope standing right next to him. Zombie Jesus is actually a very old meme. Not every religious freedom issue needs to be amended with “but… but… Christians are bad tooooooo!!!”
“That has to be taken into account because it’s so offensive and it’s a deeply tied part of you as a person.”
No, Ryx, it doesn’t have to be taken into account. This is well-established by the various rulings regarding the Westboro Baptist Church and their hate spew. There is nothing in law that allows you to attack another person because of their speech. What you are allowed to do is lodge a complaint with the police. Anything further is not only assault, it is a violation of someone else’s Constitutionally guaranteed freedom of speech.
“A private citizen making speech in a public setting generally requires a permit in order to gain government protection, otherwise, any offending party is supposed to be removed at the request of another citizen.”
Not true. The act of removing the speaker would involve state action (police), thus triggering the speaker’s First Amendment rights.
Now, about the assault. § 2701. Simple assault.
(a) Offense defined.–A person is guilty of assault if he:
(1) attempts to cause or intentionally, knowingly or
recklessly causes bodily injury to another;
(2) negligently causes bodily injury to another with a
deadly weapon;
(3) attempts by physical menace to put another in fear
of imminent serious bodily injury; or
So, let me see if I have this right, if a bystander stranger is offended by someone’s speech he can assault him and successfully assert a defense of “I was offended”. Wow, I suppose devout Christians who oppose gay marriage are free to do some serious ass-whooping at the next gay pride parade in Pennsylvania. How dare those gays antagonize Christians. Say, I have an idea, why don’t we let some Jews march in a parade in support of Israel and invite a large group of Palestinians to watch. Should make a great youtube video.
Beverlee: Let’s say you are a war veteran or something like that. Somebody insults you on the street and burns the US flag right in front of you, antagonizing you.
You get mad and charge the guy in rage.
That has to be taken into account because it’s so offensive and it’s a deeply tied part of you as a person.
As I wrote above, I would expect, as long as you don’t cripple the guy or cause permanent or serious damage, the judge will take that into account because I see plenty of assault charges dropped or just made into violations which you pay a fine on. Also you need a good lawyer that can argue it, I tend to do very well in that regard so that’s my personal experience.
If you have a crappy lawyer that doesn’t know how to emphasize arguments in your favor to take advantage of any wiggle room, then no, you probably won’t get away with it at all.
I’m former military myself, I would charge a guy burning a flag.
Ryx…
So, let me see if I understand you. I have always been offended by flag burners. If I see one in public I can legally beat them up? As long as I’m offended? Thanks.
The 1st amendment only applies to government action, thus it doesn’t apply here at all. Private citizens can take offense to any speech and restrict it anyway they want. A private citizen making speech in a public setting generally requires a permit in order to gain government protection, otherwise, any offending party is supposed to be removed at the request of another citizen.
The issue here is whether an assault took place, and whether an assault is justified. Here the “victim” was antagonizing another citizen who reacted. When judging the case, the law has to look at the entire situation as to why an attack took place. If a reasonable person would be offended or attack, then that has to be taken into consideration.
Now I understand the main point of this story is to rouse up a bunch of whining and hate towards Muslims. I get that, but when you start bringing law into the equation, I’m a lawyer, I’ll think of it legally. Most of what a judge says is worthless and generally only the holding matters. At this level, even that doesn’t really matter as it’s not going to shape law anyway.
Sure you can try to appeal on error, but what would the appeal be on the grounds of? You’d have to show that the First Amendment tangent was somehow reversible error. Instead it looks harmless to me since the legal analysis is supposed to be purely on assault, and here the judge indicates it is justified based on the victim’s antagonization. I would assume that the attacker is required to pay a fine and maybe gets probation, and that’s pretty much it at most. A judge can of course completely wipe out any penalty, and has that discretion.
If you haven’t practiced law or actually understand any of this, maybe you shouldn’t try to comment on the legal system.
pete
1, February 24, 2012 at 8:36 pm
while i agree the judge was incorrect in his ruling some of the comments here lead me to believe that had ernie dressed as zombie jesus some of the commenters might have been his attackers.
*************************************
Offended, Yes, but when christians are offended, we are not taught to start assaulting or killing people (like Theo Van Gogh, or the cartoon riots).
While I may believe that athiets are wrong… that is their choice.
I also support muslims who respect other right to believe differently and don’t believe it is their duty to spread their religion by force and intimidation.