Jayson Jacoby
The Baker City Herald

The term "judicial activism" can be accurately translated, in many cases, to "a judge's decision that I disagree with."

Occasionally, though, the criticism implicit in the term - that a judge has exceeded his or her legitimate authority so as to make a political or personal point - is truly deserved.

Rarely have we come across a better example than a recent court case in Pennsylvania.

The most disturbing thing about District Judge Mark Martin's ruling and subsequent comments to an alleged victim of harassment is that the judge leads us to question whether the First Amendment is quite as robust a treatise as we believed it to be.

Here's what happened:

Last Halloween a self-proclaimed atheist, Ernie Perce, marched in a parade in Mechanisburg, Penn., dressed in a costume depicting the Muslim prophet Mohammed as a zombie.

Perce was accompanied by another atheist who wore a similar costume mimicking the Pope.

A Muslim man, Talaag Elbayomy, was offended by Perce's costume. Elbayomy yelled at Perce and allegedly tried to pull off the fake beard Perce was wearing.

Part of the altercation was captured on video.

Elbayomy was charged with harassment, and the case went to trial.

On Dec. 6 Martin dismissed the charge, concluding that there was insufficient evidence to prove that Elbayomy harassed Perce.

Martin's ruling is curious, considering a police officer allegedly saw the incident and, in effect, corroborated Perce's claim.

But the dismissal of the charge can at least be defended on legal grounds.

Martin's berating of Perce, however, can't be.

The judge said, among other things: "I think our forefathers intended that we use the First Amendment so that we can speak our mind, not to piss off other people and other cultures, which is what you did."

Martin also said, referring to Perce wearing the zombie costume: "You have that right, but you're way outside your bounds of First Amendment rights."

This statement is as much puzzling as it is troubling.

Which right, if not the First Amendment, ensures Perce could wear whatever costume he chooses to don?

Martin's interpretation of the Founding Fathers' intentions also seems to run counter to the historical record.

Jefferson, Paine and their compatriots probably didn't useverb forms such as "piss off" (well, maybe Paine did), but it's pretty clear they considered the right of American citizens to express themselves far more important than whether King George might get upset by the colonists' antics.

In a recent interview with CNN, Martin defended his ruling. In an apparent bid to deflect charges of Islamic bias, the judge, who's a U.S. Army reservist, also said he served three tours of duty in Iraq and Afghanistan where he was "sniped at once, ambushed once, attacked by a mob once."

We don't care whether Martin likes Islam or doesn't.

What we care about is his apparent disregard for the most basic of human freedoms enshrined in the U.S. Constitution.

Martin, during his several-minute scolding, called Perce a "doofus."

We don't disagree.

Comparing Mohammed (and the Pope) to a zombie is a silly stunt which makes no legitimate political or social statement.

But this is one of the great things about America: You're free to act like a doofus, and to engage in silly stunts, including ones that annoy or offend Muslims and Roman Catholics.

Sure someone might laugh at you if you take your escapade to the streets.

Someone might even holler at you.

But so long as you don't break any laws - and no one has even suggested that Perce did - the dressing down shouldn't come from a judge.

Especially a judge who, minutes earlier, said, in effect, that he didn't believe you when you claimed you were harassed.