As you might have deduced from reading my writings, I am not a big fan of activist judges.
Many judges are quite good at their jobs and perform the role they are intended to perform, which is exactly analagous to an umpire in baseball. Good judges call pitches and strikes, fair and foul balls, but give not the slightest opinion on how the game is being played.
But then there are characters like the judge in the "Zombie Muhammad" case.
It would be a better world if such judges were reguarly disciplined when they abuse their powers as District Justice Mark Martin did in the case in Mechanicsburg, Pa.
As it now stands, judges have the power to impose their personal philosophies on members of the public without any regard for the right of free speech.
Note at the approximate 30-minute mark of the above video when the judge starts imposing his political views on the victim of an attack by a Muslim who objected to his Halloween costume.
Imagine the victim had informed the judge that he had no intention of listening to the judge's assault on his First Amendment right to express his opinions freely in public.
The victim could be hauled off in handcuffs.
Also note here on the Volokh Conspiracy, where the judge threatened the victim with contempt of court, i.e. possible jail time, for simply placing the above recording on the Internet.
And note where the judge tries to claim that he can prevent the victim from circulating a recording of his diatribe:
"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."
In other words, this judge not only wants to abuse the rights of the people who come before him in court, he wants to be able to punish them for exposing his abuse of their rights.
How do judges get away with this? Simple. The decision on whether to discipline them is left to other judges. And they also wish to increase the power of the judiciary to the furthest extent possible.
Much of the discussion of this case has centered around the judge's statement "I'm a Muslim," which he apparently did not mean literally. But that's not the real problem. The real problem not that he's a Muslim. It's that he's a judge. And he's working in a system that is devoid of the checks and balances that apply to the legislative and judicial branches.
If he had restricted himself to the facts of the case at hand he should have convicted the assailant on the grounds that he quite clearly made some unwanted physical contact with the victim. And he should have told him that as long as he's in the United States he will have to accept that others are free to express thoughts and feeling that conflict with his religious views.
But the real point is that we wouldn't even know about this if the victim had no made that recording. And if the judge asserts that in a free country a citizen is not free to record the utterances of public officials, then it's the judge who should be in jail.
ALSO, the judge is not a Muslim, just a user of what has been termed "the sports subjunctive" (see the comments section here) - mistakenly, according to my favorite language site, "Language Log."
If you want to read an analysis of what the construction the judge was using when he said "I'm a Muslim," go to Geoffrey K. Pullam's piece here.
You will get an analysis that will test your analytical and linguistic skills greatly, believe me.
- Paul Mulshine, The Star Ledger