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Late last year, a group known as the Parading Atheists of Central Pennsylvania (PACP) won a court challenge to participate in the Millersville, PA community parade. While they were awaiting that event, they participated in a Halloween parade sponsored by the city of Mechanicsburg. Their method of expressing free speech is to dress up in costumes representing “zombie gods,” figures that have risen from the dead according to various religious believers. One of those figures was a “Zombie Pope.” Another was a “Zombie Mohammed,” who was almost immediately assaulted by a Muslim man attending the parade. What happened in court as a result of that incident was yet another assault — on the First Amendment.
There is no dispute about what actually happened. Ernest Perce, Pennsylvania state director of American Atheists, Inc., was assaulted by Talag Elbayomy, a Muslim immigrant who admitted attacking the victim. The attack was corroborated by a videotape (depicting a disturbance, not the actual assault). Both men called police to report a crime, both kept walking, and when they ran into police Sgt. Brian Curtis and related the story, Curtis explained to Elbayomy that Perce had every right to express his constitutionally protected viewpoint. Elbayomy was subsequently arrested and charged with harassment.
The case ended up in the court of Magistrate Judge Mark Martin, a veteran of the war in Iraq. (Many reports on this case also claimed that Martin himself is a Muslim convert, but Martin himself has corrected the record, saying he’s been a Lutheran for 41 years). During testimony, Elbayomy said he believed insulting the Prophet was a crime, and that he didn’t know American law allows for such representations of Muhammad. He also testified that he felt compelled to fight for the Prophet because his 9-year-old son was present at the parade, and he needed to set the proper example. In other words, the essence of Mr. Elbayomy’s defense was one that has failed countless times in countless courts around the nation: ignorance of the law.
In Judge Martin’s courtroom, however, the law took a back seat to the judge’s personal feelings. First, the judge refused to allow the corroborating videotape to be entered into evidence. He then disregarded the testimony of Sgt. Curtis on behalf of Perce, because Curtis did not witness the confrontation. Martin then dismissed the case for a lack of evidence, referring to the incident as “one man’s word against another.” He concluded the proceedings with a lecture–directed at Perce for his lack of sensitivity. Here is a partial transcript of that lecture (with an audio of the entire transcript here, beginning approximately 2 minutes in). Emphasis added:
Well, having had the benefit of having spent over two-and-a-half years in a predominantly Muslim country, I think I know a little bit about the faith of Islam. In fact, I have a copy of the Koran here, and I would challenge you, sir, to show me where it says in the Koran that Mohammed arose and walked among the dead.
And Mr. Thomas [Elbayomi's defense lawyer] is correct. In many other Muslim speaking countries–excuse me, in many Arabic speaking countries–call it “Muslim”–something like this is definitely against the law there. In their society, in fact, it could be punishable by death, and it frequently is, in their society.
Here in our society, we have a constitution that gives us many rights, specifically, First Amendment rights….But you have that right, but you’re way outside your bounds on First Amendment rights[.]
Since this story has begun to mushroom, Judge Martin has taken to defending his actions, noting that he had advised the defendant not to disseminate the above audio, because he might consider a contempt of court charge (despite the fact that Martin’s statement was made in open court). He defended his decision, saying that he “didn’t doubt that an incident occurred,” but that there were “so many inconsistencies, that there was no way that I was going to find the defendant guilty.”
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