George Washington University law professor Jonathan Turley has been following the disturbing trend of countries trying to enact international treaties to provide protection for religious sensibilities.
He reports on a disturbing case in which Ernie Perce, American Atheists’ Pennsylvania State Director, when dressed as a zombie Mohammed during a Halloween parade in Mechanicsburg, PA was physically attacked by a Muslim. To add insult to that injury, the judge Mark Martin who heard the case (and identifies himself in his ruling as a Muslim) threw out the assault charge, suggesting that the assailant was just protecting his “culture”. He also ridiculed the victim, citing a bizarre interpretation of the First Amendment: “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 was also somewhat surprised at a judge using language like ‘piss off’ in a ruling.)
As Turley says:
The reference to the cultural motivations for assaulting Perce seems to raise a type of cultural defense. I have spent years discussing this issue with state and federal judges on the proper role of culture in criminal and civil cases. This is not a case where I would view that defense as properly raised. There are certainly constitutional (and yes cultural) norms that must be accepted when joining this Republic. One is a commitment to free speech. If culture could trump free speech, the country would become the amalgamation of all extrinsic cultures — protecting no one by protecting everyone’s impulses. Those countries referenced by the court took a different path — a path away from civil liberties and toward religious orthodoxy. It is a poor example to raise except as an example of what we are not. The fact that this man [the assailant Talaag Elbayomy] may have formed his views in such an oppressive environment does not excuse his forcing others to adhere to his religious sentiments.
Martin’s comments also heighten concerns over the growing trend toward criminalizing anti-religious speech in the use of such standards as the Brandenburg test, a position supported by the Obama Administration.
There are legitimate uses of the culture defense. However, when it comes to free speech, that is not just our controlling constitutional right but the touchstone of our culture.
Update: Reader David has provided a link to the audio of the court proceedings that Perce was allowed to make. The judge is now threatening a contempt citation if he releases it to public. I have a feeling that this will become a big story.
(Thanks to Fu Dayi)