The Case of the Zombie Mohammed
February 27, 2012 11:26 AM Subscribe

Pennsylvania judge Mark W. Martin dismissed assault charges against a man who attacked an atheist dressed as a zombie Mohammed in a Halloween parade, calling the victim a 'doofus.'
posted by Laminda (300 comments total) 8 users marked this as a favorite

Christian cognitive dissonance vortex imminent. Take shelter.
posted by Xoebe at 11:30 AM on February 27, 2012 [14 favorites]

This judge's words are deeply offensive to me as a Doofus-American.
posted by Horace Rumpole at 11:30 AM on February 27, 2012 [45 favorites]

The judge is the doofus here.
posted by KokuRyu at 11:31 AM on February 27, 2012 [7 favorites]

This is such a weird story, to see a right wing newspaper column blast the judge as activist and muslim makes it even weirder, like two wrongs making a right.
posted by mathowie at 11:32 AM on February 27, 2012 [6 favorites]

When being a doofus is outlawed, only outlaws will be doofuses.
posted by penduluum at 11:35 AM on February 27, 2012 [20 favorites]

Classic case of, "I'm pro-free speech until it offends me. Then you go die."
posted by astapasta24 at 11:35 AM on February 27, 2012 [23 favorites]

If assaulting "doofuses"* is legal, does this mean open season on politicians who put forward stunt bills?

*doofi? doofies? doofae?
posted by GenjiandProust at 11:37 AM on February 27, 2012 [3 favorites]

Is there any kind of letter-writing drive afoot to unseat that judge? I'd like to join.
posted by EmpressCallipygos at 11:38 AM on February 27, 2012 [3 favorites]

The judge is the doofus here.

Not really. The only reason this story has legs is because of the false claim that the judge is Muslim. Either the "victim" who released the tape recording manipulated that recording or the judge spoke in the "sportscaster subjunctive" and the "victim" misunderstood (along with the entire right-wing blogosphere).

But if you step out of the white heat of the "OMG, Muslim judge rules that attacks by Muslims don't count because of Sharia Law!!!!!" assholery, you have a case where the judge dismissed the case because of lack of evidence (utterly uncontroversial) and then spent a few minutes haranguing somebody for acting like an asshole (also uncontroversial--judges give lectures to people before their benches all the time). The bits of his harangue that get both the right and left riled up are those related to the 1st Amendment--but he wasn't issuing a judicial ruling when he said those things. He wasn't speaking "on the record" at all. He was simply trying to convince this guy that just because he has the "right" to say offensively stupid things about Islam that doesn't mean that the purpose of the First Amendment is to go around saying offensively stupid things about Islam.

This only becomes a serious issue if the judge makes an actual First Amendment ruling on the basis of his loose wording in an off-the-record lecture. That hardly seems likely to eventuate.
posted by yoink at 11:40 AM on February 27, 2012 [76 favorites]

For Halloween four years ago I dressed as McCain and received a number of threats. Some people don't understand: Halloween is SUPPOSED to be scary!
posted by exogenous at 11:41 AM on February 27, 2012 [5 favorites]

Civil-rights attorney Chester Darling agreed. “No one should go to court. It’s knuckle justice,” he said. “It’s a fair exchange.”

Maybe this Judge Mark W Martin went to the same law school as Chester Darling. They were probably even in the same cell block.
posted by koeselitz at 11:43 AM on February 27, 2012 [1 favorite]

Oh, and given that none of the links in the FPP point this out, the "Zombie Mohammed" was carrying a sign that read on one side "only Muhammed can rape America." So, yeah, the atheist dude was definitely being an asshole.
posted by yoink at 11:44 AM on February 27, 2012 [11 favorites]

The Muslim guy should have simply followed zombie Mohammed into an elevator.
posted by magstheaxe at 11:44 AM on February 27, 2012

Could wearing such a costume be considered incitement to violence?
posted by Ad hominem at 11:44 AM on February 27, 2012

He was simply trying to convince this guy that just because he has the "right"

You don't have to put the word "right" in quotes. Free Speech is an explicitly enumerated Right. The purpose of the First Amendment is to explictly permit you to say offensively stupid things about anything you want.
posted by mikelieman at 11:45 AM on February 27, 2012 [31 favorites]

Oh, and given that none of the links in the FPP point this out, the "Zombie Mohammed" was carrying a sign that read on one side "only Muhammed can rape America." So, yeah, the atheist dude was definitely being an asshole.

Maybe he was just proud that he discovered the shittiest possible sentence in the English language.
posted by theodolite at 11:45 AM on February 27, 2012 [4 favorites]

Not really. The only reason this story has legs is because of the false claim that the judge is Muslim.

I hadn't read that. I suppose in the echo-chamber of the Internet, the judge's post-decision remarks were conflated with the actual judgement; I had assumed the case was thrown out because the judge agreed that the assailant was "protecting his culture."
posted by KokuRyu at 11:45 AM on February 27, 2012

Crazy stuff like this is bound to keep happening until order is restored to Mechanicsburg by the new Heterodyne.
posted by gurple at 11:45 AM on February 27, 2012 [3 favorites]

In other ridiculous news of bad legal reactions to assaults, there's apparently a big question in Boston as to whether it's possible a case where lesbians beat up a gay man to be a hate crime (because, you know, they're all homosexuals, right?)

Um, absent any other information about the case I would certainly consider a situation where three lesbians beat up a gay guy to be far, far less likely to be a "hate crime" based on sexual orientation than a case where, say, three straight guys beat up a gay guy.
posted by yoink at 11:47 AM on February 27, 2012 [1 favorite]

Could wearing such a costume be considered incitement to violence?

I would suggest that being so mentally disturbed that you attack someone for wearing a costume is a bigger issue.
posted by mikelieman at 11:47 AM on February 27, 2012 [26 favorites]

He was simply trying to convince this guy that just because he has the "right" to say offensively stupid things about Islam that doesn't mean that the purpose of the First Amendment is to go around saying offensively stupid things about Islam.

I'd submit that saying offensively stupid things about Islam (or any other religion, creed, political party, rock band, etc.) is 100% beyond-a-doubt gold-plated First Amendment-protected speech. The "purpose" of the First Amendment is to protect loud-mouthed individuals from government assholes, like this judge.

Volokh has a good roundup of the story, including this head scratcher from the judge:

I find what’s on the other side of this [sign] very offensive. But you have that right, but you’re way outside your bounds of first amendment rights.

I'd support removing this judge for being a First Amendment doofus.
posted by BobbyVan at 11:48 AM on February 27, 2012 [30 favorites]

The bits of his harangue that get both the right and left riled up are those related to the 1st Amendment--but he wasn't issuing a judicial ruling when he said those things. He wasn't speaking "on the record" at all. He was simply trying to convince this guy that just because he has the "right" to say offensively stupid things about Islam that doesn't mean that the purpose of the First Amendment is to go around saying offensively stupid things about Islam.

Right, but his dicta shows abject ignorance of the First Amendment as it stands. Parading around as Zombie Muhammad while carrying a sign saying that "only Muhammed can rape America" may be stupid and offensive, but it is also very well within the "bounds of First Amendment rights," despite Judge Martin's bleats to the contrary.
posted by Sticherbeast at 11:48 AM on February 27, 2012 [6 favorites]

You don't have to put the word "right" in quotes. Free Speech is an explicitly enumerated Right. The purpose of the First Amendment is to explictly permit you to say offensively stupid things about anything you want.

Yes (although with a few caveats, obviously--one of which is being argued before the Supreme Court right now), but I'm distinguishing between a "legal right" (in this case unquestionable) and a "moral right" (in this case extremely doubtful."
posted by yoink at 11:48 AM on February 27, 2012 [1 favorite]

How is the fact that the doofus was an atheist even relevant to this story? What if it was a fundie Christian insulting Muhammed? How would your opinion of the ruling change?
posted by rocket88 at 11:49 AM on February 27, 2012 [1 favorite]

We like atheists, that's why!
posted by KokuRyu at 11:50 AM on February 27, 2012 [4 favorites]

Right, but his dicta shows abject ignorance of the First Amendment as it stands. Parading around as Zombie Muhammad while carrying a sign saying that "only Muhammed can rape America" may be stupid and offensive, but it is also very well within the "bounds of First Amendment rights," despite Judge Martin's bleats to the contrary.

Sure. But "Judge expresses himself poorly in off-the-record remarks to some doofus" is hardly a major story, is it? Again, no part of his legal analysis of the case rested on these poorly expressed comments.
posted by yoink at 11:50 AM on February 27, 2012 [2 favorites]

By the way, we should also remember that the ONLY record we have of the judge's comments are from a recording made and released by the aggrieved "victim." We have absolutely no way of checking to see if the tape was manipulated at all (as a number of rather head-scratching comments on it might well seem to suggest: e.g. "I'm a Muslim" when he isn't and the one BobbyVan quotes above where he seems in one sentence to both affirm and deny the "victim's" First Amendment right to do what he did).
posted by yoink at 11:52 AM on February 27, 2012 [3 favorites]

Christian cognitive dissonance vortex imminent. Take shelter.

On the one hand, it's license to beat up people who mock your religion*. On the other hand, it's a Muslim judge handing down a verdict that seems influenced by Sharia law.

* in an absurdist extreme, one could imagine "doofus" becoming an obscene slur meaning heretic (like a kind of N-word); call someone a "doofus" and you'll have the right to beat, torture, and lynch them with legal impunity.

Or does it only apply to making fun of Islam?
posted by Davenhill at 11:53 AM on February 27, 2012

*doofi? doofies? doofae?

Scholars take doofus back to the Latin dūfus, dufō, meaning "to wear an air-inflated bull bladder on one's head," itself possibly a corruption of bōs, bov-, the root of "bovine," or bulla, "bladder." Possible connections with the Gothic ufbauljan, "to inflate," Middle Dutch puyl, "scrotum," Middle Lithuanian bulìs, "buttocks," Sanskit bulíṣ, "pudenda," remain unsubstantiated.
posted by Nomyte at 11:54 AM on February 27, 2012 [17 favorites]

it's a Muslim judge

Only if "Lutheran" is a hitherto unknown Muslim sect.
posted by yoink at 11:54 AM on February 27, 2012 [20 favorites]

Civil-rights attorney Chester Darling agreed.

Chester came from out of the courthouse.
In the back room, he was everybody's Darling.
But he never lost his head,
Even when he was talking shit,
Hey babe...
posted by PeterMcDermott at 11:55 AM on February 27, 2012 [3 favorites]

Whew! I misread this at first. Thought the judge had ruled against him because he was a Goofus! I was all "when will we finally throw off the yokes of the Gallant oppressors?"
posted by It's Raining Florence Henderson at 11:55 AM on February 27, 2012 [20 favorites]

He wasn't speaking "on the record" at all. He was simply trying to convince this guy that just because he has the "right" to say offensively stupid things about Islam that doesn't mean that the purpose of the First Amendment is to go around saying offensively stupid things about Islam.

That's as may be, but even if you DO choose to exercise your first amendment rights in an assholish way, that doesn't waive your right to protection from assault.

That's where I got the problem. Someone who tried to beat up Fred Phelps would be arrested for assault; someone who did try to beat up someone else saying something dickish got the charges dropped. Why the double standard?
posted by EmpressCallipygos at 11:56 AM on February 27, 2012 [4 favorites]

Only if "Lutheran" is a hitherto unknown Muslim sect.

SHHHHHH!
posted by mikelieman at 11:56 AM on February 27, 2012 [2 favorites]

That's where I got the problem. Someone who tried to beat up Fred Phelps would be arrested for assault; someone who did try to beat up someone else saying something dickish got the charges dropped. Why the double standard?

Fred Phelps has a better legal team.
posted by mikelieman at 11:57 AM on February 27, 2012 [1 favorite]

>*doofi? doofies? doofae?

Doofopodes. It's Greek.
posted by Godspeed.You!Black.Emperor.Penguin at 11:58 AM on February 27, 2012 [11 favorites]

Oh sure, you guys all stand up for doofuses now, but once there's one in the White House, you guys are out with your signs trying to get him out of office. Sometimes you hide behind policy, but we all really know you're angry there's a doofus in the White House.

//This kind of reminds me of that Issac Asimov quote about anti-intellectualism hijacking democracy to claim that ignorance should be respected equally with intelligence.
posted by mccarty.tim at 12:02 PM on February 27, 2012 [1 favorite]

Pennsylvania judge ... dismissed assault charges against a man who attacked

There were never any assault charges. The charge was "harassment". The "assault" angle seems pretty dubious as the defendant says he only grabbed the sign and the video evidence is not only dark and unclear but is single-sourced by the accuser.
posted by Dano St at 12:02 PM on February 27, 2012 [5 favorites]

you have a case where the judge dismissed the case because of lack of evidence (utterly uncontroversial)

According to this posting by Jonathan Turley, the atheist dressed as the Pope was prepared to testify but disallowed by the judge. Similarly, the judge refused to admit into evidence the Youtube video documenting the assault. So rather than a lack of evidence, it seems the judge purposely excluded evidence. When you add that to the judge's highly prejudicial lecturing of the victim, I think you have something a bit more serious.
posted by BobbyVan at 12:02 PM on February 27, 2012 [18 favorites]

The problem isn't that this particular doofus judge isn't removed, the problem is the larger body of doofus judges who aren't removed when they make these kinds of rulings against atheists, gays, and other minorities.
posted by Blazecock Pileon at 12:02 PM on February 27, 2012 [2 favorites]

Also, hey, that's the paper my mom gets! It's not that great, and she gripes every morning about it, but won't switch to the NY Times probably because she doesn't want to soften the Old Grey Lady's fall into bankruptcy.
posted by mccarty.tim at 12:03 PM on February 27, 2012

Arresting officer and Zombie Mohammed were not doofus.

Raptor Jesus, Pedo-bear Mohammed, Hamster Ball Buddha, Chicken George, Mitt the Ripper, Superhero Santorum (who flies via frothy propulsion), Meth Head Ted Haggard, and Fox Hole Bertrand Russell are all completely reasonable Halloween costumes! Ain't even poor taste really, well maybe Fox Hole Bertrand Russell, meh maybe not.

I'd consider the man who committed assault enough of a "menace to society" that he should face the aggravated assault charge. I'd expect the judge to moderate his sentence somewhat after the conviction, but fundamentally the charge should've proceeded.
posted by jeffburdges at 12:03 PM on February 27, 2012 [2 favorites]

That's as may be, but even if you DO choose to exercise your first amendment rights in an assholish way, that doesn't waive your right to protection from assault.

That's where I got the problem.

And, again, this was not part of his reason for dismissing the case. He did not dismiss the case on the grounds that "victim was saying mean things about the Prophet, PBUH."
posted by yoink at 12:04 PM on February 27, 2012 [2 favorites]

Classic case of, "I'm pro-free speech until it offends me. Then you go die."

Definitely! I can't believe Martin was given the death penalty, especially considering he was the plaintiff in this case. Pennsylvania sure does put an inordinate amount of power in a District Judge's hands. How many more must die before something is done?
posted by griphus at 12:05 PM on February 27, 2012 [5 favorites]

The Volokh Conspiracy link is more unbiased than most in the OP, IMO.

Disclaimer: I'm an atheist. Let's get this all out of the way.

(1) That guy is an asshole
(2) His alleged attacker is a bigger asshole
(3) The judge may or may not understand the First Amendment. He also seems like kind of an asshole

That's as may be, but even if you DO choose to exercise your first amendment rights in an assholish way, that doesn't waive your right to protection from assault.

(4) Even assholes are innocent until proven guilty. From the Volokh Conspiracy link:

it appears that Elbayomy was prosecuted for criminal harassment, which requires an “intent to harass, annoy, or alarm,” and a mere physical attack with an attempt to grab a sign might or might not qualify, see the pen-grabbing discussion in this case. The acquittal itself might thus be justified, depending on exactly what evidence was introduced.

This sounds more like a case of incompetent prosecution.
posted by muddgirl at 12:06 PM on February 27, 2012 [21 favorites]

And, again, this was not part of his reason for dismissing the case. He did not dismiss the case on the grounds that "victim was saying mean things about the Prophet, PBUH."

So, what IS the reason, then?
posted by EmpressCallipygos at 12:06 PM on February 27, 2012

I was genuinely surprised to find that the judge's name wasn't District Justice Mohammed Mark Mohammed Mohammed Martin. How liberated. You go, boy.
posted by herbplarfegan at 12:06 PM on February 27, 2012

According to this posting by Jonathan Turley, the atheist dressed as the Pope was prepared to testify but disallowed by the judge. Similarly, the judge refused to admit into evidence the Youtube video documenting the assault.

Do we have any idea why he excluded either piece of evidence? It's pretty hard to get upset about a piece of evidence being excluded unless you know why.
posted by Bulgaroktonos at 12:08 PM on February 27, 2012 [3 favorites]

I can't believe ~~Martin~~ Perce was given...

FTFM
posted by griphus at 12:08 PM on February 27, 2012

the judge's highly prejudicial lecturing of the victim

"Highly prejudicial"? It hardly seems to me to be an extreme position to hold that walking around with a sign saying "only Muhammed can rape America" is a stupid thing to do and that the world would be better off if people didn't do such a thing. Would you personally, BobbyVan, feel upset if a judge told someone who was carrying a sign saying "only Christ can rape America" that he was a "doofus"? And made an inelegantly expressed comment to the effect that while he was within his First Amendment rights to do so, saying that sort of thing was hardly in the spirit of the First Amendment?
posted by yoink at 12:08 PM on February 27, 2012 [4 favorites]

It's pretty hard to get upset about a piece of evidence being excluded unless you know why.

Well, it should be hard. Alas, objectively speaking it's obviously pretty damn easy.
posted by yoink at 12:10 PM on February 27, 2012 [1 favorite]

So, what IS the reason, then?

At the end of the Volokh link is a statement from the judge:

When I asked him why he dressed up as “Muhammad zombie,” he told me that it was because he was reflecting the Muslim belief that Muhammad rose from the dead, walked as a zombie, and then went to heaven. That was one of the reasons I tried to spend 6 whole minutes trying to explain and de-mystify Islam through my own knowledge, and in an attempt to prevent an incident like this recurring in my community. Unfortunately, the message was obviously not received in the vein that I had intended. And, in the interest of full disclosure, I did use the word “doofus,” but didn’t call him that directly; I said something akin to “ if you’re going to mock another religion or culture, you should check your facts, first- otherwise, you’ll look like a doofus.”;

In short, I based my decision on the fact that the Commonwealth failed to prove to me beyond a reasonable doubt that the charge was just; I didn’t doubt that an incident occurred, but I was basically presented only with the victim’s version, the defendant’s version, and a very intact Styrofoam sign that the victim was wearing and claimed that the defendant had used to choke him. There so many inconsistencies, that there was no way that I was going to find the defendant guilty.

The charge was apparently not assault, but criminal harassment.
posted by muddgirl at 12:10 PM on February 27, 2012 [22 favorites]

> Parading around as Zombie Muhammad while carrying a sign saying that "only Muhammed
> can rape America" may be stupid and offensive, but it is also very well within the "bounds of
> First Amendment rights,"

So, that would protect the ZM guy with the sign from any speech-restraining actions by the government, which is the entity restrained by the constitution. How does that have any connection with speech-restraining actions taken by a private individual? Was Talaag Elbayomy a government agent of some kind? If not, how is any principle involved here other than that citizens may not assault one another? (In which case the notion of provocative fighting words previously expressed by the victim of the assault might be relevant.) Mefi lawyers? Educate me here?
posted by jfuller at 12:11 PM on February 27, 2012 [4 favorites]

> When being a doofus is outlawed, only outlaws will be doofuses.

Dufii
posted by mmrtnt at 12:11 PM on February 27, 2012

The spirit of the First Amendment compels you! The spirit of the First Amendment compels you!

Sorry. Just exorcising my rights to free speech.
posted by It's Raining Florence Henderson at 12:12 PM on February 27, 2012 [10 favorites]

What has always confused me about religious violence over perceived insult is the implicit admission that the deity they believe rules the universe can't be trusted to do the punishment later on. If a person is constantly claiming that their God is just and powerful, why would they bother trying to punish people for mocking their religion or disobeying religious laws here on earth? They're going to face justice in the afterlife, right?

To me, it seems like simple reactionary insecurity.
posted by deanklear at 12:13 PM on February 27, 2012 [10 favorites]

I should perhaps go with Mitt the Dead Jew Dunker instead of Mitt the Ripper. Also, I've learned that Hamster Ball Buddha isn't actually an internet thing yet, so I'll leave you with this instead.
posted by jeffburdges at 12:14 PM on February 27, 2012

> When being a doofus is outlawed, only outlaws will be doofuses.

Dufii

Dufi, Dufii would be the plural of Dufius, which is not a thing.

Dufae is the plural of the feminine Dufa, which I'm happy to have be a thing.
posted by Bulgaroktonos at 12:14 PM on February 27, 2012 [2 favorites]

According to this posting by Jonathan Turley, the atheist dressed as the Pope was prepared to testify but disallowed by the judge.

Unless I'm missing something, the judge didn't disallow the witness, since he was never called to testify. You can't just raise your hand at the courtroom and chime in, correct? Considering there seems to be a pattern suggesting incompetent prosecutors, this wouldn't be surprising.
posted by zombieflanders at 12:16 PM on February 27, 2012

So, that would protect the ZM guy with the sign from any speech-restraining actions by the government, which is the entity restrained by the constitution. How does that have any connection with speech-restraining actions taken by a private individual? Was Talaag Elbayomy a government agent of some kind? If not, how is any principle involved here other than that citizens may not assault one another? (In which case the notion of provocative fighting words previously expressed by the victim of the assault might be relevant.) Mefi lawyers? Educate me here?

The judge had said that the ZM guy was acting outside of the bounds of First Amendment rights, which are indeed rights against government intrusion into free speech. Indeed, the judge's comments on the First Amendment have no legal weight whatsoever, because the case was not dismissed on a First Amendment basis.

That said, I was under the impression that First Amendment protection would extend to a prohibition on the government legalizing violence against people because of their speech, e.g. the government could not have a law which stated that it was okay to assault people if they speak ill about your religion. I may be wrong on this.
posted by Sticherbeast at 12:17 PM on February 27, 2012 [1 favorite]

According to this posting by Jonathan Turley, the atheist dressed as the Pope was prepared to testify but disallowed by the judge. Similarly, the judge refused to admit into evidence the Youtube video documenting the assault . So rather than a lack of evidence, it seems the judge purposely excluded evidence. When you add that to the judge's highly prejudicial lecturing of the victim, I think you have something a bit more serious.

Not sure if you were joking here or not. First, I don't think this was a trial, where evidence is admitted or not. It looks like a pre-trial hearing. What makes you think the victim can provide evidence or testimony during pre-trial hearing? What evidence would a guy dressed like the Pope add? What makes you think a youtube video was even proper evidence here?

Also, if you just look at this as one guy punching another guy on Halloween, I think you'll find a lot of those types of charges are dismissed by judges all the time, everywhere.
posted by jabberjaw at 12:17 PM on February 27, 2012 [6 favorites]

Would you personally, BobbyVan, feel upset if a judge told someone who was carrying a sign saying "only Christ can rape America" that he was a "doofus"? And made an inelegantly expressed comment to the effect that while he was within his First Amendment rights to do so, saying that sort of thing was hardly in the spirit of the First Amendment?

Unless I willingly signed my case over to Judge Judy, yeah I would feel upset. Assuming I was the victim, I'd be even angrier if the case against the defendant was dismissed in such circumstances. I'd probably wonder if the content of my sign played a role in the dismissal.

Again Yoink, you reference the "spirit" of the First Amendment. Earlier you referred to the "purpose" of the First Amendment. Care to enlighten us about what you mean exactly?
posted by BobbyVan at 12:18 PM on February 27, 2012

jfuller, the wikipedia article you quoted makes it clear that "mere offensiveness" a la flag-burning and blasphemy does not qualify as fighting words. Fighting words are a personal attack, not a political statement some random guy at a parade doesn't happen to like.
posted by vorfeed at 12:19 PM on February 27, 2012 [1 favorite]

Zombie Muhammad certainly speaks clearly for somebody who is being "choked". I guess he has supernatural powers after all.
posted by Dano St at 12:22 PM on February 27, 2012

Horace Rumpole: This judge's words are deeply offensive to me as a Doofus-American.

Are you in league with the Idiots of America? You know, frat guys, DJs, loud-mouth old bitches, investment bankers, the tramp stamps, parrot heads, anti-vaccination crusaders, and people who won’t shut up about scuba diving? ("It's a whole different world down there").
posted by filthy light thief at 12:24 PM on February 27, 2012 [5 favorites]

Not really. The only reason this story has legs is because of the false claim that the judge is Muslim. Either the "victim" who released the tape recording manipulated that recording or the judge spoke in the "sportscaster subjunctive" and the "victim" misunderstood (along with the entire right-wing blogosphere).
...
Oh, and given that none of the links in the FPP point this out, the "Zombie Mohammed" was carrying a sign that read on one side "only Muhammed can rape America." So, yeah, the atheist dude was definitely being an asshole.

Are you just trolling or something? Maybe this guy is a huge asshole but on what planet does that make it legal to for random people to beat someone up if they feel they are?

Even if the sign was outside the bounds of the first amendment, let's say it was libelous or slanderous or whatever. That wouldn't make it legal for some random person to assault the person carrying the sign.

even if the sign were illegal that wouldn't make it legal to beat someone up. I cannot understand how anyone cannot understand this.

Would you personally, BobbyVan, feel upset if a judge told someone who was carrying a sign saying "only Christ can rape America" that he was a "doofus"?

The other guy was dressed as a 'creepy pope' who was making jokes about 'wanting people's children'. He didn't get assaulted by any Catholics.

From the volokh link it sounds like the police only saw him grabbing the sign. But the video claims he was being choked.

Anyway, your position here is really indefensible. The victim was not on trial, being a 'doufus' shouldn't mean you lose your rights to equal protection under the law.

That said, I was under the impression that First Amendment protection would extend to a prohibition on the government legalizing violence against people because of their speech, e.g. the government could not have a law which stated that it was okay to assault people if they speak ill about your religion. I may be wrong on this.

Yes, of course you're right. That's why the police have to protect Fried Phelps or if the KKK or neo-nazis organize a march the police are required to actively protect them. Otherwise they could just let mobs beat them up.

---

Anyway, this judge has obviously angered the rightwing paranoia sphere but in this case I think he deserves it. He could have simply said "eh, there's not enough evidence here" and dismissed the case. Going on a rant that (incorrectly) claims the first amendment is limited and berating the victim is ridiculous. He could have said "I think you're an anti-Muslim bigot and therefore you're testimony isn't reliable" or something like that.
posted by delmoi at 12:31 PM on February 27, 2012

Again Yoink, you reference the "spirit" of the First Amendment. Earlier you referred to the "purpose" of the First Amendment. Care to enlighten us about what you mean exactly?

Sure. Although let me begin by saying that it doesn't matter at all if you agree or disagree with me about either the "purpose" or the "spirit" of the First Amendment from the point of view of legal decisions based upon it. There all that matters is the letter of the Amendment and the long legal history of decisions based upon it. I have no doubt whatsoever that if this judge had been trying a First Amendment case (he wasn't) and if the issue on which the case turned had been the legality of publicly expressing the opinion that "only Mohammed can rape America" or "only Christ can rape America" that this judge--like pretty much every judge in the USA, would have said "sure, these are offensive opinions, but it is obviously the case that citizens have a First Amendment right to express offensive opinions." I'm reasonably sure that the oddly contradictory sentence you posted earlier (assuming it was not deliberately edited by the "victim" who--I remind everyone again--both recorded AND released the only record we have of these comments) was meant to mean "yes, you have a First Amendment right to make these comments, but this isn't a First Amendment case--we're just talking about whether or not what you did was a good idea or not."

So, that said (he says, knowing perfectly well that the preceding paragraph will be ignored and that what he says next will be responded to with "but that's NOT what the First Amendment SAYS!!!"), I would say that the spirit in which the First Amendment was passed, or the vision of society out of which it arises is one in which we say "it is not the government's job to determine what ideas are or are not sound. The best way for us as a society to arrive at truth is to protect the rights of speakers with radically competing visions of the truth--even if those visions are unpopular and would be subject to a "majority veto"--to express and promulgate those visions as forcefully as possible. Over the long haul we can be confident that good ideas will drive out bad ideas where all ideas can compete equally for public attention." I would say that this vision is one that tolerates mean minded stupidity (such as parading around with a sign saying "only Mohammed can rape America") only because it is too dangerous to give the government the power to pick and choose what counts as "mean minded stupidity" rather than "an unpopular truth." But this is definitely tolerating an inevitable downside to a system which envisions people of good will exploring their genuine differences rather than empty-headed hate-mongers flinging insults back and forth.
posted by yoink at 12:33 PM on February 27, 2012 [9 favorites]

Are you just trolling or something? Maybe this guy is a huge asshole but on what planet does that make it legal to for random people to beat someone up if they feel they are?

The judge did not hold that it was "legal for random people to beat someone up." Try responding to what the judge ruled rather than whatever your fantasy version of it is.
posted by yoink at 12:34 PM on February 27, 2012 [15 favorites]

Is the full transcript/judgement somewhere?
posted by empath at 12:35 PM on February 27, 2012

Maybe this guy is a huge asshole but on what planet does that make it legal to for random people to beat someone up if they feel they are?

At no point was anyone beat up or was anyone accused of beating someone up. This sort of hyperbole is not helpful.

I agree that the judge engaged in a particularly common kind of victim-blaming in lecturing Zombie Mohammed on the misguided offensiveness of his costume and his sign.
posted by muddgirl at 12:37 PM on February 27, 2012

Anyway, your position here is really indefensible. The victim was not on trial, being a 'doufus' shouldn't mean you lose your rights to equal protection under the law.

That didn't happen; the judge dismissed a case for lack of evidence. I wasn't there so I don't know what admissible evidence he heard, so I can't comment on whether or not I agree with his ruling. After making his decision (on the separate basis of lack of evidence) the judge went on to call the alleged victim a doofus. He didn't say that it was legal to assault people for being doofuses.

Calling the victim a doofus means that the judge is probably an asshole, but let's not overstate what happened.
posted by Bulgaroktonos at 12:38 PM on February 27, 2012 [2 favorites]

Even if the sign was outside the bounds of the first amendment, let's say it was libelous or slanderous or whatever. That wouldn't make it legal for some random person to assault the person carrying the sign.

No part of the judge's ruling on the case relies upon the sign being beyond the protection of the First Amendment. Nor does he claim (at least, inarguably) even in his off-the-record comments (which, once again, the ONLY version of to which we can refer was recorded, edited and made public by the 'victim'--we have no way of knowing whether or not it has been tampered with) that the sign would have been beyond those protections IF the case had been a First Amendment case.
posted by yoink at 12:38 PM on February 27, 2012

> Dufi, Dufii would be the plural of Dufius, which is not a thing.

Dufae is the plural of the feminine Dufa, which I'm happy to have be a thing.

I can't seem to find where the intergoogle confirms these assertions, exactly.
posted by mmrtnt at 12:42 PM on February 27, 2012

From the volokh link it sounds like the police only saw him grabbing the sign. But the video claims he was being choked.

Not to point too fine a point on it, but there also seems to be evidence that the victim has been manipulating the recordings he obtained to (among other things) portray the judge as a Muslim and called him a doofus, and that on top of that he may be misrepresenting additional recordings as "evidence" in a way that is not backed up by the actually submitted evidence.
posted by zombieflanders at 12:43 PM on February 27, 2012 [7 favorites]

Also, why is it "Muslim attacks Atheist" and not "Muslim attacks Asshole." His being an atheist is pretty irrelevant to everything here, whereas his being an asshole is very relevant. For that matter, maybe it should just be "Asshole attacks Asshole."

There are so many problems with the reporting here. This is all rage-bait.

It looks like Elbayomy was charged with harassment, not assault, and the judge dismissed the charge of harassment. There's a legal difference here (take a crack at it if you want to be an amateur PA criminal lawyer for the afternoon). It's hard to see what exactly happened without seeing the criminal complaint.

This is really just news of the weird.
posted by jabberjaw at 12:44 PM on February 27, 2012 [8 favorites]

I'm torn. On one hand, if you attack someone, you should be punished. On the other hand, dressing as a zombie requires you be punched in the balls.
posted by Thorzdad at 12:44 PM on February 27, 2012 [2 favorites]

Calling the victim a doofus means that the judge is probably an asshole, but let's not overstate what happened.

Guy gets assaulted and is called a doofus in the public record. Assailant is released presumably to walk the streets fighting evildoers or whatever. Seems fairly lopsided.
posted by KokuRyu at 12:44 PM on February 27, 2012

Guy gets assaulted and is called a doofus in the public record. Assailant is released presumably to walk the streets fighting evildoers or whatever. Seems fairly lopsided.

Guy is allegedly assaulted(or harassed) and is called a doofus. The alleged criminal is released to walk the streets. It only really looks that lopsided if you assume the guy is guilty.
posted by Bulgaroktonos at 12:46 PM on February 27, 2012 [7 favorites]

Guy gets assaulted and is called a doofus in the public record.

"Public record"? The only reason any of these comments are public is because doofus secretly recorded the Judge and released the recording hoping to become the latest FOX NEWS martyr to creeping Sharia law.
posted by yoink at 12:48 PM on February 27, 2012 [6 favorites]

Guy gets assaulted and is called a doofus in the public record. Assailant is released presumably to walk the streets fighting evildoers or whatever. Seems fairly lopsided.

No one charged with assault, now it looks like no one was called a doofus, and the lecture was not part of the public record.
posted by zombieflanders at 12:48 PM on February 27, 2012 [5 favorites]

Guy gets assaulted and is called a doofus in the public record. Assailant is released presumably to walk the streets fighting evildoers or whatever. Seems fairly lopsided.

Except, as far as the court of law is concerned, guy WASN'T assaulted, as the case wasn't made, and he WASN'T called a doofus, just had it explained to him that his ignorant actions -- a costume based solely on an ignorant reading of Mohammed's life -- could make him look like a doofus.

But yeah, sure, other than that....

This story, if it was at all remotely what it appeared on the surface, would be a problem for me. But digging even just an inch deeepr, it's obvious that's not what it is.

And even what we do have remaining that bothers me is pretty questionable. Maybe not enough to completely dismiss it but certainly not something to get worked up over until you've read and done a lot more research. In a post James O'Keefe world, I can't believe any intelligent American would assume that the content provided through a hidden recorder by an involved party with an agenda would be something one should take without a very, very, very large grain of salt.
posted by MCMikeNamara at 12:49 PM on February 27, 2012 [10 favorites]

I can't seem to find where the intergoogle confirms these assertions, exactly.

I'll take my C+ in one year of Latin and fight Google over my knowledge of declensions.
posted by Bulgaroktonos at 12:49 PM on February 27, 2012 [1 favorite]

At no point was anyone beat up or was anyone accused of beating someone up. This sort of hyperbole is not helpful.

What? the video the victim posted clearly says "He's choking me" followed by "he's ripping my beard and sign off". He was clearly accused of assaulting someone. Maybe the guy felt like he was being choked when the guy was trying to pull the beard off.
posted by delmoi at 12:55 PM on February 27, 2012

*doofi? doofies? doofae?

"Doofodes". It's Greek and pluralizes like "octopodes" and "clitorides".
posted by kenko at 12:57 PM on February 27, 2012 [3 favorites]

I hate to post in this thread, but I guess I can always remove it from Recent Activity, and I feel I have to publicly thank yoink (and a few other people who have backed yoink up) for calmly and persistently presenting and explaining the only sensible view of this case against the surging tide of "OMG EVIL JUDGE" nonsense which, frankly, I'm surprised to see represented so strongly here on the blue.
posted by languagehat at 12:58 PM on February 27, 2012 [18 favorites]

Hey, he could still be evil. We just lack the evidence to prove it right now.
posted by It's Raining Florence Henderson at 1:00 PM on February 27, 2012 [1 favorite]

What languagehat said. This is an idiotic non-story that anybody who could be bothered to do a little fact-checking would see.
posted by Gator at 1:03 PM on February 27, 2012 [8 favorites]

He was clearly accused of assaulting someone.

Not in a court of law, he wasn't. Oddly enough, judges don't rule on comments made in YouTube videos.
posted by yoink at 1:04 PM on February 27, 2012 [8 favorites]

What? the video the victim posted clearly says "He's choking me" followed by "he's ripping my beard and sign off". He was clearly accused of assaulting someone. Maybe the guy felt like he was being choked when the guy was trying to pull the beard off.

No, he wasn't accused of assaulting someone. The police report apparently only mentions that the sign was grabbed. And this guy has also claimed that: he was called a doofus, the judge called himself a Muslim, the judge threatened to throw him in jail for releasing what now appears to be tampered recordings, and that he was being choked by the sign itself rather than the beard. Almost all of this appears to be erroneous if not falsified outright.
posted by zombieflanders at 1:06 PM on February 27, 2012 [3 favorites]

Oddly enough, judges don't rule on comments made in YouTube videos.

Shit, that would be awesome!
posted by It's Raining Florence Henderson at 1:07 PM on February 27, 2012 [6 favorites]

what now appears to be tampered recordings

Have you got a good link to this development Zombieflanders?
posted by yoink at 1:10 PM on February 27, 2012 [1 favorite]

On the other hand, dressing as a zombie requires you be punched in the balls.

ZOMBIE HATE CRIME Maaaaaaaaaaan!!!!
posted by stifford at 1:10 PM on February 27, 2012

Shit, that would be awesome!

It's a reality TV goldmine!
posted by yoink at 1:11 PM on February 27, 2012

The response from the judge at Volokh is surprisingly level-headed and reasonable:

When I asked him why he dressed up as “Muhammad zombie,” he told me that it was because he was reflecting the Muslim belief that Muhammad rose from the dead, walked as a zombie, and then went to heaven. That was one of the reasons I tried to spend 6 whole minutes trying to explain and de-mystify Islam through my own knowledge, and in an attempt to prevent an incident like this recurring in my community. Unfortunately, the message was obviously not received in the vein that I had intended. And, in the interest of full disclosure, I did use the word “doofus,” but didn’t call him that directly; I said something akin to “ if you’re going to mock another religion or culture, you should check your facts, first- otherwise, you’ll look like a doofus.”;

In short, I based my decision on the fact that the Commonwealth failed to prove to me beyond a reasonable doubt that the charge was just; I didn’t doubt that an incident occurred, but I was basically presented only with the victim’s version, the defendant’s version, and a very intact Styrofoam sign that the victim was wearing and claimed that the defendant had used to choke him. There so many inconsistencies, that there was no way that I was going to find the defendant guilty.

The judge basically did his job with professionalism and empathy and then had his actions twisted around by zombie muhammad and the monday internet meme machine: a bunch of bored people trying to find something to be angry about
posted by crayz at 1:16 PM on February 27, 2012 [16 favorites]

No, he wasn't accused of assaulting someone. The police report apparently only mentions that the sign was grabbed.

Yes, he was accused of assaulting someone. The victim claims he choked him, which is the definition of 'accuse'? He wasn't charged with assault by the prosecutor, but he was certainly accused of it victim.

Not in a court of law, he wasn't. Oddly enough, judges don't rule on comments made in YouTube videos.

Not sure if you were joking here or not. First, I don't think this was a trial, where evidence is admitted or not. It looks like a pre-trial hearing. What makes you think the victim can provide evidence or testimony during pre-trial hearing? What evidence would a guy dressed like the Pope add? What makes you think a youtube video was even proper evidence here?

If it wasn't a trial, it sure sounded like one. According to the judge:

I based my decision on the fact that the Commonwealth failed to prove to me beyond a reasonable doubt that the charge was just; I didn’t doubt that an incident occurred, but I was basically presented only with the victim’s version, the defendant’s version, and a very intact Styrofoam sign that the victim was wearing and claimed that the defendant had used to choke him. There so many inconsistencies, that there was no way that I was going to find the defendant guilty.

This seems dubious to me, especially in light of the fact that at least one eyewitness was present in the courtroom (the atheist who dressed as the Pope) and there was a Youtube video documenting the incident. It could be that the prosecutor failed to call the "atheist Pope" or introduce the video. It seems more likely to me that the judge is a cowboy with a dangerous conception of the First Amendment, but I'm glad to be proven wrong if there's more information as to what exactly happened in the courtroom.

Yoink, your summation of the rationale behind the First Amendment is pretty much correct. I'm glad you brought up "toleration of mean-spirited stupidity." An important part of that toleration would be making sure that people harassed or assaulted for expressing mean-spirited, stupid opinions receive the same government protections as everyone else.

In this case, a person claimed to have been harassed for expressing a particular opinion about Islam. The judge says he dismissed the claim for lack of evidence. Let's give him the benefit of the doubt and assume good faith here. Now, it seems to me that the last thing any First Amendment respecting judge should do, after dismissing such a claim, would be to harangue the claimant about the content of his speech. That, more than anything else you mentioned above, goes against the "purpose" and the "spirit" of the First Amendment.
posted by BobbyVan at 1:19 PM on February 27, 2012 [1 favorite]

"appears to be tampered recordings"

I googled around but didn't find any reference to tampering. Are you making that up, and if so, why?
posted by Manjusri at 1:20 PM on February 27, 2012

Christian cognitive dissonance vortex imminent. Take shelter.

Please don't. I'm a Christian and love Muslims. We share the same God after all, despite what the fundies say.
posted by low_horrible_immoral at 1:24 PM on February 27, 2012 [2 favorites]

The judge says he dismissed the claim for lack of evidence. Let's give him the benefit of the doubt and assume good faith here.

I certainly think that would be a good idea.

Now, it seems to me that the last thing any First Amendment respecting judge should do, after dismissing such a claim, would be to harangue the claimant about the content of his speech. That, more than anything else you mentioned above, goes against the "purpose" and the "spirit" of the First Amendment.

This is a complete non sequitur. This was not a First Amendment case. One can adore the First Amendment and be a First Amendment absolutist and still hold that it is stupid to say certain things in certain situations. There's hardly a thread on Metafilter that doesn't contain a comment by somebody to the effect that someone else's comment is regrettable and should not have been made. That does not mean that Mefites, in general, hate the First Amendment.

The judge did not make his ruling on the basis of any understanding of the First Amendment whatsoever. His comments to the Islamophobe doofus about not behaving like a doofus also had nothing whatsoever to do with the First Amendment. Telling someone that the "content of their speech" is unwise and offensive has no First Amendment implications whatsoever. I'm not sure why this is so hard to understand.
posted by yoink at 1:27 PM on February 27, 2012 [10 favorites]

Have you got a good link to this development Zombieflanders?

In this Volokh Conspiracy link posted earlier, a message purportedly from the judge says (emphasis mine):

I also supposedly called him and threatened to throw him in jail if he released the tapes he had made in the courtroom without my knowledge/permission (Fact: HE called ME and told me that he was ready to “go public” with the tapes and was wondering what the consequences would be; I advised him again to not disseminate the recording, and that I would consider contempt charges; he then replied that he was “willing to go to jail for (his) 1st amendment rights”- I never even uttered the word “jail” in that conversation).
...
And, in the interest of full disclosure, I did use the word “doofus,” but didn’t call him that directly; I said something akin to “ if you’re going to mock another religion or culture, you should check your facts, first- otherwise, you’ll look like a doofus.”
...
A lesson learned here: there’s a very good reason for Rule 112 of Rules of Criminal Procedure- if someone makes an unauthorized recording in a Court not of Record, there’s no way to control how it might be manipulated later, and then passed off as the truth. We’ve received dozens upon dozens of phone calls, faxes, and e-mails. There are literally hundreds of not-so-nice posts all over the internet on at least 4 sites that have carried this story, mainly because I’ve been painted as a Muslim judge who didn’t recuse himself, and who’s trying to introduce Sharia law into Mechanicsburg.

Yes, he was accused of assaulting someone. The victim claims he choked him, which is the definition of 'accuse'? He wasn't charged with assault by the prosecutor, but he was certainly accused of it victim.

Not sure what the point of posting a link where the first definition of accuse is "to charge," which IIRC is a legal definition. And being accused (assuming your alternate definition) of assault by the victim doesn't make it true, and in this case it seems the evidence agrees.

Which is irrelevant to whether or not the statement "he was not accused of assault" is false. It is.

Or, you know, isn't.

I have no idea what point you're even trying to make with that comment. It's completely unrelated to what I wrote.

You claimed there was an accusation made, and even your own linked definition disagrees. He was refuting that claim directly, oddly enough by using said definition. I can't see how you think that's directly unrelated.
posted by zombieflanders at 1:28 PM on February 27, 2012 [4 favorites]

I'm having a real hard time mustering up any sympathy for the supposed victim here. The dude was a Grade-A asshole, and was being deliberately offensive. Dismissing the case seems the right thing to do.
posted by rocket88 at 1:32 PM on February 27, 2012

I am a pretty hardcore atheist. Primarily because I really dislike bullshit. And there are yards and yards of bullshit from the atheist side on this one.

First thing I noticed upon reading the transcript: the judge never fucking called him a doofus!!!! The HEADLINE on all the outraged blogs is just good old american bullshit. He said that if you're going to criticize/mock something you ought to be informed or you risk looking like a doofus. IE, having your criticism or mockery come from ignorance makes you look ignorant. Duh. We all certainly seem to be in agreement about that when the ignorant make uninformed attacks on science. Why is it somehow magically less true about this moron in the halloween parade?

I HATE bullshit. I hate it from the religious, and I think I hate it even more from atheists. They should have less excuse.
posted by lastobelus at 1:32 PM on February 27, 2012 [9 favorites]

Ugh, gender neutrality fail. Make that "So yoink was refuting" etc.
posted by zombieflanders at 1:32 PM on February 27, 2012

It almost sounds like the makings of a joke: an atheist, a Muslim and the Mechanicsburg Halloween parade.
Almost?

and a very intact Styrofoam sign that the victim was wearing and claimed that the defendant had used to choke him.
You can choke a man with Styrofoam. One time this guy jumped out of the bush and tried to garrote me with a string of packing peanuts.
True story.
It happened when I was in Vietnam.
Worst vacation I ever had. Avoid the Hanoi "Double Sunshine" Resort.

[UPDATE: The judge says he is not a Muslim despite what is heard by most listeners on the tape. That being the case, the criticism of the comments remains.] [UPDATE2: Perce has responded to our blog and denied many of the factual representations made by Judge Martin].
UPDATE: Everything here is a big pile of bullshit but we're going to let the original wording stay up anyway.

This is pretty much what 1/2 ass journalists, or pretty much everyone on t.v or the web now, think of as journalism.
Find an axe. Grind it. Get tons of eyes.
Continue to ignore facts or basic critical thinking in favor of continuing the inflammatory rhetoric to get more eyes.
Ride it until it drops.
Repeat.
posted by Smedleyman at 1:33 PM on February 27, 2012 [6 favorites]

Which is irrelevant to whether or not the statement "he was not accused of assault" is false. It is. I have no idea what point you're even trying to make with that comment. It's completely unrelated to what I wrote.

This thread is about whether or not the judge did something objectionable. What matters, then, is what case and what evidence was brought before the judge and what ruling he made on the basis of that evidence.

Claims of "assault" (common language, not legal definition) made in a YouTube video are pretty much irrelevant to the issue at hand.

I know you seem desperately committed to your "judge says it's o.k. to assault anyone who disses the Prophet!" narrative (God knows why--it's not like you to be so keen to carry water for the Fox Newses of this world) but it's really only fair to assess the judge's actions based on what came before him in the courtroom.
posted by yoink at 1:38 PM on February 27, 2012 [4 favorites]

The judge did not make his ruling on the basis of any understanding of the First Amendment whatsoever. His comments to the Islamophobe doofus about not behaving like a doofus also had nothing whatsoever to do with the First Amendment. Telling someone that the "content of their speech" is unwise and offensive has no First Amendment implications whatsoever. I'm not sure why this is so hard to understand.

Are you kidding? The judge was the first person to bring up the First Amendment! He framed the case in that context! If the transcript is to be believed, he said this to the claimant/victim:

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. 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'll reiterate. This is a judge with a dangerous conception of the First Amendment. For him to say this to someone who claimed to have been attacked, after dismissing said claim, leads me to seriously question what role the content of the claimant's views played in the ultimate verdict. The judge needs to better explain himself, because I think - provisionally - that his understanding of the First Amendment is so warped as to render him incapable of holding his judgeship.
posted by BobbyVan at 1:40 PM on February 27, 2012 [1 favorite]

First thing I noticed upon reading the transcript: the judge never fucking called him a doofus!!!!

The judge claiming that he didn't directly call the dude a 'doofus' is a complete dodge worthy, of the playground.

He said that if you're going to criticize/mock something you ought to be informed or you risk looking like a doofus.

The judge states that uninformed-mouthy-behavior is doofy; judge then proceeds to berate dude for uniformed mouthiness; therefore the judge thinks the dude looks like a doofus. I see how this works... I'm not saying you're an X, but somebody who [does something that fits the description of what you did] is an X. But I didn't call you an X!
posted by amorphatist at 1:43 PM on February 27, 2012 [1 favorite]

* Misplaced comma above. I doof.
posted by amorphatist at 1:45 PM on February 27, 2012

He framed the case in that context!

No he did not. That is a simple untruth. He did not say that the doofus's sign lay beyond the protection of the First Amendment. The First Amendment played no part whatsoever in determining the case, which was determined on the basis of a lack of evidence as regards the specific charge of "harassment."

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. 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 can see nothing in this comment that disagrees with my summary of the 'spirit' of the First Amendment up above. He is saying that while doofus has a right to make stupid hateful comments about Islam, that was not the purpose of the First Amendment--which, clearly, it was not. Saying it is not the purpose of the First Amendment is not saying that the First Amendment does not protect such statements.

You really, really, need to try that "good faith" thing you referred to up above. You're reading this judge's comments entirely through a deliberately tendentious framing that you have received from the hysterical Islamophobic blogosphere.
posted by yoink at 1:47 PM on February 27, 2012 [13 favorites]

You really, really, need to try that "good faith" thing you referred to up above. You're reading this judge's comments entirely through a deliberately tendentious framing that you have received from the hysterical Islamophobic blogosphere.

Physician, heal thyself!

No he did not. That is a simple untruth. He did not say that the doofus's sign lay beyond the protection of the First Amendment.

Talk about tendentious! Sure, he didn't explicitly say that the ZM character's sign was worthy of censorship. All he did was dismiss a case in which someone claimed to have been attacked for expressing an opinion, then pile on the claimant by telling him that his opinion was wrong, then dig up the Founding Fathers to tell the claimant that his "use" of the First Amendment was "unfortunate" and contrary to "what our forefathers intended."

Also, quit ranting about the "hysterical Islamophobic blogosphere." It makes it harder to have a rational discussion when you bring in fraught buzzwords like that.
posted by BobbyVan at 1:56 PM on February 27, 2012

[Judge sez] It’s unfortunate that some people use the First Amendment to deliberately provoke others.

But since the doofus was not using the First Amendment to deliberately provoke others, what exactly was the relevance of the judge's point here? That snippet seems to imply that this case was about First Amendment rights, which other commenters have pointed out to be not the case.
posted by amorphatist at 1:56 PM on February 27, 2012

Please tell me this can be used against the Westboro Baptist Assholes.

Please, make my day complete!
posted by Slackermagee at 2:02 PM on February 27, 2012

No he did not. That is a simple untruth. He did not say that the doofus's sign lay beyond the protection of the First Amendment. The First Amendment played no part whatsoever in determining the case, which was determined on the basis of a lack of evidence as regards the specific charge of "harassment."

On the one hand, this was not a First Amendment case and it was not dismissed on First Amendment grounds.

On the other hand, the judge did specifically say that what the ZM guy did fell "outside [the defendant's] bounds of First Amendment rights" during his otherwise more general speculations on the alleged doofitude of the alleged victim. These remarks came not from the order itself, but from the judge's own irrelevant, off-the-cuff, extemporaneous grandstanding.

Would it be worthwhile for the ZM guy to appeal the order to dismiss? Maybe, although it probably wouldn't be worth it to expose himself to the PA law against making unauthorized recordings of criminal proceedings.

Do these remarks in and of themselves show that the judge made his order in an inappropriate way? Probably not, but anything's possible.

Should we remove this guy from the bench for launching into rants? Nah.
posted by Sticherbeast at 2:08 PM on February 27, 2012

Christ, what a doofus.
posted by Ruthless Bunny at 2:13 PM on February 27, 2012

yoink - you are either the judge in this case or the type of religious zealot that assaulted the guy. You are making tons of assumptions about how and why the judge acted that you simply don't know, unless you are him. The issue is whether the judge threw out a legitimate prosecution for criminal harassment because he sympathized with the defendant's religious zealotry. If this is the case, and the judge's speech seems to lend ample evidence supporting this, this is a highly objectionable action for an American judge to take.
posted by norabarnacl3 at 2:27 PM on February 27, 2012 [1 favorite]

Wow, rampant Islamophobia seems to have prevented a (surprisingly large) number of mefites from reading or understanding even the most basic facts about this case. Also its crippled their understanding of the laws they presume to so vehemently defend. Embarassing, getting caught up in the racist right wing noise machine and spouting off like that.

Good on you, yoink, for injecting some actual facts into this bloated melange of racist, one dimensional nonsense.
posted by smoke at 2:28 PM on February 27, 2012 [10 favorites]

At this point, I don't know if the guy was islamophobic or not. It seems like it at first blush, but there was mention of a Zombie Pope guy marching alongside him. Was the Zombie Pope guy wearing a sign? Was the Zombie Mohammed sign specifically to harass muslims or was this a general "We don't think you're right in following a religion" spiel of antagonistic atheism? Was this an organized anti-religion thing and no one reporting on the scene could recognize Zombie Buddha or Zombie Odin?

The Judge... ought not to have lectured the Zombie Mohammed guy after the proceedings were through. That was just jet fuel for the fire.
posted by Slackermagee at 2:37 PM on February 27, 2012

I'll reiterate. This is a judge with a dangerous conception of the First Amendment. For him to say this to someone who claimed to have been attacked, after dismissing said claim, leads me to seriously question what role the content of the claimant's views played in the ultimate verdict. The judge needs to better explain himself, because I think - provisionally - that his understanding of the First Amendment is so warped as to render him incapable of holding his judgeship.

Have you considered his remarks in the light of Chaplinsky v. New Hampshire?

From the opinion:

There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or "fighting" words those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.

Now, it is not OK to assault someone who expresses an opinion you find offensive; but there is insufficient evidence here to show that that occurred. Nor is it OK to harrass someone (the specific charge in this case, which requires physical contact with intent to cause harrassment, annoyance, or alarm). I don't know why the prosecutor didn't introduce the YouTube video, but my guess is that the reason is its lack of probative value. All we have from that video is some voices - no imagery of the defendant, nothing to corroborate the complainant's allegations. The prosecution here failed to meet it's burden of proof.

However, while the guilt or innocence of the defendant is open to debate, the lack of protection from the first amendment to the complainant is not - I would say he was indeed 'way outside the bounds of first amendment rights.' To go on about the 'dangerous conception...warped view...[making him] incapable of holding his judgeship' just comes off as ignorant posturing, given the ~70-year pedigree of this very famous first amendment case. Although 1A protection has been extended to controversial statements ranging to flag-burning to wearing a jacket emblazoned with the words 'fuck the draft', in both cases the protection there concerned Protection from government itself - via a statute and an arrest and conviction for disturbing the peace, respectively.

Incidentally, on the complainant's youtube video he transcribes the judge's remarks as including 'I'm a Muslim.' I didn't notice this until after I had heard the judge say 'I'm not Muslim' (~32:30) and switched back to the video tab to check (since I wondered how the rumor of the judge being Muslim got into the story in the first place). Obviously I don't have access to the original high-quality audio of the court proceedings, but I do have almost a decade's experience in recording, editing, and transcribing sound for film & video and feel comfortable declaring myself to be expert in that sphere. Considering the accuracy of the transcription in other places where the audio is of poorer quality - eg the judge looking down at his notes when opining that the complainant had misunderstood some things in the Koran - the transcription of 'I'm not Muslim' into 'I'm a Muslim' seems completely dishonest.
posted by anigbrowl at 2:37 PM on February 27, 2012 [6 favorites]

I don't think using words like "Islamophobia" play well here on the blue... that's like calling someone racist because they are arguing against affirmative action. I doubt anyone in this conversation is an islamophobe, just like I doubt anyone in this conversation is a racist.

However, yoink seems to be analyzing this case from a coldly rational viewpoint, like a lawyer, a judge, or Data from ST:TNG would. I agree with yoink's analysis, even as I agree with the concepts put forward by BobbyVan.

Obviously we all really really like the First Amendment.

Some of us think that Islam gets a (slightly more) free pass because it is currently a controversial social topic.

Some of us also think that Islam gets the short end of the stick because of racism.

For everyone else, there's legal analysis ©
posted by special agent conrad uno at 2:39 PM on February 27, 2012 [1 favorite]

If in fact, anyone made a surreptitious video that included audio, that is a violation of Pennsylvania's wiretap laws. And the judge also has the power to hold whoever made it in contempt of court.

And while the case was apparently decided on other grounds, one might make the argument (legal types weigh in) that Zombi Mohammed's sign was not protected due to the concept of "fighting words." It is my understanding that speech designed or likely to incite a physical altercation is not protected under the First Amendment. Or what anigbrowl said
posted by tommyD at 2:40 PM on February 27, 2012

I don't think it's "racist" to point out that this judge seems to have intended to punish the plaintiff for his opinions, if only via lecture. I don't think the defendant necessarily needed to be found guilty of harassment, but IMHO there's no question that judges need to refrain from these kinds of well it's legal but you're getting a lecture because the forefathers and I never meant to protect you statements, on the record or otherwise.

tl;dr: when you make up nonsense about the "intent" of the First Amendment you should check your facts first -- otherwise it makes you look like a doofus.
posted by vorfeed at 2:41 PM on February 27, 2012 [1 favorite]

The prosecution here failed to meet it's burden of proof.

I meant, of course, to say that 'the prosecution here failed to meet it is burden of proof.' Oh yes I did.
posted by anigbrowl at 2:44 PM on February 27, 2012 [2 favorites]

Have you considered his remarks in the light of Chaplinsky v. New Hampshire?

The "fighting words" doctrine has been narrowed down significantly since the Chaplinksy decision. The Zombie Muhammed nonsense emphatically lacks the personal element which is required for the "fighting words" exception to stick.

It is my understanding that speech designed or likely to incite a physical altercation is not protected under the First Amendment.

Sorry, but your understanding is incorrect. Merely offensive speech, let alone merely offensive speech which is "likely" to incite violence, is protected. Not even the Westboro Baptist Church protesting a funeral qualifies for the fighting words exception, mostly because it is not personal enough.
posted by Sticherbeast at 2:45 PM on February 27, 2012 [4 favorites]

Have you considered his remarks in the light of Chaplinsky v. New Hampshire?

Yes. The Chaplinsky case involved a personal insult. As recounted by SCOTUS, one person shouted "fighting words" to another person.

The complaint charged that appellant,

"with force and arms, in a certain public place in said city of Rochester, to-wit, on the public sidewalk on the easterly side of Wakefield Street, near unto the entrance of the City Hall, did unlawfully repeat the words following, addressed to the complainant, that is to say, 'You are a God damned racketeer' and 'a damned Fascist and the whole government of Rochester are Fascists or agents of Fascists,' the same being offensive, derisive and annoying words and names."

In this case, a person dressed as Zombie Muhammad made up a sign that said "Only Muhammad Can Rape America" and walked down the street, then claimed to have been attacked. I see no comparison here.

On preview, stitcherbeast has it.
posted by BobbyVan at 2:47 PM on February 27, 2012

"The judge claiming that he didn't directly call the dude a 'doofus' is a complete dodge worthy, of the playground."

I read the transcript. It's not a dodge. He did not call the defendant a doofus. He said that when you mock/criticize something you ought to be informed in your mockery or criticism or you risk looking like a doofus.

That is what he said. I am a native english speaker with considerably above average reading comprehension, and I read the transcript, and that is what he said.

As far as his supposed treading on the sacred holy first amendment, why don't you people go build a culture where it's not true that one out of three black males born in your country will spend part of their life imprisoned and then come back and blather on about how your special holy first amendment makes you the bestest democracy. Until then pardon me if I discount all the *gasp* he said we shouldn't use the first amendment to be doofuses as fucking bullshit.
posted by lastobelus at 2:47 PM on February 27, 2012 [7 favorites]

Wow, rampant Islamophobia seems to have prevented a (surprisingly large) number of mefites from reading or understanding even the most basic facts about this case.

Actually, this thread illustrates something new and interesting -- Islamophobia-phobia: the irrational fear that Islamophobes may, like stopped clocks, happen to be correct about a single, particularly egregious case of judicial bumbling or overreach.
posted by BobbyVan at 2:54 PM on February 27, 2012 [3 favorites]

yoink - you are either the judge in this case or the type of religious zealot that assaulted the guy. You are making tons of assumptions about how and why the judge acted that you simply don't know, unless you are him.

Not true. The judge has provided relatively extensive remarks that go over how and why he acted.

The issue is whether the judge threw out a legitimate prosecution for criminal harassment because he sympathized with the defendant's religious zealotry. If this is the case, and the judge's speech seems to lend ample evidence supporting this, this is a highly objectionable action for an American judge to take.

What "ample evidence?" There is zero evidence of this whatsoever, and at least some evidence to the contrary. Again, from the judge himself (emphasis mine):

He said that I kept a copy of the Quran on the bench (fact: I keep a Bible on the bench, but out of respect to people with faiths other than Christianity, I DO have a Quran on the bookcase BESIDE my bench, and am trying to acquire a Torah, Book of Mormon, Book of Confucius and any other artifacts which those with a faith might respect).

He claims that I’m biased towards Islam, apparently because he thinks I’m Muslim. 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. During my first tour in Iraq, I was ambushed once, attacked by a mob once, sniped at once, and rocketed, bombed, and mortared so many times that I honestly don’t know how many time I’ve been attacked. Presumably by Muslim insurgents. My point: if anyone SHOULD be biased towards Muslims, one would think it would be me. I’m not, however, because I personally know or have met many good, decent people who follow Islam, and I shouldn’t characterize the actions of those who tried to kill me as characterizations of all Muslims.

When I asked him why he dressed up as “Muhammad zombie,” he told me that it was because he was reflecting the Muslim belief that Muhammad rose from the dead, walked as a zombie, and then went to heaven. That was one of the reasons I tried to spend 6 whole minutes trying to explain and de-mystify Islam through my own knowledge, and in an attempt to prevent an incident like this recurring in my community. Unfortunately, the message was obviously not received in the vein that I had intended.

I can't see how you get "sympathizing with...religious zealotry" from what is, to be quite honest, a pretty progressive respect for all faiths despite having been shot at by some of them. In fact, it seems to me the accuser is the zealot here, by essentially being the atheist version of Fred Phelps. As a vocal and proud atheist myself, this guy comes off as how I imagine my liberal religious friends and family view the WBC or ultra-Orthodox Jews or Muslim extremists.
posted by zombieflanders at 3:00 PM on February 27, 2012 [11 favorites]

Man dressed up as zombie Mohammed, wearing sign and shouting - stupid, but permitted under First Amendment rights in this country.

Talaag Elbayomy attacking zombie Mohammed - Understandably offended but still legally accountable for attacking the other manIF it can be proven he did so.

Judge Martin - Perfectly within rights to tell someone why he thinks that person acted like "a doofus" as long as he doesn't rule on the case based on anything other than the law.

It's obvious to me that zombie Mohammed guy was looking to stir up some people, and acting like an asshole with the shouting and the sign waving, but he has the right to do that (see Sasha Baron Cohen being an asshole on the red carpet, for example).

I also think Elbayomy rose to the bait, and went after zombie Mohammed guy. And it certainly seems like the policeman who arrested Elbayomy must have been under that impression.

But since the video is absolute crap (you can't see ANYTHING), and Elbayomy now only admits to taking the sign off of the guy, I don't see how Judge Martin could rule against Elbayomy unless removing the sign in itself is enough to constitute "criminal harassment."

I just wish I could have access to the police report the officer filed.
posted by misha at 3:11 PM on February 27, 2012 [1 favorite]

special agent conrad uno: yoink seems to be analyzing this case from a coldly rational viewpoint

yoink: doofus secretly recorded the Judge and released the recording hoping to become the latest FOX NEWS martyr to creeping Sharia law.

I appreciate yoink's position on this, in a devil's advocate way, because this is the kind of thing that outrages me and tends to make me not consider all sides and elements of an issue. I'm not seeing a dispassionate take on it, however.

Listening to the actual recording, I didn't notice any remarks from Judge Mark Martin to the defendant, just lecturing to the victim before he dismisses the case, and I think that's where a lot of the legitimate outrage is coming from.

That was one of the reasons I tried to spend 6 whole minutes trying to explain and de-mystify Islam through my own knowledge, and in an attempt to prevent an incident like this recurring in my community.

This comes across as if the onus for avoiding the alteraction lies on Ernie Perce instead of Talaag Elbayomy. I can't agree. The person who needs a lecture is the person who went and laid hands on someone else.
posted by dragoon at 3:17 PM on February 27, 2012 [1 favorite]

I'll reiterate. This is a judge with a dangerous conception of the First Amendment

I really don't feel like this:

"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."

is in any way a dangerous understanding of the First Amendment. He's basically saying "the First Amendment doesn't mean you should run around being an asshole. You can, but that probably wasn't the idea." Amendment or no, that's good advice.
posted by Hoopo at 3:20 PM on February 27, 2012 [8 favorites]

It's not a dodge. He did not call the defendant a doofus. He said that when you mock/criticize something you ought to be informed in your mockery or criticism or you risk looking like a doofus.

When someone is trying to make up excuses for someone's bad behavior, they ought to avoid using the most narrow weasel-worded interpretations of language possible while deliberately ignoring the most obviously intentionally communicated interpretations of simple sentences. Otherwise they would risk looking like a literal-minded fool incapable of deciphering even the most simple subtext.

Notice, I didn't call you a fool here. Yet, in the hypothetical case that we all admitted that it's possible to call someone names clearly-yet-indirectly, I would still feel compelled to apologize for some reason...
posted by roystgnr at 3:21 PM on February 27, 2012 [1 favorite]

The "fighting words" doctrine has been narrowed down significantly since the Chaplinksy decision. The Zombie Muhammed nonsense emphatically lacks the personal element which is required for the "fighting words" exception to stick.

As far as the government's power to curtail such speech goes, yes. However, the defendant in this case is not the government, but an individual who took personal offense at the complainant's mockery of his religion and felt it as an immediate injury to his Islamic identity. If this were to end up in civil litigation (which I half-hope it does, because the questions it raises are so interesting fom legal point of view), I think the case would turn on the degree to which the ZM nonsense was calculated to offend, and the foreseeability of it doing so. Note as well that the narrowing effect of Street and Cohen were applied to cases of speech rather than conduct; I also think a relevant distinction can be drawn between the two in this case, given that the complainant's claimed knowledge of Islam creates a colorable inference that he was aware of that religion's prohibition on depictions or personifications of its founder.

Sorry, but your understanding is incorrect. Merely offensive speech, let alone merely offensive speech which is "likely" to incite violence, is protected. Not even the Westboro Baptist Church protesting a funeral qualifies for the fighting words exception, mostly because it is not personal enough.

Not so. As well as the protection being from government interference rather than personal opposition, in the WBC case the Court held that the existing provisions for controlling speech (the requirement to picket within a designated area at a minimum distance from the funeral proceedings) were adequate to protect the complainant from harm. Offensive as WBC's protest was, it was too far removed from the memorial service to present any colorable threat or intimidation to the mourners that would undermine the 1A's grant of protection.

Likewise, we can debate the Zombie Muhammad thing here (including assertions that it might be a reasonable characterization) without worrying about disturbing the peace of sincere Muslims - who can, if they feel offended by such ideas, stop reading the MetaFilter page or alternatively make a comment expressing their feelings of offense. The situation is different when one is speaking or acting as 'zombie Muhammed' in person, for 3 reasons: first, physical proximity is far more likely to provoke than mere literary utterance; second, the viewers of a parade may be, to some extent, a captive audience, insofar as it's not always easy to exit a crowd; third, where a member of a crowd is in a distinct minority and the conduct or speech of another expresses contempt and disregard for that minority, by proxy or not, the member in question may feel disproportionately threatened by such conduct or speech. Bear in mind that Tareeq, the defendant in this case, was an immigrant and thus somewhat visually identifiable as such to others in the crowd; and bear in mind further that he was there with one of his children. An inflammation of anti-Islamic sentiment in this context not only caused personal offense to the defendant, but arguably evoked fears for his own safety and that of his offspring.

Obviously, I'm developing my own theory here, rather than building up an authoritative argument, which would take some hours.
posted by anigbrowl at 3:25 PM on February 27, 2012 [1 favorite]

And yet, roystgnr didn't actually call anyone a fool.

Seriously, that argument seems to be "Never use an insulting word, because people will misinterpret you and claim that you are actually insulting them."

Putting that aside, does anyone contend that Perce didn't look like a doofus? In fact, I have called him worse in this thread (frankly I imagine him to be the worst kind of sanctimonius, close-minded asshole, due to his use of the word 'rape' to describe something that can't actually be rape).

This comes across as if the onus for avoiding the alteraction lies on Ernie Perce instead of Talaag Elbayomy. I can't agree. The person who needs a lecture is the person who went and laid hands on someone else.

Oh, there's no doubt the judge, in his remarks, engaged in some victim blaming. I don't think anyone is really arguing that's not true. But that later victim blaming doesn't seem to have anything to do with the rest of the case.

Perce seems to contend that such victim blaming against him means that the judge was biased against atheists. It seems more likely to me that the judge is biased against assholes.
posted by muddgirl at 3:30 PM on February 27, 2012 [4 favorites]

That is what he said. I am a native english speaker with considerably above average reading comprehension, and I read the transcript, and that is what he said.

I was only partially convinced by the first "that is what he said", but the second one sold me. Especially coming from a native english speaker, with considerably above average reading comprehension, who does indeed read the transcripts. A rare specimen on the blue these days.

As far as his supposed treading on the sacred holy first amendment, why don't you people go build a culture where it's not true that one out of three black males born in your country will spend part of their life imprisoned and then come back and blather on about how your special holy first amendment makes you the bestest democracy. Until then pardon me if I discount all the *gasp* he said we shouldn't use the first amendment to be doofuses as fucking bullshit.
posted by lastobelus at 2:47 PM on February 27

Yes. I was about to make the same essential point, but you beat me to it.
posted by amorphatist at 3:54 PM on February 27, 2012

Oh, there's no doubt the judge, in his remarks, engaged in some victim blaming. I don't think anyone is really arguing that's not true

I mean, sort of? Insofar as "victim" doesn't necessarily mean "innocent victim who does not warrant any criticism of zero legal consequence for the behavior that provoked the terrible sign-grabbening", sure. Like in the sense where the WBC enjoys the protection of the law to not get punched in the mouth and could take someone who punched them in the mouth to court and even win but could still rightly be called out by a judge as deliberately provocative assholes despite this fact not being directly relevant to the ruling, sure. It's possible for Perce to be the victim of a sign-grabbing and to also be someone who would do well to be told he was acting like an asshole. Even if the case gets dismissed for unrelated reasons.
posted by Hoopo at 3:54 PM on February 27, 2012 [2 favorites]

Seriously, that argument seems to be "Never use an insulting word, because people will misinterpret you and claim that you are actually insulting them."

Sadly, this is probably a good idea nowadays. Is there a pithy word or phrase that describes "assuming the worst possible interpretation of an opponent's words and running with it as the gospel truth"?

My personal favorite example is the student who went on a media campaign claiming that her social sciences professor, who happened to be Jewish, was anti-semetic for saying the phrase "All Jews should be sterilized" when he brought it up as an example of an unacceptable and dangerous opinion during class.

But that later victim blaming doesn't seem to have anything to do with the rest of the case.

I have my suspicions that whatever the source of the victim blaming was, it was a big part of the judge's decision to throw his hands up and say "Well, it's a he said/he said case, I'm going to dismiss it." As opposed to looking at the testimony, determining which person was telling the truth, and whether it rose to the level of the crime mentioned, which is his job.

If he left out the victim blaming, I wouldn't have those suspicions.

Perce seems to contend that such victim blaming against him means that the judge was biased against atheists. It seems more likely to me that the judge is biased against assholes.

One would hope the judge would be biased against those who broke the law. Asshole bias still brings up the issue of who the bigger asshole was, and I again can't agree with anyone who thinks it was Perce in the specific incident in front of the court.

I don't see any evidence it was a distaste for atheism that guided Martin, but it is interesting that atheists are distrusted more than Muslims in American society.
posted by dragoon at 3:58 PM on February 27, 2012 [2 favorites]

An inflammation of anti-Islamic sentiment in this context not only caused personal offense to the defendant, but arguably evoked fears for his own safety and that of his offspring.

Obviously, I'm developing my own theory here, rather than building up an authoritative argument, which would take some hours.

Does it hurt, physically, to put yourself through such contortions to excuse Mr. Elbayomy for physically harassing a man in costume - yes, dressed as Zombie Muhammad - in a Halloween parade?

At least you admit that your argument is under development. Just keep in mind that a convincing argument shouldn't be so hard to conjure.
posted by BobbyVan at 4:00 PM on February 27, 2012 [3 favorites]

anigbrowl, this guy was not inciting the crowd to violence (as in "kill the Muslims") and he was not threatening anyone, directly or otherwise -- he was simply making a general statement against Islam. One guy in a costume-parade with one sign against Islam which no one else in the crowd seems to have cared about is not a credible threat to anyone's safety, and does not excuse a physical altercation.

It is ridiculous to claim that dressing up as Muhammed and walking in a Halloween parade somehow constitutes civil liability, much less because someone else chose to try to tear your costume off. Doing things which are "calculated to offend" does not give people carte blanche to commit crimes against you, nor make you liable if they do.
posted by vorfeed at 4:05 PM on February 27, 2012 [3 favorites]

I have my suspicions that whatever the source of the victim blaming was, it was a big part of the judge's decision...

There's a lot of suspicions mentioned in this thread, and I would submit that suspicions are not really an adequate substitute for knowledge of this case in particular, what happened in the court, and general knowledge of legal procedure and laws.

When using the latter criteria rather than the former, this situation seems unremarkable in every aspect, which leads me to feel the presence of Islam and the stilted efforts of the zombie in question have more to do with the outrage than anything else.

Additionally, people complaining about a judge lecturing defendants or plaintiffs have quite obviously spent very little time in a court room - it is incredibly common behaviour and well within expected norms whether you agree with them or not.
posted by smoke at 4:11 PM on February 27, 2012 [5 favorites]

I wonder how many people would be upset if, instead of dressing up as Zombie Muhammad, the victim had been flying a Nazi flag, or wearing a KKK outfit.
posted by smoothvirus at 4:16 PM on February 27, 2012 [1 favorite]

I wonder how many people would be upset if, instead of dressing up as Zombie Muhammad, the victim had been flying a Nazi flag, or wearing a KKK outfit.

I'm fairly sure I saw all of the above last Halloween. And a Bin Laden, and Lucifer himself, and a sexy she-demon, and pixies. I don't remember any physical altercations. Well, not of the unpleasant variety.
posted by amorphatist at 4:21 PM on February 27, 2012

I wonder how many people would be upset if, instead of dressing up as Zombie Muhammad, the victim had been flying a Nazi flag, or wearing a KKK outfit.

Are you seriously equating Islam with actual hate groups?
posted by zombieflanders at 4:22 PM on February 27, 2012

Doing things which are "calculated to offend" does not give people carte blanche to commit crimes against you, nor make you liable if they do.

No but I would have no issue with it being a mitigating factor in some cases, and given that the extent of the allegations appear to be harassment related to grabbing a sign with an inflammatory slogan on it I'm really not sure what result we're looking for here for the sign-grabber.
posted by Hoopo at 4:27 PM on February 27, 2012 [1 favorite]

Bear in mind that Tareeq, the defendant in this case, was an immigrant and thus somewhat visually identifiable

Please note that I may have misspelt the name, and omitted to say 'an immigrant from the Middle East or South Asia, and thus somewhat visually identifiable...' I'm guessing that from his accent and the defense counsels's remarks at trial; chances are he also has black hair, brown skin, and a somewhat Asiatic appearance. I'm sure MeFites can appreciate the difference between knowing where someone is from and the idea that a person may 'look foreign' and experience discrimination as a result.

As regards the applicability of the 'fighting words' doctrine in Chaplinsky, I think it is best summed up here by the Court's reference to the New Hampshire Court's remarks in State v. McConnell (I think - not checking LN right now; also, emphasis added):

It was further said: "The word `offensive' is not to be defined in terms of what a particular addressee thinks. . . . The test is what men of common intelligence would understand would be words likely to cause an average addressee to fight. . . . The English language has a number of words and expressions which by general consent are `fighting words' when said without a disarming smile. . . . Such words, as ordinary men know, are likely to cause a fight. So are threatening, profane or obscene revilings. Derisive and annoying words can be taken as coming within the purview of the statute as heretofore interpreted only when they have this characteristic of plainly tending to excite the addressee to a breach of the peace.. . . The statute, as construed, does no more than prohibit the face-to-face words plainly likely to cause a breach of the peace by the addressee, words whose speaking constitutes a breach of the peace by the speaker — including `classical fighting words', words in current use less `classical' but equally likely to cause violence, and other disorderly words, including profanity, obscenity and threats."

My point here is that where the offensive quality of speech is highly foreseeable, it's disingenuous to overlook the possibility of it being provocative. Like others in this thread, I'm an atheist; not only do I not believe in any religion, I find coercive or institutionalized forms of religion deplorable. Put bluntly, Islam as practiced in many countries is an unpleasant-religion that glorifies theocracy, martyrdom, and violence. While being entirely aware of the cultural and historical contexts, I have no time for crowds chanting 'death to America' at Friday prayers in Tehran, suicide bombers in Kabul setting bombs in response to negligent but not malicious destruction of Korans, mobs in Pakistan lynching people for blasphemy, or individuals being extradited to Saudi Arabia and possibly facing the death penalty for expressing skepticism about holiness of Muhammad. Sectarian fundamentalism is a Bad Thing, and is too well tolerated within Islam for my tastes. This deters me considerably from wanting to visit or even culturally appreciate many countries where Islam is the majority religion.

On the other hand, I'm aware that about 1/3 of the world's people are Islamic and that excess makes the news far better than moderation and good behavior. I have and have had lots of friends who are Muslim, both by birth and conversion, and whose religious beliefs and practice are wholly accommodating of others. The probability of someone being Islamic and of that person being an aggressive fundamentalist are poorly correlated, in my personal experience (as with other religions). It seems to me that the linkage being suggested here by the original protagonist who dressed up as Zombie Muhammad, and by a good many other people who have latched onto the story, is that 'offended Muslim => fundamentalist Muslim', and that people's entirely legitimate worries about fundamentalist Muslims thus justify the offending of Muslims as a sort of passive shibboleth test designed to flush them out of our midst.

The reason I have so little sympathy for the invocation of the first amendment (at the time of the incident, under color of 'this is America, dude...we have freedom of speech') is that the 1A also protects the free exercise of religion; and the defendant's assertion that such mockery is offensive to him as a Muslim falls within that. I do not give the defendant a pass for any physical interference he may have engaged in such as trying to take the sign away from around the complainant's neck; but I can't decide from the audio if that is truly what happened, and I'm struck by the fact that the defendant's prior remark that he was prepared to call the police as evidence that he found the complainant's behavior hostile in character, and needlessly disturbing of the peace.

As I'm fond of saying, the first amendment protects a right to freedom of speech; it doesn't guarantee anyone a platform or immunity from disagreement. Insofar as his they remained verbal, the defendant's objections to the Zombie Muhammad behavior were also examples of free speech.
posted by anigbrowl at 4:39 PM on February 27, 2012 [1 favorite]

is that the 1A also protects the free exercise of religion; and the defendant's assertion that such mockery is offensive to him as a Muslim falls within that.

You just made that up. How does his taking offense prevent him from exercising his religion freely? There is no legal protection against ridicule of one's professed belief system. Not for muslims, not for astrologers, not for scientologists, not for pastafarians.
posted by amorphatist at 4:47 PM on February 27, 2012

The reason I have so little sympathy for the invocation of the first amendment (at the time of the incident, under color of 'this is America, dude...we have freedom of speech') is that the 1A also protects the free exercise of religion; and the defendant's assertion that such mockery is offensive to him as a Muslim falls within that.

Wait, what? You're suggesting that dressing up as Mohammed in a Halloween parade could conceivably interfere with a Muslim onlooker's free exercise of religion? That's... novel.
posted by BobbyVan at 4:48 PM on February 27, 2012

BobbyVan, quit your argument-theivin' ways right this minute!
posted by amorphatist at 4:49 PM on February 27, 2012 [1 favorite]

BTW, I doubt there'll ever be a more "Tags" thingy more pleasing to my mindbrain than that of this post.
posted by amorphatist at 4:53 PM on February 27, 2012

Additionally, people complaining about a judge lecturing defendants or plaintiffs have quite obviously spent very little time in a court room - it is incredibly common behaviour and well within expected norms whether you agree with them or not.

Except the victim wasn't a defendant or a plaintiff; It was a criminal case (parties of the case were the Commonwealth of PA vs. defendant). The judge went and got all preachy to a victim/witness--very bad form indeed. It can be appropriate for the judge to comment on the credibility of witness when making a decision, but in no way should the judge start lecturing a non-party witness (except perhaps for court room or testimonial issues).

The ~~judge~~magistrate exibited extraordinarily poor temperament here.
posted by Consult The Oracle at 4:55 PM on February 27, 2012 [1 favorite]

Doing things which are "calculated to offend" does not give people carte blanche to commit crimes against you, nor make you liable if they do.

No but I would have no issue with it being a mitigating factor in some cases

Right. I cannot wait for some kid's "offensive" t-shirt to be a "mitigating factor" in whether someone he never even spoke to should be allowed to come up and tear it off him. Do we all get to tear anti-gay shirts off of fundamentalists, too, or does "offensive" only work one way? Is there some list of clothing which is inherently rip-worthy, or is it just open season on things you don't like other people wearing?

and given that the extent of the allegations appear to be harassment related to grabbing a sign with an inflammatory slogan on it I'm really not sure what result we're looking for here for the sign-grabber.

I would have liked to see him prosecuted for harassment, if it can be proved that he did attack someone. Failing that, I would have liked to see him get a lecture along with or instead of the victim (or, alternately, for the case to be dismissed for lack of evidence, without any lecture at all). Instead, the sign-grabber was essentially given a pat on the back for attacking someone... and yes, that's what this was. It could very easily have turned into a fight, if not for the victim's good judgement, and it's sad to see that same good judgement thrown in his face by an officer of the law.

Next time he may as well throw a punch and make it count -- why not, if "mitigating circumstances" already make him responsible for having been attacked? The victim-blaming here is disgusting, and shifting it to "asshole blaming" even more so. The law does not allow people to attack "assholes".
posted by vorfeed at 4:59 PM on February 27, 2012 [3 favorites]

Are you seriously equating Islam with actual hate groups?

I think you are seriously misreading the statement. He's saying that the level of offense that Elbayomy experienced when seeing a zombie Muhammed with an offensive sign is similar to the offense experienced by the average American when seeing someone flying a Nazi flag or wearing a KKK outfit.

The magistrate exibited extraordinarily poor temperament here.

Yes. That's what I was trying to get at when I talked about "suspicions". Ideally, even if I dislike or disagree with a judicial decision, I should be able to say, "This is why the judge made their ruling, because they felt the law said this or this evidence was persuasive." A poor judicial decision makes me think there was something unsaid, a secret motive or reason.
posted by dragoon at 5:04 PM on February 27, 2012 [2 favorites]

vorfeed, are you familiar with the idea of mitigating circumstances? There is nothing disgusting about it. And I'm very clearly and specifically not saying there should never be consequences for someone who assaults someone by punching or ripping their shirt off or whatever the hell you're on about right now. You're being silly.
posted by Hoopo at 5:09 PM on February 27, 2012

Does it hurt, physically, to put yourself through such contortions to excuse Mr. Elbayomy for physically harassing a man in costume - yes, dressed as Zombie Muhammad - in a Halloween parade?

No, because I'm not doing that. I am not supporting a right to physical harrassment here, although I am unconvinced that any actually took place. After watching Perce's video several times, I can hear him saying that he is being attacked but am unable to tell whether or not this is actually the case. I am not willing to take his (textual) claims at face value.

anigbrowl, this guy was not inciting the crowd to violence (as in "kill the Muslims") and he was not threatening anyone, directly or otherwise -- he was simply making a general statement against Islam.

It certainly sounds anodyne when put that way, but it's not hard to conjure up situations where 'general statements' can create an atmosphere of intimidation. I would say that if you've never been in a temporary local minority where you experienced immediate physical anxiety then you are quite fortunate, since it is a distressing position to be in. This is why I began by differentiating the context of physical proximity from other contexts.

It is ridiculous to claim that dressing up as Muhammed and walking in a Halloween parade somehow constitutes civil liability, much less because someone else chose to try to tear your costume off. Doing things which are "calculated to offend" does not give people carte blanche to commit crimes against you, nor make you liable if they do.

I haven't claimed that it does. The civil liability I was thinking of stems from the possibility that Perce could attempt to sue Elbayomy for battery.
posted by anigbrowl at 5:12 PM on February 27, 2012 [1 favorite]

Anigbrowl, you're all over the map. Earlier, you put forth the outlandish position that the Zombie Mohammed costume "arguably evoked fears for [the defendant's] own safety and that of his offspring," suggesting that attacking the parade marcher was akin to an act of self-defense.

When I pointed out the absurdity of that argument, you now say that you're merely "unconvinced that any [physical harassment] actually took place."

You're perfectly free to choose to argue your case on the law or on the facts, but don't shift from one to the other and pretend like no one will notice.
posted by BobbyVan at 5:23 PM on February 27, 2012 [1 favorite]

Ideally, even if I dislike or disagree with a judicial decision, I should be able to say, "This is why the judge made their ruling, because they felt the law said this or this evidence was persuasive." A poor judicial decision makes me think there was something unsaid, a secret motive or reason.

But really, why should your opinion about any case or ruling matter at all? Why should you be able to say anything about it, given that for the vast majority of judicial matters you - or anyone - sees barely any part of the court proceedings etc and have no or next-to-no legal knowledge with which to form or hold your opinions? In this context how are you even able to form an judgment of what makes a "poor" judicial decision?

I mean, don't get me wrong, of course you have a right to hold an opinion about anything you like, but the courts are under no obligation facilitate your opinion of them one way or the other. The deal with laws and the people effected by them, not with wooing the court of public opinion.

Further, I don't see how - even with the limited knowledge we posses - you could feel that this represents a poor judicial decision. The decision is that there was not enough evidence to make a judgment; whether the judge thinks the zombie is a dick is wholly incidental to this fundamental basis to the decision.
posted by smoke at 5:28 PM on February 27, 2012 [3 favorites]

But really, why should your opinion about any case or ruling matter at all? Why should you be able to say anything about it, given that for the vast majority of judicial matters you - or anyone - sees barely any part of the court proceedings etc and have no or next-to-no legal knowledge with which to form or hold your opinions? In this context how are you even able to form an judgment of what makes a "poor" judicial decision?

I mean, don't get me wrong, of course you have a right to hold an opinion about anything you like, but the courts are under no obligation facilitate your opinion of them one way or the other. The deal with laws and the people effected by them, not with wooing the court of public opinion.

Please don't take offense, but are you from fucking North Korea?
posted by BobbyVan at 5:32 PM on February 27, 2012 [2 favorites]

yoink - you are either the judge in this case or the type of religious zealot that assaulted the guy. You are making tons of assumptions about how and why the judge acted that you simply don't know, unless you are him. The issue is whether the judge threw out a legitimate prosecution for criminal harassment because he sympathized with the defendant's religious zealotry. If this is the case, and the judge's speech seems to lend ample evidence supporting this, this is a highly objectionable action for an American judge to take.

I'm an atheist. I've been an atheist my entire life. And no, I'm not that judge or any other judge.

Tell me more about how not to make "tons of assumptions."
posted by yoink at 5:32 PM on February 27, 2012 [4 favorites]

You just made that up. How does his taking offense prevent him from exercising his religion freely? There is no legal protection against ridicule of one's professed belief system. Not for muslims, not for astrologers, not for scientologists, not for pastafarians.

Wait, what? You're suggesting that dressing up as Mohammed in a Halloween parade could conceivably interfere with a Muslim onlooker's free exercise of religion? That's... novel.

No, guys. I am saying that a Muslim walking up to a guy dressed as Zombie Muhammad and remonstrating with him constitutes the free exercise of religion. As I've said repeatedly, it does not justify physically harassing or attacking the costumed person, if that is what happened. But getting in the costumed marcher's face and telling him verbally that his mockery is offensive and intolerable? That is absolutely an exercise of free speech.

Anigbrowl, you're all over the map. Earlier, you put forth the outlandish position that the Zombie Mohammed costume "arguably evoked fears for [the defendant's] own safety and that of his offspring," suggesting that attacking the parade marcher was akin to an act of self-defense.

I have never said that attacking someone physically was justified; on the contrary, I have repeatedly excluded such behavior, while also repeatedly expressing skepticism that it necessarily occurred here. You are assuming a physical attack is a matter of fact, when in my view none was proved. My point is that Perce, the complainant, has no special first amendment protection from disputation or altercation.
posted by anigbrowl at 5:40 PM on February 27, 2012

vorfeed, are you familiar with the idea of mitigating circumstances? There is nothing disgusting about it.

It's worth noting that mitigating circumstances are also behind things like the gay-panic defense. I don't have a problem with it in and of itself, but the idea that some crimes are "understandable" is only fair when said crimes are understandable to everyone (say, stealing to feed one's starving family), not when they're used to punish or reward particular groups (as the judge put it: "those with a faith").

I would say that if you've never been in a temporary local minority where you experienced immediate physical anxiety then you are quite fortunate, since it is a distressing position to be in.

I have, and yes, it is. But religious demonstrations can also put minorities in this position, and they're not allowed to stop the demonstration (much less take people's signs) because the First Amendment guarantees the right to express religious views. As it should.

IMHO, this is why any remotely honest reading of the First Amendment must protect "blasphemy" and anti-religious speech as much as it does religious speech. Failing to protect anti-religious speech while protecting religious speech means nothing less than the de-facto establishment of a religion of "faith".

I haven't claimed that it does. The civil liability I was thinking of stems from the possibility that Perce could attempt to sue Elbayomy for battery.

Sorry, I must've read that wrong.
posted by vorfeed at 5:44 PM on February 27, 2012

anigbrowl, I can't dispute anything in your most recent comment. All I'll say is that you used a lot of law to conclude that it's OK to talk back to a parade marcher, it's not OK to physically harass a parade marcher, and atheists who mock Muslims don't have special rights.
posted by BobbyVan at 5:44 PM on February 27, 2012

I mean, don't get me wrong, of course you have a right to hold an opinion about anything you like, but the courts are under no obligation facilitate your opinion of them one way or the other. The deal with laws and the people effected by them, not with wooing the court of public opinion.

Some judges are elected. If not, they are appointed by elected officials. I admire the idea of 'Fiat justitia ruat caelum', but let's be honest, if I and others think judges are making poor decisions there are political consequences.

Alternatively, there are social consequences - if someone thinks the courts are completely useless to them, or even actively hostile, they will resolve conflicts in other, perhaps bloodier ways.

On the gripping hand, the trend for most institutions is increasing transparency. If your "You can't even begin to understand" attitude is common in the legal system, then I look forward to interesting times.

Further, I don't see how - even with the limited knowledge we posses - you could feel that this represents a poor judicial decision. The decision is that there was not enough evidence to make a judgment; whether the judge thinks the zombie is a dick is wholly incidental to this fundamental basis to the decision.

I'm not sure if this was a poor judicial decision. I am absolutely sure that the judge's lecture to the victim was a bad decision, because it stirred a large amount of otherwise unnecessary controversy. Seriously, if he had just said "Not enough evidence of a crime, go home, I don't want either of you to show up in my courthouse again," we would not be talking about this.
posted by dragoon at 5:51 PM on February 27, 2012 [1 favorite]

As far as the government's power to curtail such speech goes, yes. However, the defendant in this case is not the government, but an individual who took personal offense at the complainant's mockery of his religion and felt it as an immediate injury to his Islamic identity.

Of course the defendant is not the government. That's not the end of the analysis, however.

Had the judge dismissed the case due to the law not applying when the ZM guy was engaging in his offensive conduct, then that would raise the First Amendment issue. The government cannot bar people from the law's protection as a result of their FA-protected speech acts, no more than the government could dismiss the charges due to ZM guy not being a citizen, or to his being a member of some protected class, etc. etc. etc.

Point being, the case itself in real life was not dismissed on FA grounds, nor could it have been. Thankfully, the judge dismissed it due to lack of evidence instead. We're just talking about his non-binding remarks now.

[Did the Snyder decision determine that the WBC's conduct did not fall under the fighting words exclusion?]

Not so.

I'm afraid it did. Check the opinion itself. The majority decision explicitly rejected the idea that the WBC's speech constituted fighting words: "[A]s the court below noted, there is “no suggestion that the speech at issue falls within one of the categorical exclusions from First Amendment protection, such as those for obscenity or ‘fighting words.’ " Snyder, 131 S. Ct. at 1215 n.3. Only Alito thought that the WBC was engaging in fighting words. The fighting words doctrine has become wafer-thin.
posted by Sticherbeast at 5:53 PM on February 27, 2012 [2 favorites]

my god those screwed-up quotie marks look hideous
posted by Sticherbeast at 5:55 PM on February 27, 2012 [1 favorite]

Here's what really matters -- was justice served?

This guy engaged in asshole-ish, bigoted, provocative behavior based on either rank stupidity or complete dishonesty. He got a little bit roughed up by a father walking by with his kids who rather predictably took offense at it.

The assailant was arrested and got dragged into court, presumably had to hire a lawyer, and so on, so it's not like he got away scott free here, and the victim got a history lesson and a lesson in basic human decency from a judge who probably gave him more credit than he deserved.

Would justice have seriously been better served by throwing the guy in jail? If he had no criminal record and was otherwise a fine upstanding person? Jeopardizing his immigration status? Would could possibly have been served by that?

As far as I'm concerned, this ended about as well as could possibly have been expected.
posted by empath at 6:03 PM on February 27, 2012 [2 favorites]

Hi Dragoon, thanks for replying to my question - that makes more sense to me; in Australia judges are neither elected, nor appointed by elected officials per se, and I often forget that's the case in the US.

BobbyVan, if you can't engage with me in a proper dialogue, just forget about it.
posted by smoke at 6:05 PM on February 27, 2012

Instead, the sign-grabber was essentially given a pat on the back for attacking someone...

That's also a weird take. Being acquitted of a crime is not a pat on the back. Possibly avoiding a lecture (are we even sure nothing was said to him?) in a trial where you're not found innocent is not a pat on the back. An acquittal doesn't even mean you've done nothing wrong.

but the idea that some crimes are "understandable" is only fair when said crimes are understandable to everyone

It should be understandable to anyone that marching in a public Halloween parade mocking someone's religion with slogans like "only Mohammed can rape America" while shouting "I AM ZOMBIE MOHAMMED" or whatever might piss Muslims off and actually serves no other purpose than to piss Muslims off. And a Muslim got pissed off. That doesn't mean there should be no consequences if the guy gets violent and causes damage or injury. Nope, he should go to court if he commits a crime! Like this guy had to! But there was apparently not enough evidence, and he apparently caused zero injuries and zero damage to property, not even to the sign. So, yes, I'm pretty much 100% OK with no criminal charges and to let these 2 duke it out in civil court if they want to.

"But Hoopo," you might say, "what happens if you were just minding your own business wearing a T-shirt that says 'you suck' and someone who sucks ripped it off you and strangled you with it and threw you a pool of lava and then waited for it to harden and chiseled it into an obsidian statue in your likeness and attached it by a chain to the back of his jeep and dragged it along for miles on a cross-country Cannonball Run-type race while shouting 'WHO SUCKS NOW?' and laughing maniacally all the way? Is it a mitigating circumstance that he was offended by the 'you suck' T-Shirt? And then the judge in the murder trial slapped him a high 5 and bought him a beer and said it was your own damned fault? Would you love that? Because that's the path this judge has put us on."

Well my friend, that's a fair point and I guess I'll cross that river when I get to it.
posted by Hoopo at 6:07 PM on February 27, 2012 [9 favorites]

Are you seriously equating Islam with actual hate groups?

No, what I'm saying that if you go out in public to deliberately take the piss out of and offend certain cultures then people get upset. Well, unless it's America and the culture you wish to insult is Islamic culture. Of course if he had been trying to offend african americans, or jews, or homosexuals, or some other group then the masses would be howling about he got what he deserved.

Note that I think if you want to go out in the street and parade around your own ignorance and hatred, hey, go right ahead. And no I don't think it's OK to assault someone who is displaying such behavior.

But consider the dichotomy - is zombie Muhammad just as offensive as a swastika is? Should we go around shoving nooses in black peoples faces, deliberately to offend and provoke, just because we have the right to do it?
posted by smoothvirus at 6:08 PM on February 27, 2012 [1 favorite]

And yes, I'd say the same thing if it were a guy who got in to a tussle with a christian, or if someone got into a scuffle with one of those guys carrying around the aborted fetus signs, or the Westboro baptist guys. You know going into it that you're going to provoke a reaction from someone, the best you can expect out of it is police protection at the time, which this guy got. If a judge has any decency at all, they'll tell the guy who got hot under the collar to cool it next time and let him go about his life.

I think it's a far different situation, btw, when there's a coordinated, cold-blooded campaign of intimidation against someone, however, as is the case for the Mohammed cartoonists, and so on, though.
posted by empath at 6:10 PM on February 27, 2012

Sorry smoke, that was a little harsh.

Whether judges are appointed, elected, or immaculately conceived onto the bench is irrelevant. Their job is to uphold the people's laws (in a democracy). I was reacting to your dismissal of the public's interest in the operation of the courts.

I mean, don't get me wrong, of course you have a right to hold an opinion about anything you like, but the courts are under no obligation facilitate your opinion of them one way or the other. The deal with laws and the people effected by them, not with wooing the court of public opinion.

How the people's laws are administered is pretty important in a democracy. Not so much in places like North Korea.
posted by BobbyVan at 6:16 PM on February 27, 2012

That's also a weird take. Being acquitted of a crime is not a pat on the back.

The judge told the guy with the sign that he had "completely trashed [Muslims'] essence, their being". Given that the altercation was predicated on this very idea, that sure seems like a pat on the back for his opponent.

It should be understandable to anyone that marching in a public Halloween parade mocking someone's religion with slogans like "only Mohammed can rape America" while shouting "I AM ZOMBIE MOHAMMED" or whatever might piss Muslims off and actually serves no other purpose than to piss Muslims off.

So? Since when does the fact that someone "pissed me off" count as mitigating circumstances? The only thing which supposedly makes this (as opposed to any other pissed-off-making action) mitigating circumstances is the religious angle, and anti-religious speech is protected speech. Zombie Muhammed does not create mitigating circumstances any more than God Hates Fags does, and countless lawsuits have demonstrated that the latter is protected even though it serves no other purpose than to piss off gays and their supporters.
posted by vorfeed at 6:37 PM on February 27, 2012 [2 favorites]

No, what I'm saying that if you go out in public to deliberately take the piss out of and offend certain cultures then people get upset. Well, unless it's America and the culture you wish to insult is Islamic culture.

From the reports, it seems his buddy was mocking the papacy. So, it seems they were on a bit of an anti-religion kick in general. For all we know, if a butterfly had flapped its wings, his friend could've been the one who was assaulted/harassed. I haven't seen anything in the reporting that suggests a particular anti-muslim bias, as opposed to a general anti-religious thing going on. Could be wrong on that.
posted by amorphatist at 6:41 PM on February 27, 2012

Perce seems to contend that such victim blaming against him means that the judge was biased against atheists. It seems more likely to me that the judge is biased against assholes.

I'm not saying that's not the case. What I am saying is that the 14th amendment gives people the right to equal protection under the law, not equal protection with the exception of assholes.

Freedom of speech means the government has to protect you while you're freely speaking. Do I agree with this sign? Obviously not. That's not the point. The point is, it's none of the judges business whether the victim a crime is an asshole.

The reason I have so little sympathy for the invocation of the first amendment (at the time of the incident, under color of 'this is America, dude...we have freedom of speech') is that the 1A also protects the free exercise of religion; and the defendant's assertion that such mockery is offensive to him as a Muslim falls within that.

Actually, it's the other way around, freedom of religion should mean the freedom to criticize other religions. Since all of these religions think the others are all wrong, it would be impossible to have 'free' religion without the right to criticize religion.

Additionally, people complaining about a judge lecturing defendants or plaintiffs have quite obviously spent very little time in a court room - it is incredibly common behaviour and well within expected norms whether you agree with them or not.

This guy was the VICTIM. Judges lecturing victims would be, I think, pretty unusual.

I would have liked to see him prosecuted for harassment, if it can be proved that he did attack someone. Failing that, I would have liked to see him get a lecture along with or instead of the victim (or, alternately, for the case to be dismissed for lack of evidence, without any lecture at all).

Yeah, I'm not saying this guy should be thrown in jail. But he should be the one getting the lecture here.

vorfeed, are you familiar with the idea of mitigating circumstances? There is nothing disgusting about it. And I'm very clearly and specifically not saying there should never be consequences for someone who assaults someone by punching or ripping their shirt off or whatever the hell you're on about right now. You're being silly.

Being offended is not a 'mitigating' circumstance.
posted by delmoi at 6:45 PM on February 27, 2012 [3 favorites]

From the reports, it seems his buddy was mocking the papacy. So, it seems they were on a bit of an anti-religion kick in general. For all we know, if a butterfly had flapped its wings, his friend could've been the one who was assaulted/harassed. I haven't seen anything in the reporting that suggests a particular anti-muslim bias, as opposed to a general anti-religious thing going on. Could be wrong on that.

Yeah, the friend was dressed as a "creepy pope" and making jokes about wanting people's children. Obviously attacking the pope isn't as offensive to Catholics as attacking Muhammad is to Muslims
posted by delmoi at 6:47 PM on February 27, 2012 [1 favorite]

Freedom of speech means the government has to protect you while you're freely speaking.

He was protected, was he not? Did the police arrest the assailant and charge him with assault or not? Was he stopped from continuing his stupid march?

Being offended is not a 'mitigating' circumstance.

Provocation is almost a textbook example of a mitigating circumstance.
posted by empath at 6:51 PM on February 27, 2012

In any case, it wasn't thrown out for provocation, it was thrown out for lack of evidence.

Insufficient evidence - An assault and battery charge can be dismissed due to insufficient evidence. For example, maybe there were no eyewitnesses of the assault and battery or no visible injuries on the victim. The most common insufficient evidence defense is an absence of the intent to harm the person. You do not need direct proof of intent as long as the circumstances infer you acted with intent to harm.

posted by empath at 6:54 PM on February 27, 2012 [2 favorites]

All I'll say is that you used a lot of law to conclude that it's OK to talk back to a parade marcher, it's not OK to physically harass a parade marcher, and atheists who mock Muslims don't have special rights.

I did, and mainly in response to your portentous claim that the judge was expressed in a 'dangerous' abuse of power and had a 'warped' understanding of the first amendment for saying the same thing, which was so serious that it may have been grounds for removal from the bench. To me there's a big difference between the state overreaching its powers by interfering with protected expression, even offensive expression, and a representative of the state (the judge) observing that the constitutional protections of the first amendment have boundaries, particularly as they relate towards private rather than official actors.

[re. Snyder] I'm afraid it did. Check the opinion itself. The majority decision explicitly rejected the idea that the WBC's speech constituted fighting words

Er...ISTM that while disputing Alito's dissent, it did so by observing that such a claim was not part of the appellant's case in the first place. But in any case, while the holding rested largely on the fact that WBC's speech was protected primarily by virtue of being made on a subject of public concern (however offensively), the distance between the protest and funeral, and the practical invisibility of the protest to the funeral attendees, satisfied the state's reasonable regulatory interest (at 1218-19, citing Clark).

Consider that in Snyder, the WBC sought prior permission for its demonstration and in the event the closest proximinity between demonstration and funeral cortege was several hundred feet; Snyder's personal emotional distress did not take place until he viewed footage of the WBC demonstration on the local news later that day (at 1213-14).

Now contrast this with the experience of the defendant in the instant case; he's an attendee at a Halloween parade, when a parade participant approaches him, expressing views about Islam in a manner that the defendant found unbearably offensive. At this point he left the sideline and remonstrated with Perce about the offensive nature of his costumed persona. My interpretation of the judge's informal remarks is that while Perce was entirely justified in bringing a complaint of harassment (even if not proven), he stepped outside the bounds of his first amendment protections to the extent that he continued to knowingly provoke Elbayomy as they walked down the street together for another 3 blocks (presumably while arguing - Perce cuts off his recording after claiming that he was attacked, and we can only guess at what interaction the two men had between that point and the appearance of Officer Curtis). I suspect the judge's rationale for saying so may have had something to do with the offense that immediately follows harassment in the PA penal code, Ethnic Intimidation.

I agree that the fighting words doctrine is wafer-thin nowadays, but think there is a significant qualitative difference between the two situations - the offense taken by seeing something offensive and hurtful on one's television, vs that taken by having someone come into one's presence while speaking in an offensive manner.
posted by anigbrowl at 7:20 PM on February 27, 2012 [1 favorite]

Provocation is almost a textbook example of a mitigating circumstance.

Yes, and merely doing something which happens to offend someone is not an act of "provocation". The standard for provocation as a mitigating circumstance is generally that "any reasonable person" would have done the same in the face of the same insult, and it's very hard to argue that any reasonable person in America would get in an altercation with someone marching in a Halloween parade over an insult to Muhammed (or, as above, the Pope).

This is also why judges don't tend to give six-minute one-sided lectures on the oh-so-mitigating topics of sitting on someone else's barstool, looking at someone else's girlfriend, or joking about somebody's Mom. Provocation isn't just "offending" someone or "pissing someone off", and it sure as hell isn't wearing a costume in a Halloween parade.
posted by vorfeed at 7:28 PM on February 27, 2012 [1 favorite]

When someone is trying to make up excuses for someone's bad behavior, they ought to avoid using the most narrow weasel-worded interpretations of language possible while deliberately ignoring the most obviously intentionally communicated interpretations of simple sentences. Otherwise they would risk looking like a literal-minded fool incapable of deciphering even the most simple subtext.

Notice, I didn't call you a fool here. Yet, in the hypothetical case that we all admitted that it's possible to call someone names clearly-yet-indirectly, I would still feel compelled to apologize for some reason...

I don't feel insulted. I disagree -- quite entirely -- that it is being literal-minded to the point of obtuseness to distinguish between a) calling someone <name> and b) stating that when one behaves in <x> manner one risks being perceived as <name>, where <x> is commonly considered a distinguishing characteristic of individuals who are considered to be <name>. I think it is a perfectly fine, and useful, distinction to make.

But I have grown quite accustomed to the experience of drawing finer and/or different distinctions about reality than many around me so I'm neither particularly surprised nor particularly disconcerted by your failing to make this particular distinction.

As far as making excuses for a non-atheist being my primary motivation, this is unlikely. I've been an outspoken atheist for decades. It says atheist on my facebook profile, which is professionally feasible for me since I live in a country where despite not incessantly masturbating about our god^h^h^hstate-given right to insult other people we manage to have a reasonable ACTUAL degree of freedom of belief.
posted by lastobelus at 7:32 PM on February 27, 2012 [1 favorite]

I did, and mainly in response to your portentous claim that the judge was expressed in a 'dangerous' abuse of power and had a 'warped' understanding of the first amendment for saying the same thing, which was so serious that it may have been grounds for removal from the bench. To me there's a big difference between the state overreaching its powers by interfering with protected expression, even offensive expression, and a representative of the state (the judge) observing that the constitutional protections of the first amendment have boundaries, particularly as they relate towards private rather than official actors.

Well, after a provisional review of the information available, I have to agree with Jonathan Turley (no right wing Islamophobe) that there are "legitimate questions over the basis for the dismissal." When you add that to the highly unusual lecture about the how the alleged victim's Halloween costume went against the intent of the Founding Fathers, followed by a seminar about the true meaning of Islam, I think this judge has a lot to answer for. At the very least, he is very unsympathetic to the idea that unpopular speech might need more protection - not less - from the government. In short, his discussion of the First Amendment is "warped".

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.

If all we ever did with the First Amendment was speak our mind and not piss anyone off, we wouldn't need a First Amendment.

Provocation is almost a textbook example of a mitigating circumstance.

Wearing a Halloween costume = provocation? How far are you willing to go on this? Would a suggestively clad woman walking through a conservative Muslim neighborhood also count as provocation?
posted by BobbyVan at 7:35 PM on February 27, 2012 [1 favorite]

I always struggle with this, where people cannot process the idea that an amount of responsibility or contribution can be attributed to a victim in some cases. It's not even a difficult or novel concept. People here seem to hear see this and instantly assume there's no blame put on what's-his-face sign-grabber, and we're making idiot zombie Mohammed the bad guy. It's not that simple. In concert with the fact that he did not injure anyone or cause any damage to property, I think the end result is pretty much exactly what it should be. Buddy's 1st Amendment right was supposedly violated for about 45 seconds before the guy got arrested and Perce could carry on making his clever point about Mohammed being a an America-raping zombie or something, which is just a Halloween costume, man, relax.

Insufficient evidence - An assault and battery charge can be dismissed due to insufficient evidence.

It wasn't even assault and battery he was charged with, it was harassment.

it's very hard to argue that any reasonable person in America would get in an altercation with someone marching in a Halloween parade over an insult to Muhammed

You seem to have mistaken yourself for "any reasonable person".

Wearing a Halloween costume = provocation? How far are you willing to go on this?

I'd go so far as to say that marching in a parade shouting anti-Muslim slogans, with other anti-Muslim slogans on a placard, goes well beyond "wearing a Halloween costume". That's how far I'm willing to go on this.
posted by Hoopo at 7:44 PM on February 27, 2012 [3 favorites]

But I have grown quite accustomed to the experience of drawing finer and/or different distinctions about reality than many around me

I can imagine that's very true.
posted by amorphatist at 7:48 PM on February 27, 2012

Ok, seriously. What happened? Guy got into a small tussle. Was he hurt? Probably not, or you know full well he would have a litany of his injuries. Hell, his Styrofoam sign that the other guy was going for was still in good shape which means it couldn't have been that voilent. So, guy gets into a shoving, shouting match. The person who instigates it gets arrested. You know what happens 99% of the time? Charges are dropped. Really, a minor little shoving match, everyone cools off, the guy who started it had to deal with the court system, spend a day in jail, had to learn that this behavior has consequences. It's the way the system works. But no, this pompous ass (and he was a pompous ass, his video + misrepresentation of the judge shows that pretty well) insists on going to trial. Insists on wasting the courts time, and I suspect was a bit of an ass during the trial itself.

There's not enough evidence to show that this was a serious issue. The judge throws out the case, and yes he speaks his mind a bit. He's a judge. He knows what serious issues are and he knows this was not a serious issue. Law is not running to the teacher, it's the kind of thing that can ruin someone's life.
posted by aspo at 7:50 PM on February 27, 2012 [1 favorite]

At the very least, he is very unsympathetic to the idea that unpopular speech might need more protection - not less - from the government. In short, his discussion of the First Amendment is "warped".

And how, pray tell, did the government act to limit Perce's freedom of speech in this instance? Was he arrested, detained, or driven away from the parade? No, his antagonist was placed under arrest and charged with harassment.

Wearing a Halloween costume = provocation? How far are you willing to go on this? Would a suggestively clad woman walking through a conservative Muslim neighborhood also count as provocation?

Well, let's try it with the roles reversed: would you say that a Muslim chanting 'Death to America' was being provocative compared to a Muslim that simply utters some general profession of faith like 'I believe Muhammad is God's prophet'? The former seems offensive to me as a denizen of the US, whereas the latter is simply a belief that I don't share but which doesn't threaten me in any fashion.
posted by anigbrowl at 7:52 PM on February 27, 2012

I, for one, fully support the judge's First Amendment Rights to voice his opinions off the record. Hell, I support that right even if I disagree with what he might say.

(I also support the legal system's right to dismiss cases due to lacking evidence, or an inappropriate or over-reaching charge.)
posted by Dysk at 8:04 PM on February 27, 2012 [1 favorite]

And how, pray tell, did the government act to limit Perce's freedom of speech in this instance? Was he arrested, detained, or driven away from the parade? No, his antagonist was placed under arrest and charged with harassment.

Perce was allegedly attacked by another citizen for expressing an unpopular viewpoint. In court, the charges are dropped under dubious circumstances and Perce is lectured by the judge about the incorrectness and inappropriateness of his viewpoint. As I see it, the judge is continuing the intimidation begun by Elbayomy.

Well, let's try it with the roles reversed: would you say that a Muslim chanting 'Death to America' was being provocative compared to a Muslim that simply utters some general profession of faith like 'I believe Muhammad is God's prophet'? The former seems offensive to me as a denizen of the US, whereas the latter is simply a belief that I don't share but which doesn't threaten me in any fashion.

Yeah I suppose. Neither would be mitigating if someone attacked either Muslim.
posted by BobbyVan at 8:06 PM on February 27, 2012

You seem to have mistaken yourself for "any reasonable person".

No, actually. Most Americans do not care about blasphemy. This is blatantly obvious when you look at the amount of it which goes on without protest or often even notice, much less public altercations.

Well, let's try it with the roles reversed: would you say that a Muslim chanting 'Death to America' was being provocative compared to a Muslim that simply utters some general profession of faith like 'I believe Muhammad is God's prophet'? The former seems offensive to me as a denizen of the US, whereas the latter is simply a belief that I don't share but which doesn't threaten me in any fashion.

Yes, that is comparatively provocative, but enough to count as mitigating circumstances to harassment or assault? I don't think so, and especially not if it happens in a Halloween parade. It seems obvious to me that the same First Amendment protection applies here -- people have the right to be "offensive", and the mere fact that they are "offensive" does not make it less of a crime to attack them.

The idea that wearing a sign expressing a political viewpoint counts as "provocation" to harassment or assault is so unconstitutional it hurts. Seriously, this is what Cohen v. California was about... and you lost.
posted by vorfeed at 8:20 PM on February 27, 2012 [3 favorites]

The idea that wearing a sign expressing a political viewpoint counts as "provocation" to harassment or assault is so unconstitutional it hurts.

Well it's a good thing the Judge never even implied that was the case, now isn't it?
posted by aspo at 8:25 PM on February 27, 2012 [1 favorite]

I'm not talking about the judge. I'm talking about comments like provocation is almost a textbook example of a mitigating circumstance, when applied to this case.
posted by vorfeed at 8:32 PM on February 27, 2012 [1 favorite]

Wearing a Halloween costume = provocation?

Do you know that that is all that happened? There were no words exchanged? No pushing back and forth? I wasn't there, were you?
posted by empath at 9:29 PM on February 27, 2012

empath, I'm going by Jonathan Turley's account of the incident:

Perce says that Elbayomy grabbed him and tried to take his sign. Elbayomy was at the parade with his wife and children and said that he felt he had to act in the face of the insult. The officer at the scene, Sgt. Brian Curtis, correctly concluded that Perce was engaged in a lawful, first amendment activity. He therefore charged Elbayomy. While it looks like an assault, he was only charged with harassment.

posted by BobbyVan at 9:46 PM on February 27, 2012

Goddammit. I can't believe this argument over free speech is still being had.

Listen. The First Amendment was not created to protect "safe" or "polite" speech. It was created to protect offensive speech. Morally reprehensible speech. The worst shit you can possibly imagine. That is what it was meant to protect. Safe speech needs no protection.

This judge doesn't get it. He has got to go. Immediately.
posted by secondhand pho at 9:46 PM on February 27, 2012

"This judge doesn't get it. He has got to go. Immediately."

Sorry, that's idiotic.

Here's what happened:

First, Zombie Mo contends Muslim Guy harassed him. What evidence is there for that? There's the YouTube video, in which Zombie Mo says he is being attacked, but that shows no direct attack. We don't hear the Zombie Pope, for whatever reason (the audio that purports to demonstrate that the ZP was offering to testify does not demonstrate that the MG harassed ZM).

Given that evidence, no one can seriously contend that the state has met its burden to prove harassment, covering neither the physical altercation nor the intent.

We can't speculate on why the ZP wasn't allowed to testify; it's entirely possible that the judge didn't find his testimony credible from affidavits filed (e.g. conflicts with ZM's testimony).

Given that, it's entirely proper for the judge to dismiss the case.

Second, Zombie Mohammed did act like an asshole intentionally. The judge does not say that it is illegal for the ZM to act like an asshole, just that it's unwise (and assholey).

Third, the Zombie Mohammed has consistently misrepresented the statements of the judge, in a way that any dispassionate observe should be able to immediately apprehend. This further should diminish his credibility, as well as the credibility of the blogs which have represented the ZM statements as if, well, gospel. The judge's explanations for his statements are consistent and credible.

So, no, the judge doesn't have to go immediately. Calm down and think things through starting with the evidence instead of just begging the damn question left and right.
posted by klangklangston at 10:25 PM on February 27, 2012 [9 favorites]

The idea that wearing a sign expressing a political viewpoint counts as "provocation" to harassment or assault is so unconstitutional it hurts.

You know I'm not talking about using provocation as a defense, right? Not as in something that gets you off scot-free. I've been pretty clear about that from the outset. What I am saying is that I have absolutely no problem with taking into account that the guy was being deliberately provocative when doling out whatever consequences there are going to be. Now considering this lasted less than a minute, no injury or damage was done, and the guy lost his shit because this asshole was running around saying the Prophet rapes America in the middle of a Halloween parade he brought his daughter to, I think the penalty should be pretty lenient even if there was enough evidence. Maybe no criminal charges are necessary here and it can be handled as a civil matter?

This judge doesn't get it. He has got to go. Immediately.

The judge did not do anything except give the guy a lecture about if you're going to go out and shit all over someone's religion you would look a lot less stupid if you knew what you were talking about. The only person that in any way got in the way of zombie Mohammed's right to free speech got arrested. The case didn't even have anything to do with Freedom of Speech. What is it you see that would imply the judge doesn't get the first amendment or should step down?
posted by Hoopo at 10:27 PM on February 27, 2012 [3 favorites]

I'm going by Jonathan Turley's account of the incident:

I'm sorry, I didn't know he was a witness.
posted by empath at 11:01 PM on February 27, 2012

What I am saying is that I have absolutely no problem with taking into account that the guy was being deliberately provocative when doling out whatever consequences there are going to be.

And what I am saying is that this is unconstitutional. Religious expression, including blasphemy, is protected by the First Amendment, and religious expression is the only thing which makes this guy's costume "deliberately provocative".
posted by vorfeed at 11:11 PM on February 27, 2012

It's unconstitutional to have anything but a one-size-fits-all, black or white standard, mandatory sentence I guess. It seems to be lost on you that no one challenged his right to express himself under the First Amendment. No one prosecuted him for anything or tried to lay any charges against him for expressing his opinion. He was running around mocking Muslims, got into an altercation with a Muslim where it's not even clear if there was any content or fits the definition of criminal harassment, for which the Muslim was arrested and he got to go on his way. This is unconstitutional infringement on his protected free speech somehow. Freedom of speech is freedom from lectures.
posted by Hoopo at 11:51 PM on February 27, 2012 [3 favorites]

It's unconstitutional to have anything but a one-size-fits-all, black or white standard, mandatory sentence I guess.

No, it's unconstitutional to base sentencing on religious expression.

No one prosecuted him for anything or tried to lay any charges against him for expressing his opinion. He was running around mocking Muslims, got into an altercation with a Muslim where it's not even clear if there was any content or fits the definition of criminal harassment, for which the Muslim was arrested and he got to go on his way. This is unconstitutional infringement on his protected free speech somehow. Freedom of speech is freedom from lectures.

None of that has much to do with "taking into account that the guy was being deliberately provocative when doling out whatever consequences there are going to be".

As I said above, the problematic thing with regards to this case is a judge who doesn't seem to mind creating the appearance of religious bias in his court, up to and including telling victims that they are "way outside your bounds of first amendment rights" when they're clearly not. This has nothing to do with the idea that "freedom of speech is freedom from lectures", as I can think of many lectures which do not explicitly privilege religion... but this was not one of them, and it was not even trying to be one of them. It was straight-up about how great Islam is and how offensive it is to insult it, and from an American judge that's a problem.
posted by vorfeed at 12:17 AM on February 28, 2012 [2 favorites]

Not so. As well as the protection being from government interference rather than personal opposition, in the WBC case the Court held that the existing provisions for controlling speech (the requirement to picket within a designated area at a minimum distance from the funeral proceedings) were adequate to protect the complainant from harm. Offensive as WBC's protest was, it was too far removed from the memorial service to present any colorable threat or intimidation to the mourners that would undermine the 1A's grant of protection.

The Westboro Baptist Church protests which, at least back in the early 90s, were always held on the corner of SW 21st Blvd and Washburn Ave, in Topeka , KS, actually prevented me from going to class on many nights. I missed two finals because I was actually attacked twice by members of that group. Still boggled at how this is free speech. Given the chance again, Imma punch one of them in the balls.
posted by blessedlyndie at 12:55 AM on February 28, 2012

No, it's unconstitutional to base sentencing on religious expression.

I don't buy this. You're saying that anything that could be argued constitutes religious expression cannot be taken into account for sentencing purposes under the Constitution?
posted by Hoopo at 12:55 AM on February 28, 2012

The standard for provocation as a mitigating circumstance is generally that "any reasonable person" would have done the same in the face of the same insult, and it's very hard to argue that any reasonable person in America would get in an altercation with someone marching in a Halloween parade over an insult to Muhammed (or, as above, the Pope).

You're arguing in knots to defend your point. The test is, necessarily, whether a reasonable person would respond to the provocation the person experienced, taking into account the severity of that provocation to them subjectively. If I say "I fucked your mother", to X, it is more likely to be a real provocation to him than saying "I fucked X's mother" to Y.

But man is this a dumb argument. No-one was acquitted on the basis of provocation. The prosecution seem to have been unable to make out their case, judge told the complainant not to be a dick. This sort of thing happens all the time, but I guess, y'know....MUSLIMS!
posted by howfar at 1:14 AM on February 28, 2012 [3 favorites]

I'm not saying that's not the case. What I am saying is that the 14th amendment gives people the right to equal protection under the law, not equal protection with the exception of assholes.

Freedom of speech means the government has to protect you while you're freely speaking. Do I agree with this sign? Obviously not. That's not the point. The point is, it's none of the judges business whether the victim a crime is an asshole.

Unless you have definitive proof that the ruling was based on assholery, and not on any of a number of other factors, not the least of which was a stunning lack of evidence, then there's nothing applicable about the 1st or 14th Amendments.

Wearing a Halloween costume = provocation? How far are you willing to go on this? Would a suggestively clad woman walking through a conservative Muslim neighborhood also count as provocation?

And there it is, the disgusting and fairly offensive equation of this act to being raped. How the fuck can you seriously claim that a woman dressed proactively and engaging in passive or neutral behavior is equivalent to someone wearing a sign suggesting Mohammed rapes America/Americans?

No, it's unconstitutional to base sentencing on religious expression.

For the billionth time, there is absolutely zero evidence supporting your assertion that the sentencing was based on anything but lack of evidence.

As I said above, the problematic thing with regards to this case is a judge who doesn't seem to mind creating the appearance of religious bias in his court, up to and including telling victims that they are "way outside your bounds of first amendment rights" when they're clearly not. This has nothing to do with the idea that "freedom of speech is freedom from lectures", as I can think of many lectures which do not explicitly privilege religion... but this was not one of them, and it was not even trying to be one of them. It was straight-up about how great Islam is and how offensive it is to insult it, and from an American judge that's a problem.

Again, there is no evidence of this whatsoever, and definitive evidence that is explicitly not the case.
posted by zombieflanders at 6:22 AM on February 28, 2012 [2 favorites]

zombieflanders, it's extremely disappointing that you're failing to stand in solidarity with your zombie brethren in this instance.

And there it is, the disgusting and fairly offensive equation of this act to being raped. How the fuck can you seriously claim that a woman dressed proactively and engaging in passive or neutral behavior is equivalent to someone wearing a sign suggesting Mohammed rapes America/Americans?

I didn't say there was an equivalence. My question was "how far are you willing to go on this?" I'm assuming, for the sake of argument, that Zombie Muhammad was engaged in purely expressive activity in front of a crowd (i.e., that he was not taunting or challenging people on an individual basis). I do not believe that such expressive activity can be, in itself, provocative to the point that it could establish mitigating circumstances for another individual to interfere with or harass that person. Of course, if Zombie Muhammad was picking out people who looked like they might be Muslim from the crowd and trying to get a rise from them, I would characterize ZM as provocative and consider that fact to be mitigating.

I thought the comparison to a suggestively dressed woman was apt, especially given that there have been numerous incidents in conservative Muslim and Jewish communities wherein women were spat upon or attacked for dressing in a manner deemed by some to be inappropriate (or provocative). Even if a woman was being intentionally provocative, I do not believe that fact alone would establish mitigating circumstances for someone to break the law. One of the prices of living in a liberal society is tolerating assholes.
posted by BobbyVan at 6:40 AM on February 28, 2012

I do not believe that such expressive activity can be, in itself, provocative to the point that it could establish mitigating circumstances for another individual to interfere with or harass that person.

You're probably correct, but he's still an asshole. And for the nth time, it was dismissed for lack of evidence.
posted by empath at 6:42 AM on February 28, 2012 [3 favorites]

You're probably correct, but he's still an asshole. And for the nth time, it was dismissed for lack of evidence.

We're agreed that he's an asshole. And I also agree that the judge claims to have dismissed the case for lack of evidence. I'm skeptical about that claim, and think the judge needs to better explain himself, because he's left the impression that he dismissed the case because he was unsympathetic to the alleged victim because of the content of his views.
posted by BobbyVan at 6:47 AM on February 28, 2012

More First Amendment idiocy from Judge Martin (CNN, via Volokh)

Interviewer: When I spoke to him over the phone, Judge Martin acknowledged it’s his job to protect the rights of people like the atheist, no matter how offensive they might be.

Interviewer to Judge Martin: … There are some who believe you were failing to protect that right.

Judge Martin: No, I don’t think so. Here’s the thing: It’s a right, it’s not a privilege, it’s a right. With rights come responsibilities. The more that people abuse our rights, the more likely that we’re going to lose them.

posted by BobbyVan at 7:10 AM on February 28, 2012

Okay, look. I don't have a problem with the guy not getting convicted. That's fine. If there wasn't enough evidence, there wasn't enough evidence.

But the problem here is the lecture this guy got for exercising his free speech. I realize some people in this thread don't think he was within first-amendment protected speech but you're obviously wrong.

Secondly, to see how this is a problem, just imagine different scenarios:

Imagine this had been the 1950s and this judge was telling a civil rights protestor that they were being a 'Doofus' for making some civil rights argument in the deep south. What's the difference?

The chilling effect there would be pretty obvious. But, since this is some guy you don't like with a message you don't like you seem completely unwilling to consider the general rule, divorced from the specifics.

The same thing would be true of Fried Phelps. If someone did what this guy did to Fried Phelps, and the judge dismissed the case and lectured Phelps on being an asshole, that would send a message to a lot of people that you can do that and get away with it legally. That would mean that Phelps would have less legal protection then he otherwise would.

Now, there is some 'parsing' going on where people basically make the argument that 'well, he didn't specifically say X or Y', therefore you can't claim he did. But that's also kind of ridiculous. You can make a statement that's perfectly legal on paper, but is obviously intended to intimidate someone. It also makes it seem like he may have dismissed the case because he didn't like the guy, rather then a real lack of evidence.

Keep in mind, it wouldn't have been this guy's decision to prosecute. The police decided to arrest this guy, and the prosecutors decided to prosecute him. The victim wasn't suing him in civil court, or something this was a criminal proceeding.

Beyond that, this 'legal parsing' of the judges words ignores the fact that the victim might not understand exactly what the judge is 'literally' saying. Obviously there was some misinterpretation going on here. But if the victim thought that he wouldn't be protected in the future by the police then that would obviously have a huge chilling effect, even if the judge chose his words carefully to avoid saying outright.

Seriously, a judge has no business chastising the victim of a crime for doing something (legal) to 'deserve' it
---

Ok, seriously. What happened? Guy got into a small tussle. Was he hurt? Probably not, or you know full well he would have a litany of his injuries. Hell, his Styrofoam sign that the other guy was going for was still in good shape which means it couldn't have been that voilent. So, guy gets into a shoving, shouting match. The person who instigates it gets arrested. You know what happens 99% of the time? Charges are dropped. -- aspo

Sure, I don't have a problem with that. The problem is the fact that the judge gave this guy this lecture.

And how, pray tell, did the government act to limit Perce's freedom of speech in this instance? Was he arrested, detained, or driven away from the parade? No, his antagonist was placed under arrest and charged with harassment. -- anigbrowl

As I explained, even if the judge didn't 'literally' say that he couldn't count on the law to protect him in a situation like that, there is an implied message. It also makes it seem like he had a beef with the victim, which seems really inappropriate.

As I said, change the specifics. Say this was a civil rights advocate in the 1950s. Or an abolitionist in the 1840s. The stuff they would have been saying would be highly offensive to some people, but if a judge had decided to drop charges against someone who'd assaulted them it would have sent a clear message that those people wouldn't be getting the protection of the law.

Well, let's try it with the roles reversed: would you say that a Muslim chanting 'Death to America' was being provocative compared to a Muslim that simply utters some general profession of faith like 'I believe Muhammad is God's prophet'? The former seems offensive to me as a denizen of the US, whereas the latter is simply a belief that I don't share but which doesn't threaten me in any fashion. -- anigbrowl

So, lets say some Muslim was out there yelling "death to America" and someone ran up and got into an 'altercation' with him. You'd be fine with judge giving him a lecture and telling him that it was his own fault for being a dumbass, and that he shouldn't have been saying that? How is that not a curtailment of freedom of speech.

Also, annoying is the insistence on looking a the 'legal details' of whatever the judge said, rather then what kind of message the guy would have taken home. In the muslim guy example, it seems obvious that the message is "Don't say that here, you're not protected if you do." Had it been a civil rights protestor, or Fred Phelps, the messages would all be the same.

With this guy, it's not as clear because obviously most people are not going to get that upset over the sign, so it's not like he really needs to live in fear.

But still, you have to come up with a rule that applies regardless of the particulars of the argument.

It seems like some people are either completely unable to generalize, or else do believe that it should be OK to take away the protection of the law (or imply that it's taken away) for people who make offensive statements.

---

Provocation is almost a textbook example of a mitigating circumstance. -- empath

feel free to link to the textbook. (I'm not holding my breath)

Insufficient evidence - An assault and battery charge can be dismissed due to insufficient evidence. For example, maybe there were no eyewitnesses of the assault and battery or no visible injuries on the victim. The most common insufficient evidence defense is an absence of the intent to harm the person. You do not need direct proof of intent as long as the circumstances infer you acted with intent to harm. -- empath

He was charged with harassment, not assault.

Well it's a good thing the Judge never even implied that was the case, now isn't it? -- aspo

No, but again random people in the thread are saying it was.

Do you know that that is all that happened? There were no words exchanged? No pushing back and forth? I wasn't there, were you? -- empath

First you say wearing a costume is provocation, then you say "well, maybe there was something we didn't see!" Well, sure, and maybe the Muslim guy punched out a bunch of other atheists the night before. If no one knows about it then we can't really discuss it.

Insinuating that maybe there is more information out no one knows about, but happens to back up your position, is beyond ridiculous.

Interviewer: When I spoke to him over the phone, Judge Martin acknowledged it’s his job to protect the rights of people like the atheist, no matter how offensive they might be.

Interviewer to Judge Martin: … There are some who believe you were failing to protect that right.

Judge Martin: No, I don’t think so. Here’s the thing: It’s a right, it’s not a privilege, it’s a right. With rights come responsibilities. The more that people abuse our rights, the more likely that we’re going to lose them.

If this guy thinks we're at risk of losing our ability to badmouth Islam he's delusional. On the other hand this guy is spouting nonsense that's going to inflame the Islamophobic crazy-sphere. (according to the logic of some in this thread, by the way he shouldn't be saying it because it's so offensive to large groups of people *rolls eyes*)
posted by delmoi at 7:44 AM on February 28, 2012 [2 favorites]

Seriously, a judge has no business chastising the victim of a crime for doing something (legal) to 'deserve' it

He was a complainant who made an allegation that could not be legally substantiated, and he was a massive dick in the process. In the eyes of the law, the occurrence of the crime was not shown. Even had it been, I'm not sure how being a victim of a crime would make this guy less of an unpleasant bigot. One can apply proper standards of justice to offenders without giving up on having moral standards about everyone else. You don't have to believe that you should take away the protection of the law from arseholes just because you acknowledge them to be an arseholes.

Judges really do give lectures to people every day that have no bearing on how they interpret their responsibilities as judges. There was simply nothing said anywhere that suggested the judge in question thought that the provocation would amount to a defence to the alleged crime, but by all means add your voice to the baying of a racist mob, delmoi. It's not usually your style, but that's freedom of speech, ain't it?
posted by howfar at 8:00 AM on February 28, 2012 [6 favorites]

You're probably correct, but he's still an asshole. And for the nth time, it was dismissed for lack of evidence.

Okay, fair enough, it was dismissed for lack of evidence.

The judge still overstepped his bounds by lecturing the plaintiff while acting in his official capacity as judge, no? If he'd run into the guy at the bar later and said "look, buddy, something you may wanna think about..." that'd have been one thing. But he was still acting in his official capacity as a judge when he took the plaintiff aside.

It came across like, "okay, TECHNICALLY I'm throwing this case out because of a lack of evidence, but that's only because I am not allowed to throw it out for these other reasons."
posted by EmpressCallipygos at 8:01 AM on February 28, 2012 [2 favorites]

As I explained, even if the judge didn't 'literally' say that he couldn't count on the law to protect him in a situation like that, there is an implied message.

Did you actually listen to him? He does explicitly affirm his right to say what he did. He says "You have the right to say that." I do grant that he was sending mixed messages, but his right to say those things was never challenged.

If someone did what this guy did to Fried Phelps, and the judge dismissed the case and lectured Phelps on being an asshole

If someone confronted Fred Phelps and tried to grab his sign, then got arrested, while Phelps was free to continue telling grieving families at their loved ones' funerals that God hates their faggot son who is now burning in Hell, and gave him a lecture about it, you think this would have a "chilling effect"?
posted by Hoopo at 8:27 AM on February 28, 2012 [1 favorite]

I do grant that he was sending mixed messages, but his right to say those things was never challenged.

I thought he sent a pretty clear signal that the alleged victim's particular message was unworthy 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 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.

Who knows what "right" the judge is referring to here, as distinct from the First Amendment. Maybe the "right" to be a doofus and get your ass kicked for it as a result. Merely citing the First Amendment and talking in the abstract about someone's "right" doesn't = respect for free speech. Especially when the lecture includes this jarring insight:

In many other Muslim-speaking countries, err, excuse me, many Arabic-speaking countries, predominantly Muslim, something like this is definitely against the law there, in their society. In fact, it could be punished by death, and frequently is, in their society.

This is blatant intimidation. What's the judge saying, "you're lucky the defendant went so easy on you?" "Consider yourself lucky you didn't have your head chopped off?"
posted by BobbyVan at 8:45 AM on February 28, 2012 [2 favorites]

I work in appeals, and judges give lectures all the time, and say far worse than "doofus." That has nothing to do with the ruling for lack of evidence. Yoink is one of the only people in this thread making any sense.
posted by agregoli at 8:54 AM on February 28, 2012 [3 favorites]

The judge still overstepped his bounds by lecturing the plaintiff while acting in his official capacity as judge, no?

No, judges do this all the time.
posted by empath at 9:03 AM on February 28, 2012 [4 favorites]

Judges do this ALL THE TIME. Quoted for truth.
posted by agregoli at 9:12 AM on February 28, 2012 [1 favorite]

You guys are shadowboxing. No one is saying a lecture is per se inappropriate.
posted by BobbyVan at 9:19 AM on February 28, 2012

feel free to link to the textbook. (I'm not holding my breath)

O SNAP! The "links or it didn't happen" defense! About something easily verifiable! Here.

This is blatant intimidation. What's the judge saying, "you're lucky the defendant went so easy on you?"

No.
posted by Hoopo at 9:19 AM on February 28, 2012

For the billionth time, there is absolutely zero evidence supporting your assertion that the sentencing was based on anything but lack of evidence.

I never asserted this. I understand that the case was dismissed for lack of evidence, and perhaps rightfully so. I also understand that this judge went on to give a lecture which explicitly privileges religion, and thus gives the appearance of bias. The latter is a problem even if it was proper to dismiss the case, and even if the dismissal had absolutely nothing to do with bias.

As others have pointed out, we wouldn't even be talking about this if the case had been dismissed with a similar lecture along the lines of "I want you to go home and think about what you might have done to contribute to this, and what you might have done differently to avoid it". Instead it's Islam 101: It's Awesome And Our Founding Fathers Never Intended For You To Offend It.

At the very least, this sort of behavior leads to arguments just like this one ("he must have dismissed the case because he hates atheists, cotton candy, and puppies!" "nuh-uh, it was a fair trial!") Both the victim and the judge have gotten threats over this -- since when is that the desired outcome of a minor trial?
posted by vorfeed at 9:45 AM on February 28, 2012 [1 favorite]

Huh? I saw many people being upset about the judge lecturing the victim. And the content isn't unusual either. So pointing out that its common (which people don't seem to know - I guess they don't read court transcripts all day) is perfectly on topic.
posted by agregoli at 9:45 AM on February 28, 2012 [1 favorite]

I would say bad, breathless "reporting" is what is causing distress and threats. That ain't the court's fault.
posted by agregoli at 9:47 AM on February 28, 2012 [3 favorites]

Judges don't like it when you waste the courts time, and this whole case was a textbook example of 'wasting the court's time'.
posted by empath at 9:51 AM on February 28, 2012 [5 favorites]

I would say bad, breathless "reporting" is what is causing distress and threats. That ain't the court's fault.

I'm having trouble imagining the kind of "reporting" of the judge's lecture which would not have led to distress... other than "none".
posted by vorfeed at 10:18 AM on February 28, 2012

"Now, there is some 'parsing' going on where people basically make the argument that 'well, he didn't specifically say X or Y', therefore you can't claim he did. But that's also kind of ridiculous. You can make a statement that's perfectly legal on paper, but is obviously intended to intimidate someone. It also makes it seem like he may have dismissed the case because he didn't like the guy, rather then a real lack of evidence. "

No, it doesn't. Think about things in order, rather than starting with a conclusion and reasoning backwards: There is absolutely no legal evidence of harassment. The case is RIGHTLY dismissed. The judicial system is supposed to be biased in favor of defendants, and worked exactly right here.

Now, given the lack of evidence, the presumption of innocence, and the entirely reasonable dismissal, does it make sense to infer another ulterior motive for dismissal from the judge's speech? No, no it does not, as such a reason is both superfluous and takes a tortured reading to find in which the literal words of the judge's decision are less important than some asserted implied reasoning.

So, you're talking bullshit, Delmoi, and contorting yourself to do so.

Keep in mind, it wouldn't have been this guy's decision to prosecute. The police decided to arrest this guy, and the prosecutors decided to prosecute him. The victim wasn't suing him in civil court, or something this was a criminal proceeding."

In most states, if an arrest has occurred, you have the right to press or dismiss charges. You can even press charges when the prosecutor is telling you that you don't have a good case.

And in pressing these charges, Zombie Mohammed did at least as much, if not more, real harm to the Irate Muslim as the Irate Muslim may have done to him, in forcing the IM to defend himself against a spurious charge.

Finally, and this seems to keep slipping through the cracks: ZM has misrepresented what the judge said again and again. He is not a credible witness, and is just as likely to have misrepresented what actually occurred, presaging the ultimate dismissal.
posted by klangklangston at 10:23 AM on February 28, 2012 [3 favorites]

Now this is interesting. Mark Martin is a Magisterial Court judge.

Apparently in Pennsylvania, "Magisterial Court" judges aren't required to be members of the bar. The only legal training required, apparently, is a four-week course.

"Magisterial District Judges, Arraignment Court Magistrates and Judges of the Philadelphia Traffic Court who are not members of the bar of this Commonwealth shall complete a course of training and instruction in the duties of their respective offices and pass an examination prior to assuming office." Judicial Code (42 Pa C.S.A. §3112)

"Judges of the Traffic Court in the City of Philadelphia and justices of the peace shall be members of the bar of the Supreme Court or shall complete a course of training and instruction in the duties of their respective offices and pass an examination prior to assuming office. Such courses and examinations shall be as provided by law." Constitution of Pennsylvania (Article V, §12b)

Individuals who are not members of the Pennsylvania Bar seeking to hold the office of Magisterial District Judge, Philadelphia Traffic Court Judge or Philadelphia Arraignment Court Magistrate must be certified prior to assuming office.

The deadline to register for the June 4 - 29, 2012 certification training is Friday, May 4, 2012.

Now I still think this "judge" is an idiot with a seriously warped concept of the First Amendment, but I'm willing to him some slack, since it's quite possible that he hasn't seriously studied the US Constitution in the first place.
posted by BobbyVan at 11:26 AM on February 28, 2012

I'm having trouble imagining the kind of "reporting"is of the judge's lecture which would not have led to distress...other tnan "none."

It doesn't bother all of us. You can't imagine if it was presented without all the dramatic misreading of the facts? I'm sure we wouldn't be hearing about it, yes, because its a non-story. Feeling wronged and being legally wronged are two very different things.
posted by agregoli at 11:27 AM on February 28, 2012 [1 favorite]

It doesn't bother all of us. You can't imagine if it was presented without all the dramatic misreading of the facts?

This judge told an atheist that he was "way outside your bounds of first amendment rights" in dressing like Muhammed and carrying an "offensive" sign, and he has stood by that since ("with rights come responsibilities" is a classic way to dodge the First Amendment's protection of anti-religious speech). Many people are obviously bothered by that, misreading-of-the-facts or not... and it doesn't take "all of us" to cause distress.
posted by vorfeed at 12:09 PM on February 28, 2012 [1 favorite]

Still...what impact does this have, beyond your distress?
posted by agregoli at 12:13 PM on February 28, 2012

Still...what impact does this have, beyond your distress?

What impact did Zombie Muhammad's costume have, beyond one man's distress? Yet the judge clearly believes that actions like his effect the standing of the First Amendment ("The more that people abuse our rights, the more likely that we’re going to lose them.") Likewise, I believe actions like his effect the standing of the First Amendment. If this "It's a right, it's not a privilege [...] with rights come responsibilities" idea becomes the dominant interpretation of the First Amendment, de-facto or otherwise, many Americans stand to lose the right to express their beliefs (or lack thereof).

Maybe that doesn't bother you, but it does me. The Supreme Court has made it clear again and again that the right to religious expression does NOT "come with responsibilities". It is unalienable and belongs to every single one of us, whether others think we are "responsible" with it or not. If not for this principle we might well have banned Catholicism in the 1850s, and it makes me sick to see it attacked by a judge who should damned well know better.
posted by vorfeed at 12:48 PM on February 28, 2012 [2 favorites]

But...what IMPACT do his words have on law? He didn't include those thought or words in his decision. So I'm not undersanding why you feel he's dismantling people's rights.

And just because I'm saying this isn't important, please don't accuse me of not caring about the 1st Amendment. I never said that, and that's unfair of you to imply.
posted by agregoli at 1:22 PM on February 28, 2012 [2 favorites]

But...what IMPACT do his words have on law? He didn't include those thought or words in his decision. So I'm not undersanding why you feel he's dismantling people's rights.

This judge has told at least one person in his district that his religious expression is "way outside your bounds of first amendment rights" -- and this person still lives in his district, so he may be afraid that he (and everyone else in the district) won't get a fair trial if something like this happens again. Even if this isn't an accurate fear, it may still have a chilling effect. He's getting threats, too, up to and including death threats, so it may actually happen again. And the judge is in the media pushing the idea that "with rights come responsibilities"... an idea which may very well impact the law if it continues to gain traction.

Besides, "the law" is not just a collection of words on paper. It's also cops and judges and lawyers, all of whom have some degree of power over others. The idea that they may be using it to discourage legal religious expression is anathema to me, whether it's "included in the decision" or not. Religious discrimination is not any less harmful or less effective when it's unofficial. In fact, it can be worse, because it's all wink-wink-nudge-nudge-you-have-the-right-but..., and there's rarely a way to fight it from within the system. It can even be difficult to get people to acknowledge that it's a problem.

This guy was threatened with contempt charges for releasing this recording, yet you still won't believe that what happened to him matters. That alone suggests to me that it does matter.
posted by vorfeed at 2:14 PM on February 28, 2012 [1 favorite]

The beauty of free speech is that it allows people - even judges - speak freely. Even against free speech, if they so desire.
posted by Dysk at 2:22 PM on February 28, 2012

religious expression ... Religious discrimination

Wait, I've been skimming a bit... you're referring to Perce here, right? ZM's religion is making fun other people's religion? Parading down the street yelling offensive shit with your iphone out hoping that someone will confront you so you can make spurious assault charges and post lies on the internet is a spiritual ritual to this guy? Wow.
posted by Dano St at 2:47 PM on February 28, 2012 [1 favorite]

The beauty of free speech is that it allows people - even judges - speak freely. Even against free speech, if they so desire.

There's a teensy tiny itty bitty problem with this argument: judges are government officials whose job it is to protect the constitutional rights of citizens. I'm don't think anyone here has suggested Martin didn't have the 1st Amendment right to speak his mind. The problem is that if Martin doesn't understand or respect the 1st Amendment, he has no business serving as a judge.
posted by BobbyVan at 2:53 PM on February 28, 2012

This guy was threatened with contempt charges for releasing this recording, yet you still won't believe that what happened to him matters. That alone suggests to me that it does matter.

No, the guy antagonized the judge, who then (reasonably IMO) pointed out that if he broke the rules of the courts by making an unauthorized recording he could be held in contempt of court. Which is, y'know, the point of said rules. And with good reason, too, since the judge's words were manipulated to present a false picture.
posted by zombieflanders at 2:54 PM on February 28, 2012 [2 favorites]

No, the guy antagonized the judge, who then (reasonably IMO) pointed out that if he broke the rules of the courts by making an unauthorized recording he could be held in contempt of court. Which is, y'know, the point of said rules. And with good reason, too, since the judge's words were manipulated to present a false picture.

Wow. A judge shits on the First Amendment and you criticize the citizen who records his remarks. So much for the disinfectant qualities of transparency.

Also, this is about the third time that you've said that the tape was "manipulated" or "tampered with." Please provide evidence or retract.

I listened to key portions of the tape and thought the transcript was an accurate reflection of what I heard. Even the part about the judge saying he was a Muslim (in retrospect, it appears the judge was role playing when he made the comment).
posted by BobbyVan at 3:04 PM on February 28, 2012 [1 favorite]

The beauty of free speech is that it allows people - even judges - speak freely. Even against free speech, if they so desire.

And the rest of us are equally free to speak against them.

Wait, I've been skimming a bit... you're referring to Perce here, right? ZM's religion is making fun other people's religion? Parading down the street yelling offensive shit with your iphone out hoping that someone will confront you so you can make spurious assault charges and post lies on the internet is a spiritual ritual to this guy? Wow.

The idea that blasphemy, mockery of religion, anti-theism, etc. are protected forms of religious expression is long-established in US law.
posted by vorfeed at 3:06 PM on February 28, 2012 [2 favorites]

This guy was threatened with contempt charges for releasing this recording, yet you still won't believe that what happened to him matters.

Somewhere in this thread I'm pretty sure it was explained that it against the rules of criminal procedure to release unauthorized recordings.

if Martin doesn't understand or respect the 1st Amendment, he has no business serving as a judge.

I'm not entirely convinced that it's the case he doesn't understand or respect the 1st Amendment, but you obviously are. I honestly don't understand why he is choosing to harp on the "responsibilities" angle at this point, but this is not an indication he doesn't understand or respect the 1st Amendment. He's said things that make a lot of sense to me in terms of freedom of speech. He has upheld all of his freedom of speech rights. He said that slagging Mohammed in a public parade was a deliberately shitty thing to do, explained why, and explained why he's actually made a number of factual errors about the Koran on top of that.

Please provide evidence or retract.

Perce says as much in the text of his own youtube video.
posted by Hoopo at 3:11 PM on February 28, 2012 [1 favorite]

Wow. A judge shits on the First Amendment and you criticize the citizen who records his remarks. So much for the disinfectant qualities of transparency.

Oh, for crissakes, get over yourself and stop trying to paint me as fascist. I know you're deep into this narrative of the judge and anyone who defends him as opponents of liberty, but it's getting tiresome.

Also, this is about the third time that you've said that the tape was "manipulated" or "tampered with." Please provide evidence or retract.

I've done so at least twice now. You can find it by using any of a number of search functions.

I listened to key portions of the tape and thought the transcript was an accurate reflection of what I heard.

And it never once crossed your mind that (a) omission is a form of tampering/manipulation, or (b) that the fidelity of the recording makes things difficult?

Even the part about the judge saying he was a Muslim (in retrospect, it appears the judge was role playing when he made the comment).

Well, there's a new strategy.
posted by zombieflanders at 3:16 PM on February 28, 2012 [2 favorites]

Somewhere in this thread I'm pretty sure it was explained that it against the rules of criminal procedure to release unauthorized recordings.

Yes. Like I said -- "it's all wink-wink-nudge-nudge-you-have-the-right-but..., and there's rarely a way to fight it from within the system."
posted by vorfeed at 3:18 PM on February 28, 2012

the fact that there's a law about releasing unauthorized recordings is wink-wink-nudge-but? I don't think I understand what you're saying. From what I've read it's not like there's a gag order on the court records. The official ones come out within 10 days or something.
posted by Hoopo at 3:26 PM on February 28, 2012

actually I don't know--he says it's a court "not of record", so I'm not sure what sort of records are actually kept. But I don't trust this guy Perce to give an accurate account of this incident, and I don't trust his edited recording. You do. So we're kind of at an impasse.

Man, some atheists make me want to join a church.
posted by Hoopo at 4:02 PM on February 28, 2012 [2 favorites]

The problem is that if Martin doesn't understand or respect the 1st Amendment, he has no business serving as a judge.

That's the real thing here, and if everyone takes a moment and thinks about it, then I think a lot of the apparent disagreement will resolve itself.

It's not that the Judge made this comment or that ruling. It's that the judge is a fucking nitwit, without even a Civics 101 understanding about how things are setup to work in this country.

It's EMBARRASSING to everyone that this doofus is a Judge in even the most trivial of courts, one of these magistrates courts setup to handle traffic tickets so real courts can get on with the important business of misdemeanors and felonies.

What went wrong here was the harassment ticket instead of a real charge. So, if you're going to be a douchebag, make sure someone punches you in the face before calling a cop, that way the cop will file a real felony assault charge and you won't have to deal with Judges-that-haven't-been-to-law-school...
posted by mikelieman at 4:13 PM on February 28, 2012 [1 favorite]

Wow. A judge shits on the First Amendment and you criticize the citizen who records his remarks. So much for the disinfectant qualities of transparency.

One can have a different opinion from you about the scope and applicability of the first amendment in a particular context without taking a shit upon it.

Also, this is about the third time that you've said that the tape was "manipulated" or "tampered with." Please provide evidence or retract.

You can hear gaps in the recording, most notably around 4:45 where there's an abrupt switch from prosecutor's questioning of Perce to Defence Counsel's questioning, without any handoff or greeting. There's a noticeable break in the audio; this may be nothing more than an accidental interruption of the recording but it's hard to know how much is missing or what that content concerned. Likewise, discussion about the admissibility or exclusion of Perce's video and third-party witness testimony seems to be absent. I don't feel like listening through the whole 40 minutes of it again to catalog every break or inconsistency.

I listened to key portions of the tape and thought the transcript was an accurate reflection of what I heard. Even the part about the judge saying he was a Muslim (in retrospect, it appears the judge was role playing when he made the comment).

This might have something to do with the distinctive red highlighting of the scrolling supertitles, of course, even though conflicting audio-visual stimuli are known to be resolved in favor of the visual in other contexts. Occam's razor suggests that an inaccurate transcription is a more likely explanation than a sudden unannounced and unexplained adoption of a Muslim role by someone who is not only not Muslim, but has done 3 years of combat tours in Afghanistan and Iraq. I suggest you try playing the audio minus the visuals to some disinterested person, or failing that set it playing and minimize the window so that you're not reading Perce's 'explanations' of what's going on.

Yes. Like I said -- "it's all wink-wink-nudge-nudge-you-have-the-right-but..., and there's rarely a way to fight it from within the system."

Actually you don't have any such right in PA, most likely because of the potential for misrepresentation of the proceedings by editing the recording. Different states have different rules, there is no nationwide standard on such things.
posted by anigbrowl at 4:21 PM on February 28, 2012 [2 favorites]

Judges don't like it when you waste the courts time, and this whole case was a textbook example of 'wasting the court's time'.

So, whose fault was that exactly? The prosecutor's?
posted by amorphatist at 4:26 PM on February 28, 2012

Judges don't like it when you waste the courts time, and this whole case was a textbook example of 'wasting the court's time'.

Yet they spend all their time locking up non-violent drug offenders...
posted by mikelieman at 4:37 PM on February 28, 2012

Actually you don't have any such right in PA, most likely because of the potential for misrepresentation of the proceedings by editing the recording. Different states have different rules, there is no nationwide standard on such things.

I was referring to the right to dress up as Muhammed and carry a sign, not the right to record the proceedings. Stuff like "you have that right, but you're way outside your bounds of first amendment rights" and "our forefathers intended to use the First Amendment so we can speak with our mind, not to piss off other people and cultures" is a classic way to acknowledge the First Amendment while still managing to suggest that "offensive" speech lies "outside" the right.
posted by vorfeed at 4:41 PM on February 28, 2012 [1 favorite]

Yet they spend all their time locking up non-violent drug offenders...

It's not like courts write the drug laws, now is it? Most judges would likely jump for joy if those were taken off the books, but until they are they have little choice but to implement them as written.
posted by anigbrowl at 4:43 PM on February 28, 2012 [1 favorite]

One can have a different opinion from you about the scope and applicability of the first amendment in a particular context without taking a shit upon it.

I think telling a man allegedly victimized for expressing an opinion that his opinion is wrong and unworthy of the First Amendment qualifies as shitting upon the First Amendment.
You can hear gaps in the recording, most notably around 4:45 where there's an abrupt switch from prosecutor's questioning of Perce to Defence Counsel's questioning, without any handoff or greeting. There's a noticeable break in the audio; this may be nothing more than an accidental interruption of the recording but it's hard to know how much is missing or what that content concerned. Likewise, discussion about the admissibility or exclusion of Perce's video and third-party witness testimony seems to be absent. I don't feel like listening through the whole 40 minutes of it again to catalog every break or inconsistency.

And it never once crossed your mind that (a) omission is a form of tampering/manipulation, or (b) that the fidelity of the recording makes things difficult?
This business about tampering is a lame diversion. The judge gave a long response in which he could have challenged the content of the transcript or recording; all he did was say that he was not a Muslim (as the recording and transcript originally implied) and quibble over his use of the word "doofus." As Jonathan Turley points out, the judge "does not question the accuracy for those statements on the first amendment."
posted by BobbyVan at 4:57 PM on February 28, 2012

It's not like courts write the drug laws, now is it? Most judges would likely jump for joy if those were taken off the books, but until they are they have little choice but to implement them as written.

And the cops are oh-so-effective at presenting evidence in *those* cases, too!
posted by mikelieman at 4:57 PM on February 28, 2012

This guy was threatened with contempt charges for releasing this recording, yet you still won't believe that what happened to him matters. That alone suggests to me that it does matter.

Well, the courts didn't find enough evidence of something happening to him to do anything about it. If there was a crime here, that's a shame, but the court can't do much about that. As for being told whatever by a judge outside of a legal decision...well, we disagree on exactly what impact that has - you seem to be subscribing to the butterfly flaps its wings and we all have no 1st Amendment Rights - I see it as a judge spouting off like they enjoy doing. Shrug. Agree to disagree, I guess.

But hell yes he should have been threatened with contempt for secretly taping a court. He should have realized how stupid a move that is. Not to mention that there's a freaking COURT REPORTER taking it all down. No tape recordings necessary.
posted by agregoli at 4:57 PM on February 28, 2012 [1 favorite]

I don't know if there's a court reporter in a Magistrate's Court. They're pretty low-level for that kind of an expense...
posted by mikelieman at 4:59 PM on February 28, 2012 [1 favorite]

Oh whoops - if that's the case, my bad. I'm not that familiar with Magistrate's court.
posted by agregoli at 5:03 PM on February 28, 2012

"This business about tampering is a lame diversion. The judge gave a long response in which he could have challenged the content of the transcript or recording; all he did was say that he was not a Muslim (as the recording and transcript originally implied) and quibble over his use of the word "doofus." As Jonathan Turley points out, the judge "does not question the accuracy for those statements on the first amendment.""

Dude, can you stick to one argument at a time? The reason that the tampering came up is because ZM alleges that the judge threatened him with contempt. What really happened is that the judge said that releasing an unauthorized recording is grounds for being found in contempt.

The Zombie Mohammed guy is full of bullshit on this.

"I was referring to the right to dress up as Muhammed and carry a sign, not the right to record the proceedings. Stuff like "you have that right, but you're way outside your bounds of first amendment rights" and "our forefathers intended to use the First Amendment so we can speak with our mind, not to piss off other people and cultures" is a classic way to acknowledge the First Amendment while still managing to suggest that "offensive" speech lies "outside" the right."

That requires ignoring the plain text of what was said in favor of complaining about some phantom infringement of first amendment rights by a third party.

Zombie Mohammed acted like a dick, which is his right. ZM alleges — but cannot support with evidence — that he was harassed for acting like a dick. It is entirely within the purview of the judge to note that as the altercation with the irate Muslim did not rise to the level of something that the state can legitimately restrain — for good reason — that if the ZM would like to avoid altercations like that in the future, he should avoid acting like a dick.

I mean, I realize that you've already committed yourself to bending over backwards to absolve the ZM of any responsibility for his actions, but all this blovation about the first amendment being under attack because at some point ZM might not go out of his way to be a dick and recognizes the limits of criminal prosecution is unmitigated and unsupported fantasy, and the sooner you stop choosing to die on this hill, the sooner everyone can get back to ignoring this tempest in a teapot.
posted by klangklangston at 5:30 PM on February 28, 2012 [1 favorite]

I was referring to the right to dress up as Muhammed and carry a sign, not the right to record the proceedings.

Oh I see, my bad.

Stuff like "you have that right, but you're way outside your bounds of first amendment rights" and "our forefathers intended to use the First Amendment so we can speak with our mind, not to piss off other people and cultures" is a classic way to acknowledge the First Amendment while still managing to suggest that "offensive" speech lies "outside" the right.

I think his issue is less with speech than the context in which it is made - the classic example being the significance of shouting 'fire' inside a crowded theater, where the foreseeably dangerous consequences outweigh any arguable expressive value. As far as protection from government interference with the content of public speech goes, the 1A is almost absolute. On the other hand:

Freedom of speech means the government has to protect you while you're freely speaking.

...as claimed above, is specious nonsense. Some people seem to think that protection from government interference is the same thing as protection from interference by the government (over and above the normal protection of the law from criminality). The liberty interest a person has in the free expression of their ideas has to be balanced with the liberty interest other people have in being able to go about their business freely, which is why you can't just run around screaming in people's faces and then excuse it by saying you were exercising your first amendment freedoms. As a practical example, consider laws requiring protesters outside abortion clinics to observe a 'buffer zone' and abstain from impeding the progress of people who may wish to go to the clinic. The opinion that abortion is wrong is definitely protected speech addressed to a matter of public concern, but the full expression of that (along with free assembly and related issues) can constitutionally be curtailed in order to safeguard the equally important liberty interest of people who wish to walk past, into, or out of such clinics without being surrounded by angry protesters. Likewise, government can punish but not necessarily pre-empt unjustifiable hostile responses to obnoxious speech.
posted by anigbrowl at 5:35 PM on February 28, 2012 [3 favorites]

I think his issue is less with speech than the context in which it is made - the classic example being the significance of shouting 'fire' inside a crowded theater, where the foreseeably dangerous consequences outweigh any arguable expressive value.

The speech in question was made in the context of a Halloween parade. It is difficult to even conceive of a context which is less "yelling fire in a theater" than that.

It is entirely within the purview of the judge to note that as the altercation with the irate Muslim did not rise to the level of something that the state can legitimately restrain — for good reason — that if the ZM would like to avoid altercations like that in the future, he should avoid acting like a dick.

This is why I mentioned above that the judge could have just as easily told the guy to go home and consider whether he'd done anything to contribute to this problem. This could very easily have been handled without privileging religion, and the fact that the judge didn't do so is a problem.
posted by vorfeed at 5:50 PM on February 28, 2012

He didn't privilege religion. He said that if you don't know basic facts of the religion you're criticizing, you risk coming off like a dufus.

Given that Zombie Mohammed did, in fact, come off as a dufus, seems to back that particular bit of dictum quite well.
posted by klangklangston at 6:10 PM on February 28, 2012

Giving someone a lecture about how important Islam is and how offensive it is to insult it (much less suggesting that doing so is "way outside your bounds of First Amendment rights") privileges religion.
posted by vorfeed at 6:33 PM on February 28, 2012 [2 favorites]

That's your unsupported opinion.
posted by klangklangston at 6:54 PM on February 28, 2012

So's yours.
posted by vorfeed at 6:57 PM on February 28, 2012

Giving someone a lecture about how important Islam is and how offensive it is to insult it

How it important it is? To Muslims? Like as in "hey man, religion is really important to people who follow it and insulting it is shitty, plus your facts are all wrong, but the guy had no right to touch you"? Cuz that's what happened.

suggesting that doing so is "way outside your bounds of First Amendment rights"

I'm not so ready to run with this line as you guys. The first part of that sentence says "you have that right", so I think maybe it's a poorly worded statement, expressing something that I'm not really clear on. I'm not sure how he could say it's not included within the 1st Amendment at the same time that it's your right. Where else would the right to say that come from? The statement is contradicts itself.

privileges religion.

In the sense that a judge saying "it's not really a good thing to call someone a fatty fat fat ugly garbage face" privileges the ugly and overweight. A lecture with no legal consequence privileges nothing. It does not give religion any special entitlement. Insulting people by mocking things they hold dear is shitty. You have a right to say it, but you probably shouldn't. That's all I'm taking from the judge's speech. There is no precedent here. There's no special consideration established for religion stemming from this decision.
posted by Hoopo at 7:14 PM on February 28, 2012 [3 favorites]

Things like "religion is really important to people who follow it and insulting it is shitty" privilege religious people over people who are against religion, including the victim in this case. And being against religion -- up to and including insulting it -- is protected by the First Amendment. You may think that blasphemy is "shitty", but laws against it have been struck down even when they include blasphemy against all religions and deities, precisely because they privilege reverence for religion over irreverence.

I do not agree with the idea that "a lecture with no legal consequence privileges nothing", either. If the judge had told the sign-grabber that his belief that the Prophet should not be mocked was "offensive" and that he "probably shouldn't" express it in public even though he has the right to do so, would that also have privileged nothing? The second prong of the Lemon test has been interpreted to mean that "regardless of its purpose, government action cannot symbolically endorse or disapprove of religion", and I'd say that's a pretty fair guideline for judges to follow. This PDF from the ADL suggests that "in a governmental workplace, some employees effectively represent the government to the public. Consistent with the First Amendment, government employers must ensure that government speech neither endorses nor disparages religion. Thus, if employee speech that endorses or opposes religion would appear to a reasonable observer to be government speech, it must be prohibited."

It's hard to think of a government employee who more effectively represents the government to the public than a judge speaking from the bench. At the very least, lectures like this erode people's trust in the equal protection of religious expression... and for what? To protect (some) people from "offense", or from "looking like doofuses"? Neither of those things are Constitutionally guaranteed.
posted by vorfeed at 8:38 PM on February 28, 2012 [3 favorites]

Saying that religion is important to the followers of religion isn't privileging it any more than saying that team allegiance is important to sports fans. It's a statement of fact.
posted by klangklangston at 9:03 PM on February 28, 2012 [1 favorite]

Saying that religion is important to the followers of religion isn't privileging it any more than saying that team allegiance is important to sports fans. It's a statement of fact.

The problem with the judge's "statement of fact" is the clear implication that the sign-grabber's right to his religion ("their essence, their being") is more important than the victim's right to speak against it ("piss[ing] off other people and cultures").

If the judge merely meant to disapprove of insults against important things in general, he could easily have done so. Instead, he made it crystal clear that religion was the issue. I doubt that such a lecture would have been delivered if this had been about team allegiance.
posted by vorfeed at 9:24 PM on February 28, 2012 [1 favorite]

The judge's comments about crapping on the Prophet are not "privileging religion" in any legal sense so your argument that blasphemy is legal is totally irrelevant. There is no special benefit, immunity from penalty, or exemption from duty granted to Muslims as a class by this speech, you are wrong. He has also not endorsed Islam. The perceived bias in favor of the defendant's right to religion is in your head.
posted by Hoopo at 9:44 PM on February 28, 2012 [1 favorite]

The perceived bias in favor of the defendant's right to religion is in your head.

And in a lot of people's heads, judging by the reaction to this story. Like I said, that's part of the problem -- "lectures like this erode people's trust in the equal protection of religious expression". This judge is not paid to explain the tremendous importance of religion to people, nor to answer the age-old question of whether blasphemy is "shitty". He is paid to keep the peace in a country in which both religion and blasphemy are protected under the First Amendment, and in which people both revere and despise religion.

He utterly failed in that, and he appears to have gone out of his way to do so. I think that matters whether or not "there is special benefit, immunity from penalty, or exemption from duty granted to Muslims as a class by this speech"... and the idea that the appearance of religious bias on the part of government employees doesn't matter unless it rises to that level is in your head. I never claimed that this speech did any such thing -- simply that a judge shouldn't be giving lectures like this, because they can give the impression of religious bias.

If it helps, you can tell yourself that this is because opposing religion is really important to many, and insulting it is shitty.
posted by vorfeed at 10:24 PM on February 28, 2012

"The problem with the judge's "statement of fact" is the clear implication that the sign-grabber's right to his religion ("their essence, their being") is more important than the victim's right to speak against it ("piss[ing] off other people and cultures"). "

That is not the clear implication if you don't beg the question. A more reasonable implication is that just because something is legal doesn't mean it's wise.

"If the judge merely meant to disapprove of insults against important things in general, he could easily have done so. Instead, he made it crystal clear that religion was the issue. I doubt that such a lecture would have been delivered if this had been about team allegiance."

Actually, just because someone mentions religion doesn't mean that religion is the issue. And if a Yankee fan at Fenway park claimed — without a shred of evidence — that a Sox fan was harassing them, the Yank would get a similar lecture.

"And in a lot of people's heads, judging by the reaction to this story."

A lot of people believe the Bible, that doesn't mean it's true.

"Like I said, that's part of the problem -- "lectures like this erode people's trust in the equal protection of religious expression"."

Like I said, you're begging the question. You're arguing that it erodes public trust in the impartiality of the judiciary by asserting that it erodes your trust, and the trust of others. But that's not the same thing as showing that this is a legitimate issue of the public trust — simply alluding to the local popularity of a view is not evidence of it being correct.

" He is paid to keep the peace in a country in which both religion and blasphemy are protected under the First Amendment, and in which people both revere and despise religion.

He utterly failed in that, and he appears to have gone out of his way to do so."

Now you're just making shit up because you're upset. Jesus — he utterly failed to keep the peace? Oh, yeah, the Pennsylvania Pious Zombie Riots have been nonstop the last couple of days, haven't they? They're gonna have to call out the National Guard to put down the Muslim menace even now lynching atheists from streetlights.

"If it helps, you can tell yourself that this is because opposing religion is really important to many, and insulting it is shitty."

When will the War on the War on the War on Christmas end? You can't even say, "Fuck your Santa," to the IHOP waitress without being asked to leave anymore.
posted by klangklangston at 11:40 PM on February 28, 2012 [3 favorites]

All in all, I'd say that this thread would make an interesting study in what happens when people confuse constitutionalism for a moral, rather than a legal doctrine.
posted by howfar at 12:41 AM on February 29, 2012

Actually, just because someone mentions religion doesn't mean that religion is the issue. And if a Yankee fan at Fenway park claimed — without a shred of evidence — that a Sox fan was harassing them, the Yank would get a similar lecture.

Let me know the next time a judge says this about insulting Red Sox fans:

And what you’ve done is, you’ve completely trashed their essence, their being. They find it very, very, very offensive... 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.

posted by BobbyVan at 5:40 AM on February 29, 2012 [1 favorite]

If it helps, you can tell yourself that this is because opposing religion is really important to many, and insulting it is shitty.

Who insulted "opposing religion"?
posted by Hoopo at 8:24 AM on February 29, 2012

Who insulted "opposing religion"?

The judge did. He has two people before the court who disagree about whether insulting Muhammed is acceptable. The judge knows that both insulting and revering Muhammed are legal forms of religious expression, to the point where he acknowledges this in his lecture, yet he says that one man's reverence for Muhammed is "their culture, their very essence, their very being", and the other man's insult to Muhammed is legal-but-not-wise (and makes him seem like an "ugly American" and a "doofus").

That's religious bias, because it hinges on the idea that religion is "important" and blasphemy is not (to wit, that it's "offensive"). Again, this is not just a secular distinction based on civility or a general sense of insult-to-important-things -- this has been made clear by higher courts several times, and the fact that blasphemy is part of a long tradition of opposing religion is part of the reason why.

The same bias is present in statements like "religion is really important to people who follow it and insulting it is shitty". There's a major assumption here about which actions regarding religion are "important" and which are "shitty". You're welcome to it, if that's how you feel, but "shitty" certainly is an insult.
posted by vorfeed at 10:10 AM on February 29, 2012

He said it's offensive to Muslims. Which it is. That is not a religious bias. There is no implication that "blasphemy is not important," whatever the hell that means. He said it's a shame he went out to provoke Muslims, especially based on a flawed premise. Which he did. That is also not a religious bias. Furthermore, he has affirmed the right of Perce to do this, and rebuked the Muslim man for acting against him and for his understanding that insulting Mohammed is illegal. You are hung up on a very strange interpretation of details that are totally immaterial to the decision and to any legal interpretation of the First Amendment. Your point now comes down to "telling people that they are insulting people when they are insulting people is religious bias".
posted by Hoopo at 10:30 AM on February 29, 2012

J: "So why were you dressed as a zombie Mohammed?"

P: "Well because Mohammed supposedly came back from the dead and was therefore a zombie, check the dictionary it says right there that's what a zombie is"

J: "Oh. OK, FYI that's not actually the story. He never came back from the dead. I mean, if you're going to go out and make fun of peoples' religious beliefs, it's worth at least looking into what you're making fun of or you might look like a doofus."

P: "I GOT A RIGHT TO OPPOSE RELIGION"

J: "Yes you do. It's a shame you felt the need to use your first amendment rights to provoke people and piss off other cultures. This cuts deep for Muslims, that's why he was angry. That sign of yours was pretty offensive. It even offends me, but it offended him deeply and he thought what you were doing was illegal. It's not illegal, and he had no right to lay a hand on you, but there's not enough evidence here and I'm dismissing the charges of harassment."

P: "YOU'RE A MUSLIM AND YOU VIOLATED MY FIRST AMENDMENT RIGHTS YOU CAN THROW ME IN JAIL IF YOU WANT BUT I'M POSTING THIS ON YOUTUBE"

J: "Don't put it on youtube, that's actually illegal and it would be contempt of court."

P: "FIRST AMENDMENT, BITCHES"

Internet: "THIS IS AN OUTRAGE! MUSLIMS ARE NOW LEGALLY ALLOWED TO CUT OUR HEADS OFF!"
posted by Hoopo at 11:06 AM on February 29, 2012 [9 favorites]

Furthermore, he has affirmed the right of Perce to do this, and rebuked the Muslim man for acting against him and for his understanding that insulting Mohammed is illegal.

If the judge "rebuked" the defendant, I must have missed it. Can you point to some evidence of that?
posted by BobbyVan at 11:11 AM on February 29, 2012

Your point now comes down to "telling people that they are insulting people when they are insulting people is religious bias".

The reason why blasphemy is "insulting people" is religious. Again, this was made clear by the United States district court in Pennsylvania not two years ago -- it's not just my opinion.

This guy's sign or outfit did not insult this Muslim, or even Muslims in general. It insulted Muhammed, and insulting Muhammed is a religious statement. And yes, telling people that their religious statements are "unfortunate" and "[not] what our forefathers intended" because they "piss off other people and cultures" -- complete with an "ugly American" lecture about how important other people and cultures are -- involves religious bias.

Plenty of religious things piss off other people and cultures, up to and including the insistence that Muhammed cannot be insulted.
posted by vorfeed at 11:22 AM on February 29, 2012

Do you think his intent was to actually insult the long deceased prophet of Islam (peace be upon him), or to get a rise out of people who, you know, saw his outfit?

Since the Zombie Muhammed was accompanied by a Zombie Pope, I think it's clear that his intent was to insult and provoke followers of major world religions in general. But this leads me to another interesting comment by the judge:

I don’t think you’re aware, Sir, there’s a big difference between how Americans practice Christianity – I understand you’re an atheist – but see Islam is not just a religion. It’s their culture, their culture, their very essence, their very being.

...

And what you’ve done is, you’ve completely trashed their essence, their being. They find it very, very, very offensive... 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.

Essentially, the judge is arguing that Muslims are more sensitive (“they find it very, very, very offensive”) to criticism or mockery than Christians because for Muslims, Islam is “their culture, their very essence, their very being.” In fact, according to the judge, such mocking behavior so offends Muslims as to make the mocking behavior “outside [the] bounds of First Amendment rights.” So what we have here is something even worse than religion in general being privileged; we have the Islamic faith and culture being privileged over Christianity.
posted by BobbyVan at 11:41 AM on February 29, 2012

This is a turning into a Metafilter classic of dumb, pointless arguing about something that's never going to get settled to anyone's satisfaction. I am amazed that I personally have taken so small a role; I'm more of a dick than any of you guys.
posted by howfar at 11:58 AM on February 29, 2012

"That's religious bias, because it hinges on the idea that religion is "important" and blasphemy is not (to wit, that it's "offensive"). Again, this is not just a secular distinction based on civility or a general sense of insult-to-important-things -- this has been made clear by higher courts several times, and the fact that blasphemy is part of a long tradition of opposing religion is part of the reason why."

If A does not equal B, that doesn't mean that Not B equals A.

But it seems that you're arguing that Zombie Mohammed was wise to mock Muslim beliefs, right? That this was a great move, and one that exemplifies the civility of atheists and their relative knowledge of religious dogma?

Again, the best analogy to this would be a Yankees fan at Fenway trying to turn getting a beer dumped on him into a criminal case and getting told by the judge that there's no legal evidence for that charge, and also maybe wearing the "Boston Red Sux" shirt wasn't the best way to endear himself to the crowd.

You can't demonstrate any actual harm, your pleadings on how this privileges religion are self-serving and fallacious, and your case affirming blasphemy deals with a prior restraint by the government on religious or blasphemous grounds, which is a good decision but irrelevant here as none of the same issues outside the word blasphemy recur: the parties, cause and reasoning are all different from this case.

Fundamentally, you have to either be honest and argue that you believe Zombie Mohammed's actions were a good idea, in which it's reasonable for people to disagree, or you can continue to cling to a slight less substantial than baby's breath, putting you in the company of Bill O'Reilly and Ann Coulter in terms of inventing threats to panic about.
posted by klangklangston at 12:19 PM on February 29, 2012 [1 favorite]

and also maybe wearing the "Boston Red Sux" shirt wasn't the best way to endear himself to the crowd.

For your analogy to hold, you also have to believe that it's "outside [the] bounds of First Amendment rights" to wear a Boston Red Sux shirt at Fenway Park.

Fundamentally, you have to either be honest and argue that you believe Zombie Mohammed's actions were a good idea, in which it's reasonable for people to disagree

How is prudence or propriety relevant here? Zombie Mohammed was marching in a Halloween parade, where irreverence is kind of the point. The judge should have dressed down the defendant and explained to him that although he sympathizes with the offense he took as a Muslim, in American culture it's not illegal to mock "the Prophet" and he'll have to learn to tolerate doofuses like everyone else.

This is a turning into a Metafilter classic of dumb, pointless arguing about something that's never going to get settled to anyone's satisfaction. I am amazed that I personally have taken so small a role; I'm more of a dick than any of you guys.

Man, you're right. This has been blown way out of proportion. The "judge" is clearly a moron who has probably received only a few weeks of state-administered legal training. He's not a threat to the First Amendment, except maybe to those in Mechanicsburg who have the misfortune of going before him. That said, I am genuinely surprised at how far people have gone in defending him.
posted by BobbyVan at 2:46 PM on February 29, 2012

I'm more of a dick than any of you guys.

Man, you're right.

You ol' honey-tongue.
posted by howfar at 2:50 PM on February 29, 2012 [1 favorite]

But it seems that you're arguing that Zombie Mohammed was wise to mock Muslim beliefs, right? That this was a great move, and one that exemplifies the civility of atheists and their relative knowledge of religious dogma?

I really don't care whether someone else's clothing choices are "wise" or a "good idea" or not -- that's for them to decide, not me and not a judge. Nor do I value civility over free expression. I think this sort of oh-but-you-shouldn't-have-been-wearing-or-doing-that-in-public victim-blaming is unfair nonsense. Actions sometimes have negative social consequences, yes, but that does not necessarily mean that they deserve negative social consequences, and to me that's what "this and that is unwise" implies. The idea that everyone has a duty to "endear himself to the crowd" seems faintly ridiculous to me.

As does the idea that a judge can lecture people about how "unwise" it is to disrespect religion without involving religious bias. Religion is not a snake or a rabid dog or an avalanche area; it does not inevitably hurt those who disrespect it. Human beings must choose to do this to other human beings, and perpetuating the idea that they're justified in doing so leads to tremendous actual harm. The Founding Fathers came from a place where insults to religion were considered unwise at the very least, and they decided that we're not going to play that game anymore. Two hundred years later, it's been quite firmly established that insulting religion is not unwise in America, and I spit on the idea that it ever should be. You want to talk about civility? How about equal respect for everyone's right to express religious ideas, not just the "wise" ones?

I mean, if we're really opening that door, then I would submit that revering Muhammed to the point where you're willing to get in a screaming-and-possibly-pushing argument with someone in a Halloween parade is very unwise, particularly since Islam is not the dominant religion in this country. I'm sure this could've failed to endear this man to the crowd. Perhaps the judge should have, you know, given him a helpful little lecture about how he should've kept his "very, very, very offensive" beliefs about the Prophet to himself, because they kinda made him look like a...?

You see where this goes. It's a chickenshit way to get around the First Amendment, and it's chickenshit no matter who's on the receiving end of it.
posted by vorfeed at 3:12 PM on February 29, 2012 [4 favorites]

He's not a threat to the First Amendment, except maybe to those in Mechanicsburg who have the misfortune of going before him.

He's going to give them a double secret lecturing!
posted by Hoopo at 3:20 PM on February 29, 2012

The judge should have dressed down the defendant and explained to him that although he sympathizes with the offense he took as a Muslim, in American culture it's not illegal to mock "the Prophet"

I think he did say it's not illegal in America to mock Mohammed, right after he said that the defendant thought it was illegal. I could be mistaken but my recollection from the recording was that it was actually the defendant that called the police.

I would submit that revering Muhammed to the point where you're willing to get in a screaming-and-possibly-pushing argument with someone in a Halloween parade is very unwise, particularly since Islam is not the dominant religion in this country. I'm sure this could've failed to endear this man to the crowd.

I know, right? You might get arrested for something like that!
posted by Hoopo at 3:42 PM on February 29, 2012 [1 favorite]

You see where this goes. It's a chickenshit way to get around the First Amendment, and it's chickenshit no matter who's on the receiving end of it.

How did the judge get around the First Amendment? He didn't DO anything except lecture the guy. These same wild accusations keep coming up. His lecture didn't have any legal effect. If you can prove that this judge makes similar attitudes a part of legal decisions, I would be potentially concerned. This? Nothing to worry about, period.
posted by agregoli at 4:27 PM on February 29, 2012

He's going to give them a double secret lecturing!

How did the judge get around the First Amendment? He didn't DO anything except lecture the guy.

Yeah, a government official - a judge no less - telling a citizen not to mock Islam because doing so is "outside [the] bounds of First Amendment rights" is just a simple lecture.
posted by BobbyVan at 4:34 PM on February 29, 2012

It was. He did it from a position of authority, as a judge, yes. But he didn't use his authority to do anything but give a lecture. Law = unharmed.
posted by agregoli at 4:52 PM on February 29, 2012 [1 favorite]

Ever hear of something called "intimidation"?
posted by BobbyVan at 5:02 PM on February 29, 2012

Ok, now I'm laughing! I'm out, peace.
posted by agregoli at 5:07 PM on February 29, 2012 [1 favorite]

I'm glad you're so nonplussed by judges telling citizens, falsely, they don't have certain rights. I find it disturbing that you "work in appeals."
posted by BobbyVan at 5:35 PM on February 29, 2012

"For your analogy to hold, you also have to believe that it's "outside [the] bounds of First Amendment rights" to wear a Boston Red Sux shirt at Fenway Park."

Actually, it is. Fenway could restrict private expression any way they liked; they have a right to throw people out for expressing any viewpoint the BoSox don't like. That's not really the sense that the judge meant it in, but since it's a pretty incoherent statement to say, contra your repeated selective quoting, that someone has the right to do something but it's out of bounds for that right, so that I don't feel bad about leveling the pedantry playing field.

"How is prudence or propriety relevant here?"

I'm not sure why you're introducing those words if you don't feel they're relevant.

But to give a little anecdote, my friends have an in joke that I think I is applicable. The phrase is, "You don't slam your dick in an oven," and is the reply to someone doing something stupid and then being upset with the consequences. If you slam your dick in an oven — even though that may be your right — you can't complain when someone says, "You know, maybe that wasn't the best idea."

"Zombie Mohammed was marching in a Halloween parade, where irreverence is kind of the point. The judge should have dressed down the defendant and explained to him that although he sympathizes with the offense he took as a Muslim, in American culture it's not illegal to mock "the Prophet" and he'll have to learn to tolerate doofuses like everyone else."

The defendant was told that it's not illegal to mock the prophet, and was told that repeatedly, starting with the fact that the defendant was the one who attempted to call the police over the incident. So, given that what you want to happen has already happened, and that you seem to agree that ZM was a dufus, at this point it seems more that you're frustrated with the inability of the law to perfectly punish those whose guilt you assume.

Again, there's no legal evidence that the Irate Muslim did anything but call the cops. The video has no evidence aside from hearsay, and the representations of ZM have been incredible the entire time. So Irate Muslim was told that he couldn't call the cops, and may have acted like a dick, for which he was arrested — which is no fun at all — and charged, and ultimately had the charges dismissed, much like half the drunk and disorderly arrests in the country, where interrupting the stupid behavior and forcing someone to hire a lawyer is sufficient punishment.

"Man, you're right. This has been blown way out of proportion. The "judge" is clearly a moron who has probably received only a few weeks of state-administered legal training. He's not a threat to the First Amendment, except maybe to those in Mechanicsburg who have the misfortune of going before him. That said, I am genuinely surprised at how far people have gone in defending him."

Ah yes, if you can't make the argument, attack the man. Given that you don't seem to be able to pass muster here with any real understanding of how the legal system functions, maybe that's an unwise tack to take if you hope to not be regarded as a dufus.
posted by klangklangston at 5:42 PM on February 29, 2012 [2 favorites]

I'm sorry, I should stop. This isn't really fair, and because nothing else is likely to happen to judge nor any parties concerned, I've already got pretty much what I want aside from an engraved letter conceding defeat in the argument. I know me being amused is likely to make other people upset, so that's not really fair.
posted by klangklangston at 5:45 PM on February 29, 2012 [1 favorite]

Zombie Mohammed, aka Ernest Pence, is an...interesting individual. Wow. I'm thinking therapy might be more in order than a lecture from a judge.

While I personally would like to see atheism more openly accepted in the U.S., he is hardly the spokesman I'd want for the movement.
posted by misha at 8:37 PM on February 29, 2012 [1 favorite]

Fenway could restrict private expression any way they liked; they have a right to throw people out for expressing any viewpoint the BoSox don't like.

So you've proven your own analogy inadequate to this situation. Well done.

If you slam your dick in an oven — even though that may be your right — you can't complain when someone says, "You know, maybe that wasn't the best idea."

Dressing up as Mohammed in a Halloween parade = "slamming your dick in an oven." Does putting a statue of Jesus Christ in a jar of piss = "slamming your dick in an oven" too? We should all be more careful not to offend people, because "with rights come responsibilities. The more that people abuse our rights, the more likely that we’re going to lose them." Do you really subscribe to this nonsense?

Also interesting how you paraphrase a judge telling a citizen that insulting Islam is "outside [the] bounds of First Amendment rights" to "maybe that wasn't the best idea." I know why you're so desperate to change the judge's words, but we do have a recording and transcript, so why make shit up?

at this point it seems more that you're frustrated with the inability of the law to perfectly punish those whose guilt you assume.

Not really. Just frustrated with idiot judges who falsely tell citizens they don't have certain rights... and Metafilter commenters who think that's OK.
posted by BobbyVan at 4:53 AM on March 1, 2012 [1 favorite]

Dude, cool it with the personal attacks already. I work in appeals, yes, which is why I am nonplussed by this, since it will not affect the law. In any further argument you want to make, please leave me out of it.
posted by agregoli at 8:00 AM on March 1, 2012

Personal attacks? I'm sorry, I thought you'd made an argument that rested on your authority as a person who "works in appeals." A judge might tell you that you "opened the door" to that line of questioning. Trust me, they do it "all the time."
posted by BobbyVan at 8:13 AM on March 1, 2012

Shrug. You won't be convinced, and neither will we, with your hysterically shrill argument. I'm bored with it, on to more productive things.
posted by agregoli at 1:25 PM on March 1, 2012

"with rights come responsibilities. The more that people abuse our rights, the more likely that we’re going to lose them."

For what it's worth, I read this more as 'keep using your legal right, which is there for an important purpose, to act like a dick, and you give ammunition to those who would take it away from us'. While I may be projecting somewhat, I find it really hard to see an endorsement of taking the rights away in the statement, so much as a prediction.
posted by Dysk at 6:14 AM on March 2, 2012

For what it's worth, I read this more as 'keep using your legal right, which is there for an important purpose, to act like a dick, and you give ammunition to those who would take it away from us'. While I may be projecting somewhat, I find it really hard to see an endorsement of taking the rights away in the statement, so much as a prediction.

The problem is that this is a circular, self-fulfilling, and very one-sided prediction. No amount of "using your legal right, which is there for an important purpose, to act like a dick" will "give ammunition to those who would take it away from us" unless we decide that only "important" and "non-dickish" things should be expressed... which is exactly the judge's argument.

Compared to honest-if-"dickish" expression, I think widespread self-censorship of "offensive" ideas is much more likely to lead to a world where people are afraid to express those ideas. Likewise, pushing the envelope tends to help open the door for more "important" expression. This principle has proved true a thousand times over during the last fifty years or so, from Piss Christ to porn to the gay rights movement, and I see little reason to believe that it no longer holds.
posted by vorfeed at 11:35 AM on March 2, 2012

</self-censorship>Shut your shitfucking mouth, asscurtain!*

Hey, being a dick is my sacred right and this is a free forum. And you suck anyway. So does everyone like you. If anybody here doesn't like it and you wanna fight about it, hell, let's meet in MeTa. You'll be in trouble then, boy, lemme tell you want.

And if any mod in MeTa should fail to defend my rights to my satisfaction, it's because they are biased against my kind. It's a fucking outrage, I tell ya. They don't even fucking understand metafilter.

*<self-censorship> I don't really think you're an asscurtain and your mouth is actually quite fetching. In other words, I disagree that this incident is an example of widespread self-censorship or will lead to such. Dude went looking for trouble and found it. That's not Sharia Law; it's common sense.
posted by Dano St at 12:38 PM on March 2, 2012

In other words, I disagree that this incident is an example of widespread self-censorship or will lead to such.

I was referring to the circular logic involved in suggesting that people shouldn't exercise their rights for non-"important" purposes, because doing so somehow endangers those rights. All this does is allow "those who would take our rights away from us" to frame the debate. Why should what they think be so important, especially since they have no power without the idea that we should limit speech according to importance?
posted by vorfeed at 4:51 PM on March 2, 2012

Not so much 'non-important' as those where the import is clearly outweighed by the fact that you're being a dick. This isn't some edge case, this was a wanker looking for a fight.
posted by Dysk at 3:23 AM on March 3, 2012

So substitute "a wanker looking for a fight" above -- it's still the same logic. Plenty of free speech cases involved wankers looking for a fight, and if anything these cases solidified our rights rather than eroding them. The idea that wankery "gives ammunition to those who would take our rights away from us" is only true if the implication that our rights should be limited according to some standard of wankery holds true.

If that implication is not true, and we don't want it to be true, then why should we give it the time of day? If we're just making predictions, then why should wankery be discussed in the context of "what our forefathers intended" and "the more that people abuse our rights, the more likely that we’re going to lose them", rather than the context of "you might get your ass kicked" or "you might end up back in court"? The latter would seem to follow much more directly than the former, and it avoids the entire religious-freedom/free-speech can of worms.
posted by vorfeed at 12:29 PM on March 3, 2012

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