Islam, Free Speech, and Democracy

What really happened in the Pennsylvania "zombie Mohammed" case?


The story that flew around the blogosphere last week was guaranteed to cause an uproar: A Muslim assaults an atheist for mocking Mohammed, and a Muslim judge dismisses the charges and berates the victim—and it all happens here in America. Suddenly, warnings about the threat of Sharia law on our shores got a strong boost.

In fact, there was no "Sharia court," and the judge is not a Muslim. But, however egregious the misreporting of the story and the vilification of the judge—Cumberland Country, Pennsylvania magistrate Mark W. Martin, who graciously answered my queries in an email exchange—the actual facts of the story are troubling. Judge Martin's intent may have been entirely benign, but his handling of the case sends a bad message not only about freedom of speech, but about the place of Islam in American culture.

It all started with a Halloween parade in which Ernest Perce V, head of the state chapter of American Atheists, marched as "Zombie Mohammed" with turban, fake beard, and chants of "I am the prophet Mohammed, zombie from the dead." (A fellow atheist activist was "Zombie Pope.") An offended Muslim immigrant, Talaag Elbayomy, approached Perce and threatened to call the police, apparently believing that such blasphemy was against the law; Perce claims Elbayomy spun him around and grabbed his neck while trying to pull off his beard and his "Mohammed of Islam" sign. Elbayomy was charged with harassment.

On December 6, Judge Martin dismissed the case for lack of evidence. He also gave Perce a lengthy tongue-lashing, chastising him for everything from ignorance of Islam to failure to understand the importance of religion to Muslims to an "ugly American" disregard for other cultures. Noting that Perce's actions would have been punishable by death in many Muslim countries, he continued, "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." He told Perce that while he had the right to be offensive, "you're way outside your bounds on First Amendment rights."

But what got people's attention was a passage in which Martin said that Muslims find such conduct "very, very offensive"—and added what sounded like, "I'm a Muslim, I find it offensive." 

Perce pounced on Martin's alleged admission of Muslim faith, repeatedly flogging it in the 37-minute YouTube clip (an audio recording of the trial with his scrolling transcript and commentary). The blogpost on the American Atheists website was headlined, "Muslim Attacks Atheist. Muslim Judge Dismisses Case, Blames Victim." Dozens of blogs ran with the story, some embellishing it to describe Martin, an Iraq veteran, as "a convert to Islam" (perhaps because his background made him an unlikely Muslim).

Almost immediately, a news site quoted a court secretary as denying that Judge Martin was a Muslim. Then, a statement from the judge himself was posted on several blogs, explaining his decision and asserting that he was not Muslim but Lutheran. National Review writer Andrew McCarthy, a strong anti-Islam polemicist who had first reported the case as an outrage by a Muslim judge, backtracked and amended his transcribed version to the hypothetical, "If I'm a Muslim, I'd find it offensive."

From my review of the audio, I believe the words are, "I'm not Muslim, I find it offensive"—with the "not" spoken so quickly it sounds like a single vowel. (There is nothing unusual about such skipping over short words: later in Perce's transcript, "two sides of the story" is rendered as "two sides [?] the story," with the "of" barely audible.) I can hear the "not" when listening closely; many posters on blogs and forums have picked up on it as well, including ones harshly critical of the judge. Some pointed this out before there were any official denials of his being Muslim. 

Judge Martin, who graciously answered my queries in an email, told me he could not recall exactly what he said at that point. But either way, in context, "I'm a Muslim" makes no sense. The audio shows that Martin consistently refers to Muslims as "them," and says that he knows "a little bit about the faith of Islam" due to having spent over two years in a predominantly Muslim country. He certainly does not, as the American Atheists blogpost asserts, proclaim "how strongly he embraces Islam."

Was the dismissal of the harassment charge improper? Probably not; here, too, the facts have been treated quite loosely.

Thus, it has been widely claimed that a cell phone video corroborates Perce's complaint, contradicting Judge Martin's assertion that it was one man's word against another's. On the National Review blog, McCarthy writes that the video "does not depict the assault but it shows there was a sudden disturbance." Yet the only thing the poor-quality video definitely supports is Elbayomy's statement that he approached "Zombie Mohammed," told him to stop and said he would "call the cops." Then shouts erupt, but what's happening is unclear; Perce's subtitles assert, "He's choking me!", but a moment later Perce resumes his "I am Mohammed" chant unfazed.

McCarthy also writes that "a police officer would have testified that Elbayomy admitted attacking Perce," implying that this testimony was disallowed by the judge. This seems to be a misinterpretation of reports alleging that Judge Martin refused to consider the officer's testimony—originating with this garbled statement in the American Atheists posting: "A Police Officer who was at the scene also testified on Mr. Perce's behalf, to which the Judge also dismissed by saying the officer didn't give an accurate account or doesn't give it any weight" (sic).

But on the audio, Judge Martin says nothing of the sort, only that the testimony did not prove harassment beyond a reasonable doubt. The officer, Sgt. Brian Curtis, actually played a key role in the trial, in the unusual dual role of eyewitness and prosecutor cross-examining the defendant. Curtis, who had interviewed both men on the scene but taken no statement, testified that Elbayomy had admitted to "physical contact" with Perce during the argument—though not to any specific acts such as grabbing or choking. In his own testimony, Elbayomy (whose English is limited) insisted that there had been only a verbal confrontation, and that if he had previously admitted to "physical contact" he might have meant Perce pushing him.

With such conflicting testimony, Judge Martin's decision to dismiss the case is entirely reasonable. The way in which he used his position as a bully pulpit is another story.

It is not unusual for judges to admonish the parties in a case, sometimes harshly, about their conduct. In this instance, though, the lecture was startlingly one-sided. Judge Martin lambasted Perce for his disrespect for other people's culture and faith while not one critical word was spoken to Elbayomy.

There is nothing wrong with telling someone that just because he has a constitutional right to say something doesn't mean he should say it (which Judge Martin told me was his point). Yet there is something inherently disturbing about a public official chastising a citizen for engaging in constitutionally protected expression, however obnoxious. It is especially troubling when it's a matter of criticizing or even lampooning religion, an area in which free speech has so often been trampled.

Meanwhile, Judge Martin had before him a defendant who, by his own and his lawyer's admission, was grossly ignorant of the protections for free speech in America. Surely, a lecture on civics would not have been amiss.

When I posed this question to the judge, he replied that his remarks about First Amendment rights were addressed to both parties: "It was a dual message … that the victim was within his constitutional rights to do what he did." But, given that Perce was the one being chided, that message was likely lost on the defendant—particularly since it came with the disclaimer that these rights should not be used to "piss off other people and other cultures" and with the baffling statement that Perce was "outside [his] bounds on First Amendment rights."

The case has another worrisome aspect. While no religion has a monopoly on fanaticism, it is no secret that, for many complex reasons, religious intolerance is at present far more entrenched, more common, and more extreme in Islam than in other major religions. Some argue that violent suppression of dissent is in the nature of Islam, and insinuate that every Muslim in the West is a potential agent of sharia tyranny.

Judge Martin did not, of course, invoke sharia law as a basis for his ruling; nor did he suggest that Elbayomy would have been justified in assaulting Perce because his religion commanded it. But he did seem to suggest that insults to the Muslim faith are especially bad because of how impermissible blasphemy is in many Muslim countries and because of the role religion plays in Muslims' lives. Indeed, he specifically drew a distinction between "how Americans practice Christianity" and how Muslims practice Islam: "Islam is not just a religion, it's their culture … it's their very essence, their very being."

Of course, there are many different ways in which Americans practice Christianity and Muslims practice Islam. Some American Christians respond to perceived slights to their faith in ugly ways (such as threats of violence against productions of Terence McNally's play, Corpus Christi, featuring a gay Jesus). But American religious practice, overall, is strongly tied to a hard-won tradition of freedom of religion—and irreligion. Judge Martin's comments seem to suggest that Muslims are far less capable than Christians of dealing sensibly with insults or challenges to their faith. That does a serious disservice both to American democracy and to American Muslims.

Already, this case has given ammunition to peddlers of "Muslim menace" panic (some of whom are now spinning the paranoid fantasy that Judge Martin really is a Muslim but is hiding it to mislead the infidels). The main culprits are those who would sensationalize and twist facts to advance their agenda, be it atheism or Muslim-bashing. But a misguided notion of cultural sensitivity that amounts to a special concern to avoid giving religious offense to Muslims can only lead us further down that path.

Cathy Young is a contributing editor at Reason magazine and a columnist at RealClearPolitics, where this article originally appeared.