From George Washington University Law School professor Jonathan Turley:
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.
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.
Any unwelcome physical contact can constitute assault, but the officer chose to only charge the Muslim attacker with harrassment.
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 Muslim faith (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 his own Koran 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.
The last sentence is a reference to the attempted passing of "anti-blasphemy" laws in some European countries. This case is just the latest incident in which Islamic sharia law is applied in U.S. courtrooms to U.S. citizens, Muslim or not. The attempt in Oklahoma to pass an "anti-sharia" measure was ridiculed as being unnecessary, since sharia law is never used as the basis of decisions in U.S. courts, yet here we are again.
The lack of support by the legal institutions of the government for the Constitutionally guaranteed freedom of speech brings to mind the case of Pastor Terry Jones. In his case, the full weight of the U.S. government, from the mayor, governor, Senator, up to the President of the United States were all brought to bear to force Pastor Jones to relinquish his right to free speech, in order to avoid offending Muslim sensibilities.
Once again, judges are allowed to bring in values from other cultures and religions as the foundation for excusing actions that, if committed by native citizens, would be considered illegal. Once again, a multi-track legal system is being created, with different standards of behavior for Muslims and kufirs.
There exists video of the incident, which the judge would not allow to be presented. There were mutliple witnesses, and the Muslim attacker confessed his actions to the officer at the scene. There can be little disagreement as to the basic facts of the case; it is only the religious beliefs of the judge that caused the laws of man to be superceded by the laws of Allah.
Once Judge Mark Martin dismissed this case, I'm not sure what legal recourse the victim has, without invoking double-jeopardy. There is civil court, but other than the destruction of the sign, or whatever medical bills the victim accrued, there is little chance of monetary compensation. And so, unless a civil rights case is brought by the government, which is even less likely, this Muslim attacker is probably immune from any punishment whatsoever for his violent actions.
I'm also not sure what the possibility is in Pennsylvania for this judge to be investigated for judicial misconduct, and to be disbarred. He too may be immune from any repercussions. But one can only hope that one or two Pennsylvanians will attend his court as audience members, dressed as "Zombie Mohammad", staring at him as a silent reminder of our "unfortunate" Constitutional rights.