State v. Johnson
12-12-00425-CR
Case Summary Written by Kathryn Almond, Staff Member.
PRESIDING JUDGE KELLER delivered the opinion of the Court in which JUDGES JOHNSON, KEASLER, HERVEY, ALCALA, and RICHARDSON joined.
While appellee was walking down the street, he jumped up and grabbed a flag and its staff off of a building. He then threw the flag into the street. Appellee was arrested for violation of the Texas flag-destruction statute—Texas Penal Code § 42.11. He explained to police that he had thrown the flag into the street because he was mad. The information alleged appellee did “[i]ntentionally or knowingly damage, deface, or mutilate a flag of the United States by throwing the flag onto the ground/roadway of Highway 19.” Appellee filed a motion to dismiss, claiming that the flag-destruction statute was unconstitutional. The trial court granted the motion reasoning that, under Texas v. Johnson and United States v. Eichman, a statute that criminalizes behavior against a flag is unconstitutional because of the limitations it places on freedom of speech. The judge stated that if acts such as burning a flag are speech then acts such as throwing a flag onto the ground could be speech as well. The State appealed and the court of appeals held that appellee’s conduct was not conduct that implicated the First Amendment; however, the court ruled that the statute was overbroad and, therefore, unconstitutional. The State appealed again.
Issue: Whether the Texas flag-destruction statute is unconstitutionally overbroad.
The Court of Criminal Appeals held that the Texas-flag destruction statute was facially unconstitutional due to its overbreadth and violation of the First Amendment. The court held that a statute could be overbroad even though there is some legitimate application and if the party before the court was not engaged in activity protected by the First Amendment. The court began by stating that Judge Yeary’s dissent incorrectly applied Jaynes v. Commonwealth because that case only allows states to limit or expand standing to challenge the statute rather than applying less stringent standards in overbreadth challenges. Further, the court reasoned here there could be no standing issues because the appellee was charged by the State with a criminal violation and was therefore able to defend himself by claiming that the statute he was charged with violating was unconstitutional.
The court began to address the issue by looking at the text of the statute. The State argued that the statute should be narrowly construed to apply only to conduct that amounts to criminal mischief. The court rejected this construction, reasoning that the language of the statute was too broad to allow such a narrow construction. Moreover, the court reasoned that a statute could be narrowly construed only if the statute is readily susceptible to a narrow construction. Here, the court reasoned that because the statute is unambiguous, a narrow construction could not be employed.
Next, the court addressed whether applications of the statute that implicate and violate the First Amendment were so substantial that the statute must be held invalid on its face. Using the Supreme Court’s decisions in Texas v. Johnson and United States v. Eichman, the court reasoned that the content-based restriction could not be upheld where the First Amendment is implicated and the government is attempting to restrict that conduct merely because society would find that type of conduct offensive or disagreeable. Because of its similarity in wording to the statute in Eichman, the court reasoned that this statute was also an impressible content-based restriction of speech—even though it was not limited to expressive conduct—because the statute was impermissible when applied to expressive conduct. The State also argued that lawful applications of the statute outweighed the potential for unlawful applications; however, the court rejected this idea because most conduct that falls under the statute would constitute protected expressions. By looking at past judicial decisions, the court found that it was uncommon for flag-destruction statutes to be used to prosecute non-expressive conduct, and therefore the risk was substantial that the statute would be applied to expressive conduct.
The State also argued that the flag-destruction statute only applied to criminal mischief, but the court disagreed. The court reasoned that the plain language of the statute allowed its application even when someone damaged his own flag and the State could potentially prosecute defendants under both criminal mischief and the flag-destruction statute.
Finally, the State argued that the flag-destruction statute would not be unconstitutionally applied because it is rarely enforced. The court rejected the contention that the State would properly apply the statute because the decision of constitutionality rests with the courts. Thus, the court found that the statute was facially unconstitutional.
JUDGE ALCALA, concurring.
In a concurring opinion, Judge Alcala mentioned three additional points. First, she pointed out that those who love the flag should agree with the ruling in this case, because this is the only way to honor the constitutional principles that the flag represents. Second, she noted that most homeowners likely have violated this statute at some point. Because the statute criminalizes the improper disposal of any flag, she noted even throwing away a small dollar store flag would be improper disposal under the statute. Finally, Judge Alcala noted that this holding was in accordance with the Supreme Court precedence, and therefore was the only correct decision.
JUDGE MEYERS, dissenting.
Judge Meyers filed a dissenting opinion where he stated that the statute was not overbroad, but rather a way to keep people from destroying a national symbol. He noted that in this case, the person was not attempting to express anything, and therefore was not protected by the First Amendment—which he stated is conduct that should be outlawed by statute.
JUDGE YEARY, dissenting.
Judge Yeary also filed a dissenting opinion, in which he stated that he did not agree that the Court even had the proper standing to hear the case. Judge Yeary reasoned that the court did not have the authority to decide this case because the State had the discretion to restrict standing in overbreadth cases, pursuant to Virginia v. Hicks. He argued that the case should have never been heard because the appellee in this case was not engaged in constitutionally protected behavior and Texas law, unlike federal law, requires the powers of the three branches to be completely separated. Therefore, he reasoned that the Court assumed it has the same powers of the United States Supreme Court in considering any constitutional challenge—even where the complaining party’s rights have not been violated—and may have overstepped its boundaries in this case by entering into an area that has been legislated. Judge Yeary also argued that the court misapplied the overbreadth standard by applying it to hypothetical situations rather than merely looking at the text of the statute. Thus he concluded that he could not agree with the court’s holding.