Court throws out flag-desecration law
Texas law from 1989 is unconstitutional, state appellate judges rule.
In a 6-3 ruling, the Court of Criminal Appeals tossed out a Texas law banning desecration of the flag, saying the attempt to protect revered symbols was too broadly written.
A Texas law banning desecration of the flag is unconstitutional and cannot be enforced, the state’s highest criminal court ruled Wednesday.
In a 6-3 ruling, the Court of Criminal Appeals tossed out the law, saying the attempt to protect revered symbols was too broadly written, criminalizing acts that are protected by the First Amendment’s right to free speech.
The court also rejected arguments that the law should remain on the books because prosecutors know better than to use it in obviously unconstitutional circumstances, such as targeting those who burn flags as part of a protest — a long-acknowledged form of constitutionally protected expression.
“So long as a statute remains on the books, the threat of ‘irresponsible’ use remains,” Presiding Judge Sharon Keller wrote for the majority.
The rarely used, 26-yearold law threatens one year in jail and a $4,000 fine for those who intentionally damage, deface, mutilate or burn the U.S. or Texas flags.
Similar laws have been struck down by the U.S. Supreme Court as improper limitations on the freedom of speech — including a Texas law that was overturned in 1989, prompting the Legislature to immediately pass a revised statute that sat quietly, undis-
turbed by the courts, until now.
The issue before the Texas Court of Criminal Appeals arose from a 2012 incident in Lovelady, about 100 miles north of Houston, when 20-year-old Terence Johnson pulled a U.S. flag from a sidewalk display and threw it into the street, where it was destroyed by passing traffic.
Johnson, who is black, told police that he had acted in anger after being confronted by a racist store clerk. He was arrested for destruction of a flag and spent 4½ weeks in the Houston County Jail until released on bond.
A county court-atlaw judge dismissed the charge six months later, ruling that the state law was unconstitutional.
Prosecutors appealed, arguing that Johnson’s free speech rights were not implicated because he was engaging in destructive behavior, not trying to make a statement.
The 12th Court of Appeals in Tyler, however, ruled that the law could not be enforced because it banned all conduct that threatens the physical integrity of a flag, improperly criminalizing many protected forms of expression, including destroying a flag in protest.
Wednesday’s ruling upheld the Tyler court’s decision.
Court of Criminal Appeals Judge Kevin Yeary, writing in dissent, said the majority mistakenly relied on hypothetical situations to strike down the law because it could infringe on free speech. Johnson, however, was not protected by the First Amendment because he was not trying to express himself when he destroyed the flag, he wrote.
The desecration law “most certainly was applied constitutionally” in Johnson’s case, Yeary said.
Judge Larry Meyers also wrote a dissent arguing that the law was not unconstitutionally broad, saying it “is actually quite specific.”
“It serves to keep people from destroying a symbol of our nation and state, which is exactly what ( Johnson) did here,” Meyers wrote.
Judge David Newell also dissented but did not write an opinion.