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
Occupy the Constitution, it will not prevent you from exercision your Religious beliefs.
But the violence and assault against others civil liberties may well undermine the Constitutional, Religious, and Legal rights of others.
Chris1, February 26, 2012 at 1:41 am
I still agree with the Judge. Morality is not based on what is allowed by the Constitution. It is clear the nihilist was trying to provoke violence. To what purpose, to cry about it later?
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Actually, Chris, the ‘nihilist’ may well have been attempting to exercise his free rights in order to assure the robust health of those rights and prevent them becoming lessened. There is a huge difference between nihilism and civil behaviour. And lots of things are lost if we don’t actually use them. At this moment in history our free speech rights are being sorely abused by the deaf ears of the courts. It is most important that we use our ‘civil vocabulary’.
Occupy the Constitution
Also,
“Here are countless numbers of people that cannot be reasoned with, and are seemingly willing to believe whatever is told them provided it fits within their carefully constructed framework of reality.””
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This has nothing to do with religion. This has more to do with the dumbing down of Americans and mis-leading people by getting them angry.
Religion, or ‘Faith’ , in a religious context involves a deep (hopefully) understanding, recognition , and practice (behaviour)of ones own personal beliefs.
Definition of RELIGION
1 (1): the service and worship of God or the supernatural (2): commitment or devotion to religious faith or observance
2: a personal set or institutionalized system of religious attitudes, beliefs, and practices
http://www.merriam-webster.com/dictionary/religion
feel free as an immigrant to dress up and have an ‘Ugly American’ parade.
it is your right.
and that would be supported in this Country.
“If you get slapped, punched, or stripped-naked, you’ll either survive and take one for the team – or you’ll smarten-up and use a less confrontational form of protest in the future.”
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dude
this was not an international incident. In that we are all subject to the same rules, WE ARE ON THE SAME TEAM
smarten-up and use a less abusive form of getting your own way in the future.
“So, go ahead burn that flag, protest at that funeral, tear-up a picture of the Pope on Saturday Night, march with a sign calling yourself Zombie Mohammed. If you get slapped, punched, or stripped-naked, you’ll either survive and take one for the team – or you’ll smarten-up and use a less confrontational form of protest in the future.
To the Ryx-hater “real” lawyers:
Your clients’ rights fail to trump my rights.
Your client has the right to call Muslims and their revered Holy Men anything they want. They also have the right to have their asses kicked, and to press charges.’
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so you are a mobster then?
assault 1) v. the threat or attempt to strike another, whether successful or not…
battery n. the actual intentional striking of someone, with intent to harm, or in a “rude and insolent manner” even if the injury is slight….
menacing) displaying a weapon or a course of conduct that intentionally places another person in reasonable fear of physical injury or death.
aside from being illegal these things are NOT NICE.
Woosty’s: You ask “are you a mobster then”? No, but I know/knew some over the years. As to not nice, it was illegal for the residents of New Hampshire to assault David Duke and his KKK followers at a rally years ago. The State Police “were helpless to intervene” as they were “overwhelmed by the number of assailants”. That will happen when you post a mere handful of Troopers.
Mister Duke wrongfully felt the lack of a “Martin Luther King Jr. Day” by a state holding “Civil Rights Day” somehow indicated an endorsement of his racial prejudices. I do believe that was the last time Mr. Duke visited the Granite State.
When does an Atheists right of expression become an act of cultural or racial hatred? Is it when the Atheist declares it so, or the offended party?
If a white man goes up to an African-American and calls him “Nigger” is it a matter of Hip-Hop slang, and being “down with the experience”?
Of does that African-American put a “keep your mouth shut Cracker” beat-down upon him?
I’d wager, many here would see the African-American as justified, given multiple centuries of American racial prejudices.
Yes, the Cracker – sorry, Peckerwood, again my apologies – the Caucasian fellow may press charges.
I’m hard-pressed to see a jury of the African-Americans’ peers convict him of wrongdoing. A likely outcome would be for the presiding Judge to overturn the Jury’s verdict, and direct a finding of “guilty”. Thus employing more lawyers in an appeal.
This Judge should have excused himself from this case. His job is to apply the law, not lecture a man about the Islamic way of life. I sincerely hope he will be removed from office. He doesn’t deserve to have such a pubblic position if he cant be impartial.
Has anyone filed a complaint with the Pennsylvania judicial conduct commission about this? Any resident of Pennsylvania can do so.
I am more concerned with getting the Muslim attacker before a jury for perjury. That will be a felony charge too, and we can get rid of him if he is convicted. The charge should be easy to prove with the cops testimony that the attacker admitted doing so to him, and the video tape, and the defense attorney’s statement in closing that there MAY have been physical contact. I think a jury will be more swayed by the cop than the judge was. Can a private citizen bring criminal charges in PA?
I still agree with the Judge. Morality is not based on what is allowed by the Constitution. It is clear the nihilist was trying to provoke violence. To what purpose, to cry about it later?
yankeefarmer, you’re clearly not much of an intellectual so I’ll attempt to make this as monosyllabic as I can.
You said….”smarten-up and use a less confrontational form of protest”?
Ok, where to start. What form is considered less confrontational? Who decides what is less confrontational? What does smarten-up really mean and how does one do it? Exactly how much must one smarten-up to be within the legal definition of “smart”? You’ve done nothing more than legitimize what this “judge” did when he arbitrarily applied his own sense of ethics to an equation that does not really allow for variables. Certainly not of the sort you espouse. I’d call you an idiot but that might be considered too confrontational by some scale I’m not privy too. No, instead I’m going to smarten-up and just call you stupid. Do you think you should be able to strike me down with impunity from the law now? I suspect the answer is an unequivocal YES.
tfs, thank you for an entertaining read.
Your comment above:
“I am an atheist in every sense of the word. But it’s not hatred of religion that drives my beliefs, or lack thereof. It is fear. Quite frankly religion scares the hell out of me and I despair for my children. Here are countless numbers of people that cannot be reasoned with, and are seemingly willing to believe whatever is told them provided it fits within their carefully constructed framework of reality.”
adequately illustrates your desire for a First Amendment read that incorporates “freedom FROM religion”.
There’s an amendment process to the Constitution, have at it.
Just be apprised that you may be forced to compromise with the X-tian right, who will trade public iconolatry for erasing the Fourth Amendment with it’s extrapolation of personal privacy and the right of “choice” as defined by Roe v. Wade.
Despite your obvious endorsement of my mental faculties, your comment:
“(there) are countless numbers of people that cannot be reasoned with, and are seemingly willing to believe whatever is told them provided it fits within their carefully constructed framework of reality.”
is rather accurate.
We Americans enjoy several flavors of this – not all Tea-stained.
“If everyone was disarmed, the criminals wouldn’t have a reason to shoot anyone.” – unless it was for jollies, or you looked at them, or didn’t comply fast-enough out of fear.
A few choruses of We Shall Overcome, and they’ll no doubt leave us unharmed.
“If we export our version of Democracy, these backwards countries run by religious zealots will welcome us with open arms.” – unless they’re countries filled with religious zealots, led by religious zealots.
Plan B: Nuke ’em all?
“Yes, but in killing these Iraqis, we’re saving the Iraqi people from the brutality of Saddam’s repression.”
There’s a few hundred thousand people who might accept a little repression instead of the death we offered.
Let’s hold a referendum.
Ryx, I’m inclined to agree with your position.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
I read: Congress. Via the 10th & 14th Amendment, we extend this to the States, and by extrapolation – to the people. Mayor Bloomberg and the NYPD however, disagree.
Westboro’s been successful in pressing for governmental protection of their bombastic treatment of veterans, the deceased, and their families.
They haven’t faired so well when faced with organized protests and escorts. The rights of citizens to peaceably assemble (thus providing a cordon around the Westboro-types) has proven most effective.
Westboro’s protected right of expression, meets the protected right of assembly. Neither organization is happy, but that’s how rights work.
In this case, a Muslim in America is restrained from doing what a Muslim in Afghanistan would do – kill the American.
Just look what (stupidly) burning Qur’ans did to endanger UN, NATO and US workers and troops in the past week.
So, go ahead burn that flag, protest at that funeral, tear-up a picture of the Pope on Saturday Night, march with a sign calling yourself Zombie Mohammed. If you get slapped, punched, or stripped-naked, you’ll either survive and take one for the team – or you’ll smarten-up and use a less confrontational form of protest in the future.
To the Ryx-hater “real” lawyers:
Your clients’ rights fail to trump my rights.
Your client has the right to call Muslims and their revered Holy Men anything they want. They also have the right to have their asses kicked, and to press charges.
There’s also the right to practice your religion without interference of the Government.
That’s the free exercise clause, the clause most often ignored when citing “freedom FROM religion” purportedly contained within the First Amendment.
Oh, and the cop acting as Prosecutor? Done in many States for infractions, traffic violations, and petty crimes rising to the lowest levels of misdemeanor, such as criminal mischief.
Judge Martin should not be merely removed from the bench, he should be sanctioned by the Bar for violations of the ethics rules.
He certainly needs to take some time off from this profession and revisit the constitutional law course, which he obviously did not properly study, or he forgot. Hopefully Mr. Perce’s attorney filed an ethics complaint with the Bar as to Judge Martin.
As an immigrant, I’m all for multicultural awareness and respect for other cultures, but this means Mr. Elbaymomy – as well as Judge Martin – should be respectful of the culture of this country, where they chose to live.
Free speech is a fundamental part of this country’s culture, and if someone doesn’t agree with free speech he should just move elsewhere.
Oh good. That means that when I punch this judge in the face for insulting MY deep rooted culture of freedom of expression and equal protection of the law, I won’t face criminal charges. Right?