Appeals court throws out Texas flag desecration law, saying it violates free speech

By Chuck Lindell
Austin American-Statesman
Originally published Oct. 7, 2015

A Texas law banning desecration of the flag is unconstitutional, the state’s highest criminal court ruled Wednesday.

In a 6-3 ruling, the Court of Criminal Appeals tossed out the law, saying it was too broadly written and criminalized an act that is protected by the First Amendment’s right to free speech.

Apparently rarely used, the 26-year-old 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, undisturbed 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 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-at-law 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 agreed — to a point.

The court said the flag desecration law was properly applied to Johnson. Unlike demonstrators who burn or damage the flag during protests and other constitutionally protected forms of speech, he acted without intending to send a message and without an audience, the judges said.

But none of that mattered, the appeals court added, because the law is unenforceable. By banning all conduct that threatens the physical integrity of a flag, the Texas statute violates the Constitution by improperly criminalizing many protected forms of expression, such as burning a flag in protest, the court said.

Prosecutors appealed again, bringing the case before the Court of Criminal Appeals, where oral arguments were heard one year ago.

Presiding Judge Sharon Keller wrote the majority opinion.

Judge Elsa Alcala joined Keller’s opinion and wrote a separate concurring opinion.

Two judges wrote dissents — Judge Kevin Yeary and Judge Larry Meyers.

The case was Texas v. Terence Johnson, PD-0228-14.