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Feb 28 2012

Assault is not free speech

I have to say, I was initially kind of skeptical of this story about the judge who threw out a lawsuit against a Muslim for assaulting an atheist.  Several people have emailed us looking for a comment on it, and I hesitated to jump on it until I knew the whole story.

It’s not that I thought a Muslim wouldn’t attack an atheist, it’s just that people have cried wolf on exaggerated versions of imaginary creeping Islam in the United States — with several southern states going so far as to pass essentially useless and redundant legislation banning Sharia law, as if that were a serious threat.

In this case, though, having read the details of the case and listening to much of the court’s audio, a judge did, in fact, come out with something that sounds very, very dumb.

(Continued…)

“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.”

Yeah, except, the thing is… he’s not.  The first amendment has many exceptions established by legal precent, but “doing things that other people find offensive” is not one of them.   Both the judge and the defendant, of course, have the right to find it offensive, and to publicly state all day that they find it offensive, and many people might even be sympathetic to them.

But you know, tough luck.  Assault is assault, and its legal status is in no way affected by the fact that the person committing the assault felt really, really mad about their religion not being respected.  Illegal stuff doesn’t become legal just because religion is involved, and that should go equally for every religion.

I shall, however, remain skeptical about the noise right wing blogs are making about how the judge was somehow following Sharia law, and therefore THE THREAT IS BACK, PEOPLE!  The judge’s dumb decision was his own, and I hope this gets further appeals.

Oh yeah, and also, notice that this story contains data points both for and against the notion that atheists are the most hated group in America.  In a case where Islam is against atheism, the atheist lost.  However, the same people who can usually be expected to hate on atheists, seem to be largely siding with the plaintiff.  So there’s that.

 

* Note: Although the copied transcript claims that the judge said “I’m a Muslim,” he emphatically denies that this is the case.

Edit: It sounds to me as if what he really said was “I’m a Muslim, I’D find it offensive.” I think what he was trying to say was “Hypothetically speaking, if I were a Muslim, then I would find it offensive.” However, he took an unfortunate verbal shortcut that completely changed the apparent meaning.

40 comments

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  1. 1
    Tomasz R.

    It looks like the only solution to religious feelings (which include feeling offended ang being aggressive on religious grounds)is medical. A therapy, perhaps drugs to straighten their emotions up. Voluntary if their reaction is just feeling bad, but mandatory if it makes them attack or threaten other people or institutions.

  2. 2
    jacobfromlost

    “However, the same people who can usually be expected to hate on atheists, seem to be largely siding with the plaintiff. So there’s that.”

    They hate Muslims more than they hate us!

    It warms the cockles of my heart.

  3. 3
    Supernova

    Of course it doesn’t fall outside of his First Amendment rights. But even if it did, I still have no idea where this judge went with this. Even if the guy had displayed a message or expressed a sentiment that (somehow) went beyond his First Amendment rights, where is the legislation or precedent that then gives any other citizen the right to immediately assault him?

    More than anything this decision seems perplexing. It appears that the judge made his decision entirely based upon his own feelings, with no relevent law applied. There’s a kind of irony in the fact that this is basically how cases are decided by the Muslim judges of Saudi Arabia.

    And since this decision appears to be so ridiculous, why doesn’t the guy appeal? Not worth the trouble?

  4. 4
    Victoria

    Look at how political polarisation in America makes people utterly craven in the face of serious threats to free expression. Apparently if the American right-wing takes up an issue you have to fight this knee-jerk, spasmodic response to be against it. That is profoundly sad.

    How you American ‘liberals’ and supposed atheists have managed even to find fault with legislation banning Sharia law is beyond me. Again I guess the sense of righteous purity that comes with never agreeing with a conservative on any issue ever, outweighs actually defending free expression from physical assault, a crime aided by a judge clearly biased by a sense of religious entitlement.

    1. 4.1
      Jasper of Maine

      You are mistaken. As a liberal, my reaction has always been to enforce rights and law.

      It’s just that when the conservatives take action, they’re usually breaking the law/constitution, so my reaction is typically the same.

      Sharia law cannot be banned unless it is in violation of US law, because outside of US law, it’s really the personal business of others. This applies to anything.

      This isn’t complicated.

    2. 4.2
      Russell Glasser

      If I’m against laws banning Sharia law, it’s obviously not because I think Sharia law is good. I’m against it because I think they are introduced for the sole purpose of idiotic grandstanding against a threat that doesn’t exist. The U.S. Constitution already prohibits Congress from making laws respecting an establishment of religion. They would have to pass a Constitutional amendment in order to take that step at all, and only a crazy person would imagine that such an amendment would occur with a 3/4 majority, especially given that American Muslims account for less than 1% of the population. And of course if the amendment was passed, it would override any state laws anyway.

    3. 4.3
      G.Shelley

      I’m assuming you are somehow aware that the concept of freedom of speech is very much a liberal value

    4. 4.4
      Jdog

      “‘Liberals’ and supposed atheists”? I call troll.

  5. 5
    ema

    Supernova,

    From a comment on the linked legal blog:

    The most chilling thing is the judge raised the “mistake of law” defense (which is almost never applicable — and certainly not, here) in discussing the defendant’s mens rea. Judge Martin said the attacker could not have had a criminal intent to harass because he believed the victim — “Zombie Mohammed” — was breaking the law.

  6. 6
    george.w

    I feel the same way about glitter-bombing Rick Santorum. Hate him, diss him, argue against him (I do all three), but assault is assault. Allowing for differences in severity and potential for injury of course.

    1. 6.1
      N. Nescio

      I’m glad I’m not the only person who thinks that glitter-bombing is assault.

  7. 7
    David

    This is an audio recording of the proceedings:

    http://www.youtube.com/watch?v=Sv9IyrpOnbs

    At around 31:28 or so, it certainly sounds like he (the judge) declares, “I’m a Muslim”.

  8. 8
    fred jones

    A Muslim going ape shit and assaulting others, because of a few words, a harmless comic, or someone burning a copy of a book.

    I find that hard to believe, surely they are not so deluded they arrogantly think they have a right to kill and harm others who don’t agree with a viewpoint that can’t even be proven as factually true in any sense.

    That judge needs to pull his head out of his ass

  9. 9
    MAtheist

    I just finished listening to the court’s audio, for those that can’t be bothered, it goes something like this …

    irrelevant
    irrelevant
    irrelevant
    irrelevant
    instruction about Islam
    irrelevant
    irrelevant
    Judge says, “I’m a Muslim. I find it offensive.” (this is around 31:30 in the audio)
    (don’t know if he meant if he was a Muslim, he would find it offensive, but that’s not how he worded it)
    misinformation about the first amendment
    irrelevant
    irrelevant
    more instruction about Islam
    the defendants intent wasn’t to harass, he just wanted to have the offensive situation negated
    case dismissed

    My initial reaction was stunned injustice, then I watched the video of the confrontation, and honestly found it to be milder than I expected. So, now I am not sure what to think. I am still left with the impression that the judge was not impartial, but I don’t know if I would consider what happened to be harassment either.

  10. 10
    NoApologetics

    Nobody got hurt requiring medical attention. Everybody got butthurt.

    But the judge admonishing the assailed while not telling the assailant to keep his hands to himself(IMHO encouraging further behavior.)

    Not OK.

    creeping sharia aside…

  11. 11
    HJO

    I’m baffled, and concerned – the defendant is a vigilante. Any conflict should have been submitted to the law. Why else pay the police overtime to watch parades? This acceptance of vigilante justice is what encourages honor killings.

  12. 12
    Warp

    Even if the confrontation was so mild that it wasn’t deserving of a lawsuit (and hence rightfully dismissed), the problem is that the judge gave all the wrong reasons to dismiss the case. He did not say “I have reviewed all the evidence and came to the conclusion that there was no assault nor harassment; you may appeal if you want”. He ranted about insulting islam, as if that justifies any kind of violent response. *That* is the major problem with this, not that the case was dismissed.

    1. 12.1
      MAtheist

      I agree, that and the fact that the judge did nothing in the way of instructing the defendant. It should have been made clear that just being offended gives no cause for physical action. Stressing that you do not have a right to not be offended in this country, and possibly adding that calling 911 because you feel offended is an abuse of public services.

  13. 13
    mond

    ‘Here is an idea or a notion that you’re not allowed to say anything bad about; you’re just not. Why not? — because you’re not!’ – Douglas Adams

  14. 14
    Markus

    So if the Westboro Baptist Church really offends me I can attack them and get the case thrown out? PROFIT!

  15. 15
    John Kruger

    ” 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.”

    There are freedom of speech rights outside the First Amendment? He has that right, but the judge is not going to defend it? What the heck is he saying here? For Pete’s sake, saying something offensive is not an a priori incitement to violence.

    I am amazed that so many people think being offended by something is an excuse for violence. “You shouldn’t have made me angry” is the excuse of bullies of the worst kind. The sooner Muslims learn that they cannot get their way by the use of violence the better.

    1. 15.1
      Jasper of Maine

      The meaning behind this ruling is fairly clear.

      You have a blank check to attack as many people as you like as long as they offend you enough.

      It’s gonna be awesome.

    2. 15.2
      Russell Glasser

      “You shouldn’t have made me angry” is the excuse of bullies of the worst kind.

      And abusive spouses.

  16. 16
    Phillip IV

    I noticed something in that judge’s remarks that could be a clue to the mystery:

    In fact, those of you who know me, know that I’m an Army reservist with 27 years of service towards our country (and still serving). I’ve done one tour in Afghanistan, and two tours in Iraq, and am scheduled to return to Afghanistan for a year this summer.

    In Pennsylvania, District Judges are not required to be lawyers or to have studied law. They only have to pass a certification course, but I would suspect that that course doesn’t really cover constitutional law in any detail, since a District Judge wouldn’t usually have to deal with such cases.

    Given the piss-poor quality of his constitutional arguments, I feel fairly certain that Judge Martin hasn’t studied law, and really has no (and isn’t required to have any) idea what he’s talking about with regards to the First Amendment.

    That doesn’t mean, though, that the decision itself, the dismissal, wasn’t correct – the decision wasn’t really based on that bizarre little rant he added at the end, so while his remarks regarding Freedom of Speech are waaaaaay off base, there might still be little point in an appeal.

    1. 16.1
      Russell Glasser

      In Pennsylvania, District Judges are not required to be lawyers or to have studied law.

      Wut.

      Citation?

      1. Phillip IV

        Last sentence of the first paragraph:

        http://www.aopc.org/T/SpecialCourts/default.htm

        1. Russell Glasser

          Interesting.

          It sounds to me like these “special courts” must be especially fertile ground for appeals, is that right?

          1. Phillip IV

            There is an unlimited right to appeal District Court decisions, so I wouldn’t be surprised. Although the claims in question are usually small – as far a I understand, Martin only presided over the preliminary hearing, if he hadn’t dismissed, the full trial would have been in front of a higher Judge.

            In this case, though, the result of an appeal might still be an dismissal (if the facts of the incident are as difficult to discern as Judge Martin claims), just without the moronic little rant tacked on.

  17. 17
    pyrobryan

    “But you have that right, but you are way outside your bounds of First Amendment rights.”

    I would like someone to explain this. He has the right, but he doesn’t have the right? How does that work?

    How would an appeal even work if jeopardy was attached at the first trial?

  18. 18
    George From NY

    Kazim,

    * Note: Although the copied transcript claims that the judge said “I’m a Muslim,” he emphatically denies that this is the case.

    Listen to any of the numerous copies of the audio recording. It’s right there; 31:28 – 31:31.

    “I’m a Muslim. I find it offensive.”

    Speaking of that recording, this same judge threatened Perce over the latter releasing it. The judge now denies he even said THAT.

    Judge Mark Martin — Credibility: Zero.

    I shall, however, remain skeptical about the noise right wing blogs are making about how the judge was somehow following Sharia law, and therefore THE THREAT IS BACK, PEOPLE! The judge’s dumb decision was his own, and I hope this gets further appeals.

    Talaag Elbayomy cannot be tried again on this charge; that would be double-jeopardy. I don’t know what Ernest Perce’s options are vis-a-vis filing a civil suit or some kind of recall/impeachment action against Martin.

    As for the “dumb decision,” yes it was Martin’s own but it was made from the bench, with the authority of the law, from a judge who clearly, repeatedly and approvingly referenced Islamic culture, belief and custom and gave weight to the defendant’s belief that American law was in accord with Sharia regarding blasphemy.

    I agree that some people are getting overheated about this; from some op-eds you’d think the judge drew a scimitar from under his robes and screamed “Death to infidels!”

    But what we’ve got here is quite bad enough as is.

    1. 18.1
      Russell Glasser

      “I’m a Muslim. I find it offensive.”

      I think I can clear this up, after listening to the audio a couple of times. The judge did, after all, come out afterwards and SAY he wasn’t a Muslim, and I’m disinclined to think he is now faking his religious beliefs as a way of backpedaling.

      What I think he said, which was written incorrectly by the text on the video, was “I’m a Muslim, I’D find it offensive.” The wording is sloppy, but it would make more sense if he had started it with “Let’s say.” In other words, the thing he was trying to say was, “If I were a Muslim, then I would find it offensive,” but he took an unfortunate verbal shortcut that people have seized upon.

      Of course, the appropriate legal response to that is the same whether he is an offended Muslim or hypothetically putting himself in the shoes of an offended Muslim: “Okay, so you’re offended. Who gives a shit?”

      Talaag Elbayomy cannot be tried again on this charge; that would be double-jeopardy.

      I am also no legal expert, but I don’t think the rules of double jeopardy mean that you can’t appeal the decision. Double jeopardy means that you can’t be retried once the case is settled. Successfully moving to appeal means that the case is not yet settled.

      1. jacobfromlost

        I think you are right. I don’t think he was saying he was a Muslim, but giving an example of what a Muslim would say in such a situation.

        It may have been more clear with body language, but audio doesn’t give you that.

        (This whole discussion reminds me of what Hitch once said: “But if the charge of offensiveness, in general, is to be allowed in public discourse, then without self-pity I think we should say that we too can be offended and insulted.”)

        watch?v=9DKhc1pcDFM It’s right at the beginning of this great discussion among Sam Harris, Daniel Dennett, Richard Dawkins, and Christopher Hitchens.

      2. George From NY

        Kazim,

        The “sloppy subjunctive” argument might well be true – and you’re not the only person I’ve heard make it.

        But I maintain that the audio recording, as stands, does not conclusively support that. I can make just as good an acoustical forensics case that Martin did, in fact, say he was a Muslim.

        Now, why would he say that if he’s not actually one? I dunno. But I simply cannot trust this guy after what I’ve seen from him – including his responses to subsequent media inquiries which were surely NOT off the cuff, but rather prepared and considered defenses against the criticism he received.

        1. Russell Glasser

          And I’m going to say that the question of whether we “trust” him is irrelevant, just as it is pretty much irrelevant whether he is actually a Muslim or not. Being Muslim is not a crime and has no bearing on what the ruling itself said; the ruling was a bad one irrespective of his personal beliefs.

          1. George From NY

            Being Muslim is not a crime and has no bearing on what the ruling itself said; the ruling was a bad one irrespective of his personal beliefs.

            Given the context and nature of Martin’s remarks and the facts of the case at hand, his being Muslim (if he even is) would be directly relevant.

            A judge’s religion has bearing if his bad rulings are direct consequences of the doctrines of said religion, or cause the judge to give unjust favor towards religion as motive or positive defense.

            For example, I will state plainly that a true-believing Dominionist Christian could not be trusted as a judge because such a person could not honestly swear allegiance to, nor honestly uphold, the 1st Amendment of the US Constitution.

            At some point, such a person must choose his master.
            (Matthew 6:24) ;)

  19. 19
    Maya

    I just started a petition to have Judge Mark Martin investigated for judicial misconduct for ignoring evidence of an attack by a Muslim on an atheist: https://www.change.org/petitions/judicial-conduct-board-of-pennsylvania-thomas-corbett-governor-of-pa-investigate-judge-mark-martin-for-condoning-religious-violence#

    PLEASE share this petition.

  20. 20
    ChaosSong

    CNN had a follow-up recently.

    http://religion.blogs.cnn.com/2012/02/28/judges-dismissal-of-atheists-harassment-claim-against-muslim-makes-waves/?hpt=hp_t3

    snip:

    The judge, in a phone interview with CNN, defended his ruling.

    “The commonwealth didn’t present enough evidence to show me that this person is guilty beyond a reasonable doubt,” Martin said. “That’s why I dismissed the case. Nothing as nefarious as what everyone’s thinking, that I’m a Muslim or I’m biased. I’m actually a Lutheran.”

    Martin added that he has served three tours of duty, totaling more than two years, in Iraq and Afghanistan, where he learned more about Muslim culture.

    “It just amazes me that people think that I’m biased towards Islam,” he added. “I got sniped at once, I got ambushed once, I got attacked by a mob once… I’ve served close to 27 years in the military – and have gone overseas – exactly to preserve that right [freedom of speech.]”

    But Martin also repeated his criticism of the atheist protester. “With rights come responsibilities. The more people abuse our rights, the more likely that we’re going to lose them,” he said. ” We need to start policing up our own actions, using common sense, in how we deal with others.”

    1. 20.1
      George From NY

      “With rights come responsibilities. The more people abuse our rights, the more likely that we’re going to lose them,” he said.

      Well, Judge Martin is certainly doing his part to make that come about.

      This idiot needs to just shut up and leave the bench. He understands less about 1st Amendment law than even the dimmest 1L student.

    2. 20.2
      Jasper of Maine

      But Martin also repeated his criticism of the atheist protester. “With rights come responsibilities. The more people abuse our rights, the more likely that we’re going to lose them,” he said. ” We need to start policing up our own actions, using common sense, in how we deal with others.”

      Eye… twitching…!

      The purpose of free speech is to say unpopular things. Popular speech doesn’t need to be protected.

    3. 20.3
      Erülóra Maikalambe

      Yup, we have the right to say anything we want, as long as the government doesn’t think it’s offensive. Is that really the world he wants to live in? Has he not heard of Orwell?

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