Judge should review history of First Amendment

Pennsylvania District Judge Mark Martin needs to review his First Amendment law a little more carefully. Ernie Perce, an atheist who marched in a Halloween parade last year dressed as “zombie Mohammed,” was before Judge Martin after he alleged he was attacked by Talaag Elbayomy, a Muslim who took action after he witnessed Perce’s costume.

Perce wore a turban and a long, fake beard and painted his face green. During the parade, he yelled the phrases “I am the prophet Mohammed! Zombie from the dead!” He marched with another protestor, who was dressed as a zombie pope, carrying a banner that read, “The Parading Atheists of Central Pennsylvania: Ghoulish, Godless, God-awful.” According to Perce, Elbayomy attacked him, and Elbayomy was charged with harassment.

Judge Martin dismissed the charges against Elbayomy and scolded Perce, telling the protestor he had been insensitive. He also called Perce a “doofus.”

“You have that right, but you’re way outside your bounds of First Amendment rights,” Martin said, according to CNN. “I think our forefathers intended that we use the First Amendment so that we can speak our mind, not to piss off other people and other cultures, which is what you did.”

To the contrary, our forefathers intended that all U.S. citizens be allowed to criticize anyone they chose. The very first American citizens often criticized Great Britain, who they viewed as overly oppressive to the colonists. You can bet that the Brits were none too happy about that. The purpose of the First Amendment is to ensure that all people are protected when expressing their views, even if such views are unpopular. As GW Law professor Jonathan Turley pointed out, “People like Thomas Paine spent his entire life ticking off people across the colonies.” Another founding father, Thomas Jefferson, was hostile to the Catholic Church and criticized it often.

Perce was within his right to express his religious beliefs as an atheist, and if Elbayomy had expressed his dissent in a non-violent manner, he would have also been within his right. Sure, the thrust of the First Amendment isn’t to promote behavior that offends other people, but that is beside the point. Just because Perce offended Elbayomy did not give Elbayomy free license to assault Perce.

Judge Martin’s rationale for dismissing the charges against Elbayomy most certainly should not have been because Perce intended to “piss off other people and other cultures.” This is exactly the sort of thing the First Amendment was intended to protect against. Yes, Perce’s costume was offensive to Elbayomy, but it didn’t rise to the level of fighting words—there were no “personally abusive epithets” required by Cohen v. California.  Judge Martin should not have let Elbayomy off the hook for assault just because Perce said something he personally didn’t like.

Judge Martin could learn a thing or two by looking back again at what the First Amendment actually protects.

11 Responses to Judge should review history of First Amendment

  1. Clint says:

    Doesn’t this introduce a corrupt precedent that could propagate like a legal meme?

    • I don’t think so. Fortunately, this is a trial court decision – and it was simply a judge letting the assailant off. So, no, I don’t think it could create any precedent.

      That said, it would be quite some shit if we had “judicial nullification” of any criminal acts committed in the name of some fake ass myth.

  2. An enlightened individual does not resort to physical violence, under any circumstance. Being baited is not an excuse. There are far more damaging things you can do to a person apart from punching them, which is why the modern system looks down on physical altercations: it is lacking civility and imagination.

    • I disagree. I believe that a good old fashioned ass kicking is just the right remedy for certain wrongs.

      • But in what situations is an ass-kicking the right response to speech?

        • How about you walk down the street and call a black guy a “stupid fucking nigger.” I don’t see anything wrong with him giving you a smack upside the head, or a bloody nose. There is one example. I can go on, but that oughta make my point.

  3. The evidence is all too messed up all around for me to have a strong opinion on it one way or another. The judge said that the recording was edited and that he didn’t say some things the way the splice came out.

    The judge said he let the guy off for evidentiary reasons–for example, the styrofoam sign that the assailant supposedly used to choke the victim was perfectly intact. And made of styrofoam–I have never tried to choke someone with styrofoam, but my guy says that it would be kind of hard to do. There were also other doubts, apparently.

    That said, I think the judge is confused–to say the least–on 1A law. Many state trial court judges are. No surprise.

  4. Michael Levin says:

    Seems to me the judge was within his discretion when he let Elbayomi off the hook (wrongly, IMHO), but I’m not seeing how Perce’s FA rights were violated. I might have misunderstood the facts of the case, but I’m assuming this was in criminal court against Elbayomi, prosecuting him for assault and battery (and only for assault and battery)? If it was, then yeah, I’d have to say Judge Martin was within his discretion. Wrongly (because he ignored the fact that Perce was attacked), but still within his discretion. If that is the case, then Perce would still have a cuase of action against Elbayomi for violating his FA rights (not to mention for assaut and battery) in civil court. Or, if this was in civil court to begin with, then I hope Perce filed an appeal. Either way, it seems Judge Martin put the Koran above the Constitution.

    • You’re correct — this was not a violation of Perce’s First Amendment rights. It was, however, a bizarre view of the First Amendment by the judge. If I ever had a FA case before this judge, I’d do whatever I could to get it before someone else.

      I don’t think that Martin “put the Koran above the Constitution,” but rather that he put religion in general above it. I think he has this belief that speech that offends someone’s superstitions is not entitled to First Amendment protection.

  5. FYI, Judge Martin’s response to this situation was posted on The Volokh Conspiracy a few days ago. It’s at the end of this post: http://volokh.com/2012/02/24/charges-dismissed-in-pennsylvania-prosecution-for-attack-on-zombie-mohammed-atheist-parader/

    • Michael Levin says:

      I’d “like” this we were on fbook but, since we’re not, I’ll just say thanks for the update. That explained a lot. As the saying goes, the truth probably lies somewhere in the middle.

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