## IN THE COURT O F CRIMINAL APPEALS OF TE XAS

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T H E S T A T E O F T E X A S

v .
T E R E N C E J O H N S O N , A p p e l l e e

O N S T A T E ’ S P E T I T I O N F O R D I S C R E T I O N A R Y R E V I E W F R O M T H E T W E L F T H C O U R T O F A P P E A L S

H O U S T O N C O U N T Y

K E L L E R , P
. J
. , d e l i v e r e d t h e o p i n i o n o f t h e C o u r t i n w h i c h J O H N S O N , K E A S L E R , H E R V E Y , A L C A L A , a n d R IC H A R D S O N , J J
. , J O IN E D . A L C A L A , J
. , f i l e d a c o n c u r r i n g o p i n i o n . M E Y E R S , J
. , f i l e d a d i s s e n t i n g o p i n i o n . Y E A R Y , J
. , f i l e d a d i s s e n t i n g o p i n i o n . N E W E L L , J
. , d i s s e n t s . Twenty -six y ear s ag o, the United States Supreme Court held that the prosec ution of Gre g ory
L ee J ohnson under the Texas flag -dese cra tion statute for burning an Americ an flag violated the First
Amendment. Texas has since r evised a nd rena med the statute, whic h now provides in par t: 1

A person commits an offe nse if the perso n intentionally or knowing ly damag es,

Texas v. J ohnson , 491 U.S. 397 (1989). 1JOHNSON — 2

defa ces, mutilates, or bur ns the flag of the United States or the State of Te x as. 2

We hold that the statute is invalid on its fac e beca use it is unconstitutionally overbr oad in violation
of the F irst Amendment.
I. BACKG ROUND
A. The Incident
Video-c amer a surveillance showed two men and one woman walking on a cover ed sidewalk

next to a building. One man jumped towards a hangi n g United States flag

. Then the second

man—appe llee—re ache d and jumped for the flag and cause d the flag an d its staff to come off its
post into his hand. Appellee then threw the flag and its staff into the street. At almost the same time
that appellee threw the flag into the street, the other man knocke d over flower pots along the
sidewalk. Upon approa ching the surveillance came ra, appellee made various hand g estures and
walked out of

view.

I n a rec orded interview that occur red later, appellee explained that he threw the flag beca use
he wa s “mad.” He c laimed that he wa s upset bec ause of rac ial rema

rks made a

bout his mot her by
a loca l mercha

nt.
B. Trial Pr ocee din gs
As a result of this incident, appellee was char g ed by information wit h v i o lating the Texas flag -destruc tion statute, Texas Penal Code § 42.11. The information alleg ed that, on or about April 29, 2012, appellee did “[i] ntentionally or knowing ly damag e, defa ce, or mutilate a flag of the United
States by throwin g t he flag onto the g round/roadw ay of Hig hway 19.” The information further alleg ed that this act was n o t d o n e in confor mity with statutes rela

ting to the proper disposal of

T E X

. P E N A L C O D E § 42.11(a)

. 2JOHNSON — 3

damag ed fla g s. Appellee filed a motion to dismiss the information. At the hear ing on the motion to dismiss , the parties prese nted arg ument on the constitutionalit y of the flag -destruc tion statute, and the State
introduced the surveillance video and the r ecor ding of appellee ’s interview

. T h e trial judge ultimately g rante d the motion to dismiss

. I n her order , the trial judge
observe d that appellee could have been c harg ed with cr iminal mis chief under Te x as Penal Code § 28.03, but, beca

use his actions involved the United States flag , office rs char g ed him under § 42.11.
Citi ng Texas v. Johnson and United States v. Eichman , the trial judge conclude d, “[S] tatutes which 3 4
criminalize behavior beca use it specific ally prohibits acts ag ainst the flag of the United States have consistently

been f ound to be unconstitutional due to the restric tion on the Constitutional rights to
fre e speec h and expression.” Although Texas a mended its statute afte r the United States Supreme
Court handed down Texas v. Johns o n , the trial judge conclude d that the curr ent statute contains lang uag e simil ar to the federa l s t at u t e in Eichman , in which the Supreme Court found a First
Amendment violation. The trial judge also reje cted the State’s arg ument that the defe ndant’s actions

wer e not speec h. “I f an action s u ch as burning the flag is protec ted speec h,” the trial judge explained, “ the action of throwing a flag to the g round can also be protec t[ ed] speec h. Non-ve rbal
action is expressive, [and] the g overnme nt may not prohibit expression simply beca use it disag ree s
with the m essag e or the way it is expressed.” W h i l e the t rial j udg e found the m istreatment of the
United S t ates Flag to be “per sonally appalling ,” she conclude d that she was “bound to follow the ruling s of hig her c ourts.”

See supra n.1. 3 496 U.S. 310 (1990). 4JOHNSON — 4 C. Appeal
The State a

ppeale d. I t contended tha t the statute was c onstitut ional both on its fa ce a nd as applied to appellee

. Wit h respe ct t o appellee ’s facial challeng e, the State contende d that appellee
had the burden to establish the statute’s unconstitutionalit y and failed to meet that burden. The State
contende d that appell ee had “not prese nted any evidenc e, case s, or arg uments establishing [t he statute’s] unconstitutionalit y , with the exception of case s that never rea ched the issue of whether the

statute in question was unconstitutional on its fac e.” Wit h respe ct to appellee ’s as-a pplied challeng e,
the State contende d that appellee ’s conduct was not expressive beca use a ny o n e o b s e rving his actions
would believe mere ly that he was vandalizing the hardw are store that display ed the flag and beca use nothing sug g ested that appellee was communicating any messag e at all. Part of the rea son the State
b elieved appellee ’s conduct was not expressive was that he told the police that he was ang ry at a

merc hant from a

differ ent store f

rom the one w hose flaghe vanda liz ed.
The court of appea ls reje cted appellee ’s claim that the flag -destruct i o n statute was
unconstitutional as applied. I t conclude d that appellee ’s conduct was not suf ficiently imbued with
elements of communication so as to implicate the First Amendment. But the court of appea ls found 5
that § 42.11 was unconstitutional on its fac e beca use it was overbr o ad in violation of the First
Amendment. I n arr iving at its holding, the court rese arc hed case s in Texas and other jurisdictions

6
that wer e handed down afte r Texas v. Johnson and United States v. Eichman , and the court “found

State v. Johnson , 425 S.W .3d 542, 549 (Tex. App.–Ty ler 2 0 1 4 ). J udg e Yea ry ’s dissent 5 say s that the “statute most cer tainly was applied constitutionally under the circ umstances prese nted here .” For rea sons discussed later, we do not think that conclusion is self-e vident. But appellee did
n o t fi le a cross-pe tition complaining about the court of appea ls’s dispositi on of his as-a pplied challeng e, so we have no oc casion to re solve that claim.
Id. at 550-54. 6JOHNSON — 5

no case in which an individual was prosec uted under a flag desec ration statute that was deter mined
to be both constitutional on its fac e and as applied.” The court of appeals acknowledg ed that the 7
lack of authority rela ting to th e p ro s ec u t i on of individuals for flag desec ration arg uably shows a pattern of non-enf

orce ment, but the court conclude d that the statute was “not sufficie ntly narr ow to

preve nt a chilling eff

ect on the exercise of First Amendment fre edoms” and that the court was “not permitted to uphold an unconstitutional statute, even if the re a re pr omises to use it responsibly .” 8

II. ANALYSIS
A. The Overbre adth Doctrine
The First Amendment protec ts, among other things, the fre edom of speec h. The First 9
Amendment rig ht to fre edom of speec h ap p l i es t o the states by virtue of the Four teenth
Amendment. 1 0
Wit h respe ct to constitutional provisions other than the First Amendment, a fac ial challeng e

to the constitutionalit y of a statute can succe ed only when it is shown that th e s tatute is
unconstitutional in all of its applications. And usually , a defe ndant does not have standing to 1 1

Id. at 551-52. 7
Id. at 553. 8
U.S. C O N S T

. amend. I (“Cong ress shall make no law

. . . ab ri dg ing the fre edom of 9 speec h.”).
W

est Virginia Board of Education v. Barnette , 319 U.S. 624, 638-39 (1943). 1 0
W ashington State Grange v. W ashington State Republican Party , 552 U.S. 442, 449 & n.6 1 1 (2008); State v. Rosseau , 396 S.W .3d 550, 557-58 (Tex. Crim. App. 2013). See also United States v. Stev ens , 559 U.S. 460, 472-73 (2010).JOHNSON — 6

challeng e a statute on the g round that it may be unconstitutionally applied to the conduct of others. 1 2
But unde r the F irst Amendment’s “overbr eadth” doctrine, a law may be declare d unconstitutional

on its fa ce, even if it may

have some leg itimate application and even if the parties befor e the court

wer e not eng ag ed in ac t ivity protec ted by the First Amendment. “Or dinarily , the principal 1 3
advanta g e of the overbr eadth doctrine for a litigant is that it enable s him to benef it from the statute’s
unlawful a

pplication to someone e lse .” 1 4
The overbr eadth doctrine is “stro n g m ed i ci n e” that is used “spar ingly and only as a last

resor t. The overbre adth of a st atute m u s t be “substantial, not only in an absolute sense, but also 1 5

County Court of Ulster, N.Y

. v. Allen , 442 U.S. 140, 155 (1979) ; Broadrick v. Oklahoma , 1 2 413 U.S. 601, 610 (1973). This g ener al rule of standing is not the same as the jurisdictional “injury

in-fac t” standing require ment of Article I I I of the Unit ed S t at es C onstitut ion. The injury -in-fa ct require ment entails a showing that a party has a persona l stake in the outcome of the controve rsy by requiring that the party ’s intere st be “conc rete and particula rized” and “ac tual or imminent” r ather than conjec tural or hy

pothetical. Susan B. Anthony List v. Driehaus , 134 S. Ct. 2334, 2341 (2014). A prosec ution under an alleg edly unconstitutional law—like in thi s ca s e— cl ear ly satisfies that require ment beca

use appellant has been arr ested and prosec uted. Id. at 2342 (obser ving that “an actua l arr est, prosec ution, or other enfor ceme nt action” is not require d to establish injury in fac t so long as the threa t of such is sufficie ntly imminent); Secre tary of Maryland v. Joseph H. Munson Co. , 467 U.S. 947, 954-55 (1984) ( threa t of prosec ution was sufficie nt to establish injury in fac t). The principle that parties may no t asser t the unconstitutionalit y of a law as to others is a prudential standing require ment. Munson , 467 U.S. at 955 (“I n addition to the limit ations on standing imposed by Art. I I I ’s case -or- controve rsy require ment, there are prudential consid er ations that limit the challeng es courts are willing to hear ” including that the party “must asser t his own leg al rig hts and i n t er est s, and cannot rest his claim t o relief on the l eg al rights or i ntere sts of t hird parties. ”)

. T h e jurisdictional injury -in-fa ct require ment has no exceptions in fede ral court, but prudential standing require ments have been rela x ed “whe re competing considerations outweig h any prudential rationale ag ainst third-party

standing ” such a s in First Amendment ove rbre adth claims. Id. at 956-58.
Steve ns , 559 U.S. at 473; Sabri v. United States , 541 U.S. 600, 609-10 (2004). 1 3 Board of Trust ees v . Fox , 492 U.S. 469, 483 (1989) (e mphasis in origina l). 1 4
New Y ork St ate C lub Ass’n v. Ci t y of New Y

ork , 487 U.S. 1, 14 (1988); Broadrick , 413 1 5 U.S. at 613. See also Ex

parte Thompson , 442 S.W .3d 325, 349 (Tex. Crim. App. 2014).JOHNSON — 7

rela tive to the statute’s plainly leg itimate swee p.” The statute must prohibit a substantial amount 1 6
of protec ted expression, and the dang er that the statute will be unconstitutionally applied must be 1 7

rea listi c and not based on “fa nciful hy potheticals. ” The person challeng ing the statute must 1 8 1 9
demonstrate from its text and from actua l fac t “that a substantial number of instances exis t in which
the L aw cannot be applied constitutionally .” The Supreme Court “ g ener ally do[es] not a pply the 2 0 ‘strong medicine’ of overbr eadth analy sis wher e the parties fail to descr ibe the instances of arg uable
overbr eadth of the contested law.” Moreove r, the overb re ad t h doctrine is conce rned with 2 1

preve nting the chilling of protec ted speec h and that conce rn “attenua tes as the otherwise unprotec ted
behavior that it forbids the State to sanction moves from ‘pure speec h’ toward conduct.” “Rare ly , 2 2

if ever , will an overbr eadth challeng e succe ed ag ainst a law or reg ulation that i s n o t s p ec ifically
addre ssed to speec h or to conduct that is nece ssarily assoc i at ed with speec h (such as picketing or demonstrating ).” 2 3

J udg e Yea

ry ’s dissenting opinion sug g ests that, as a matter of state law, we might be fre e to
ref use to enter

tain overbr eadth claims. We do not ag ree
. The dissent relies upon the United States

United States v. W

illiams , 553 U.S. 285, 292 (2008). 1 6 Ashcroft v. Free Speec h Coalit ion , 535 U.S. 234, 244 (2002); Thompson , 442 S.W .3d at 1 7 349-50. Regan v . Time , 468 U.S. 641, 651 n.8 (1984); Thompson , 442 S.W .3d at 350.

1 8
Steve ns , 559 U.S. at 485. 1 9
New Y ork State Club Ass’n , 487 U.S. at 14. 2 0
W ashington Stat e Grange , 552 U.S. at 449-50 n.6. 2 1 Virginia v. Hicks , 539 U.S. 113, 124 (2003). 2 2
Id. 2 3JOHNSON — 8

Supreme Court case of Virginia v. Hicks and the Utah Supreme Court case of Provo City Corp. v. 2 4

W illden

. But Hicks itself rec og nized that whether the claimed overbr eadth is substantial enoug h

2 5

to r esult in f

acia l inva lidity involves “not standing , but ‘ the deter mination of [a] First Amendment challenge on the merits.’” And in Secre tary of Maryland v. Joseph H. Munson Co. , the Uni t ed 2 6

States Supreme Court made it clea r that the overbr eadth doctrine is in fac t a part of substantive First
Amendment law: [T] he Secre tary urg es that Munson should not have standing to challeng e the statute as overbr oad beca

use it has not demonstrated that the statute’s overbr eadth is “substantial.” The Secre tary raises a point of valid conce rn.
. . . Th e S ec reta ry ’s
conce rn, howeve r, is one that is more proper ly rese rved for the deter m i n ation of Munson’s First Amendment challeng e on the merits. The require ment that a statute be “substantially overbr oad” befor e it will be struck down on its fac e is a “standing ” question only to the extent that if the plaintiff does not preva il on the merits of its fac ial challenge and cannot demonstrate that, as applied to it, the statute is unconstitutional, it has no “standing ” to alleg e that, as applied to othe rs, the statute might be unc onstitut ional. 2 7

Moreove r, New Y

ork v. Ferber contains what appea rs to be an expli cit statement that state courts are
bound to apply the First Amendment overbr eadth doctri n e: “A s t at e court is not fre e to avoid a
pro p er fa ci al attack on fede ral constitutional g rounds.

. . . By the same token, it should not be compelled to ente rtain an ove rbre adth attac k when not re quired to do so by the Constitut ion.” 2 8

539 U.S. 113 (2003). 2 4 768 P.2d 455 (Utah 1989). 2 5 539 U.S. at 120 (quoting Munson , brac keted mate rial in Hicks ). 2 6
4 6 7 U. S

. at 9 5 8-59 (citations omitted). See also Sabri , 541 U.S. at 610 (citing 2 7 “Monag han, Over

brea dth, 1981 S. Ct. Rev. 1, 24 (observ i n g t h at overbr eadth is a function of substantive First Amendme nt law)” ). 458 U.S. 747, 767 (1982) (c iting Bigelow v. Virginia , 421 U.S. 809, 817 (1975)). 2 8JOHNSON — 9

The dissent relies on the following passag e in Hicks for the proposition that states may adopt
th e ir own standing require ments for overbr eadth challeng es: “Whether Virg inia’s courts sho u ld h a v e
entertained this overbr eadth challeng e is entirely a m at t er o f state law.” But these comments 2 9

appea r t o rela te t o the issue of whe ther a state is bound to apply

the nar row standing require ments
that exis t in fede ral court, or whether a state may instead have less stringe nt standing require ments.
The Supreme Court explained that “the problem” with the Commonwealth’s proposal was that the
Court was revie wing the decision of a state supreme court and state courts are not bound “by the
limit ations” of a

case or controve rsy

or other fede ral rules of justiciabilit y even when they addre ss
issues of fede ral law. The cited comments, there fore , seem to be a rec og nition of the unexceptional 3 0 proposition that states can pr ovide def endants more protec tion than fede ral lawprovides. 3 1
The diss ent also re lies on a passa g e fr om W illden that appea

rs, on its fac e, to support the 3 2
d i s s en t ’s p osition. But in that case , the Utah Supreme Court also seems to sug g est that a state’s
leewa y with respe ct to standing involved whether the state could have less stringe nt standing require ments than those in fede ral court. Reg ardle ss of the ambig uity , the Supreme Court of Utah 3 3

539 U.S. at 120 (empha sis in original). 2 9
Id. 3 0
See F lorida v. Powell , 559 U.S. 50, 59 (2010). 3 1
768 P.2d at 455-56 (“[T]he fede ral rules on standing

. . . are not binding on state cour ts, 3 2 and the article I I I constitutional restric tions and fede ralistic prudential considera tions that have g uided the evolution of fe dera l court standing law are not nece ssarily rele vant t o the deve lopment of the standing rules that apply to Utah’s state c ourts.”)
See id

. at 456-57 (re marking on the “rather narrow standing doctrines developed by the 3 3 fede ral courts” and quoting the Supreme Court’s rec og nition in New Y ork State Club Ass’n , 487 U.S. at 8 n .2, that state courts may “issue advisory opinions or
. . . deter mine matters that wo u l d n o t satisfy the more stringe nt require ment in the fede ral courts that an actua l ‘ca se’ or ‘controve rsy ’ beJOHNSON — 10

u l timately applied the overbr eadth doctrine and found the statute befor e it to b e fa ci al l y
unconstitutional. 3 4

I n Jayne s v. Commonwealth , the Supreme Court of Virg inia addre ssed and reje cted the exact

arg ument made in J udg e Yea ry ’s dissent. The Virg inia court rema rked that, on its fac e and without 3 5

contex t, the cited passag e from Hicks “appe ars to support the rule of standing advocated b y t h e
Commonwealth. I n a nutshell, that rule would be that state courts are not require d to apply the same standing require ments to a claimant who raises a First Amendment overbr eadth challeng e to a state

statute in a state court as would be acc orded a claimant in a fede ral court considering a simil ar First
Amendment overbr eadth claim.” “Howe ver,” the court responde d, “whe n viewed in the context 3 6
of the standing issue actua lly prese nted in [ Hicks ], and the longsta ndin g Fo u rt eenth Amendment jurisprudenc e by which First Amendment rig hts are made applicable in state court proce eding s, we disag ree with the Commonwealth’s arg uments.” Virg inia’s high court noted this colloquy , which 3 7 took place in the Hicks case during oral a rg ument befor e the United States Supre me Court: QUESTI ON: The issue is whether - whether [Virginia] adopted a broade r interpre tation under State lawthan Fe dera l law would re quire. [ANSW ER] : That is corr ect. A - a State may well be able to adopt a b ro ad er interpre tation of standing than this Court requir es, but it cannot adopt a narrower interpretation. It cannot disregard this Court’s direction that you give overbre adth standing according to the Fede ral constituti onal standards

. . . .

prese nted for r esolution”).

W illden , 768 P.2d at 455, 458-59. 3 4 276 Va. 443, 454, 666 S.E.2d 303, 308 (2008)

. 3 5
Id. at 455, 666 S.E.2d at 309. 3 6
Id. 3 7JOHNSON — 11

QUESTI ON: And if they wer e corr ect about what our standing rules are , they would have to follow those standing rules, wouldn’t they ? They could not apply a narr ower . . . basis for standing , could they ? [ANSW ER] : That is absolutely corr ect, Your

Honor. The State supreme c ourt has
no discretion to disregard this Court’s application of the First Amendm ent through its overbreadth doctrine. 3 8
The Supreme Court of Virg inia further observe d that the overbr eadth doctrine is a matter of
substantive First Amendment law, and as such, it is “a constitutional exception to state and fede ral
rules of standing that would otherwise limit a par ty to an as applied challeng e to a statute.” That 3 9

court also discussed the fac ts and proce dural posture of Hicks , and it conclude d that it was clea r that
in Hicks the Supreme Court a ddresse d the issue of First Amendment standing “only in the context by which that issue wa s place d befor e the Court: whethe r a state ’s expansion of F irst Amendment standing was subject to revie w by fede ral courts.” Analy zing the passag e in Hicks wher e the 4 0 Supr em e Court stated “[w]hether Virg inia’s courts should have enter tained this overbr eadth challeng e is entirely a matter of state law,” the Jayne s court found that “the term ‘this’ plainly limit s
the standing issue to what was befor e the Court in that case : an expansion, not a restric tion, of state court standing .” We ag ree
. 4 1

Moreove r, i t is difficult t o understand how the o v er brea dth doctrine could ever be applied by any court to invalidate a state law in its entirety if the doctrine is not itself a fede ral constitutional

Id. at 456-57, 666 S.E.2d at 310 (quoting Ora l Arg

. Tr., Virginia v. Hicks , No. 02-371, at 3 8 5 (Apr. 30, 2003) ) (br acke ted mater ial and empha sis in Jayne s ).
Id. at 458, 666 S.E.2d at 310-11. 3 9
Id. at 457, 666 S.E.2d at 310 (empha sis in Jayne s ). 4 0
Id. 4 1JOHNSON — 12

doctrine that the state courts have to follow. This status of overbr eadth as a substantive 4 2
constitutional doctrine is simil ar in that respe ct to Four th Amendment expectation-of- privac y issues,
which can be char acte rized as involving “st anding ,” but are more acc urate ly viewed as part of
substantive Four

th Am endment law. No one would claim, for example, that a state court can 4 3
decline to enter

tain the Four

th Amendment claims of an overnig ht g uest on the g round that overnig ht

g uests simply

do not have standing in state court unde r state law

. 4 4

J udg e Yea

ry ’s dissent attempts to draw a distinction betwee n the substantive rule of
overbr eadth and a proce dural rule of overbr eadth that acc ords liberalized standing

. He claims that
he would not chang e the substantive rule but would mere ly restric t which litigants could succe ssfully bring a First Amen d m en t o v erbreadth claim in state court. But we are not confr onted with the question of whether a claim confe rs standing sufficie nt to allow the individual to appear in c ourt.

See Dicke rson v. United States , 530 U.S. 428, 438 (2000) (holding that “first and fore most 4 2 of the fac tors” supporting the conclusion that “ Miranda is a constitutional decision” is that the case applied the rule to “prose cutions arising in sta te courts”) ; NAACP v

. Button , 371 U.S. 415, 432-33 (1961) (re cog nizi ng the ap plication of overbr eadth doctrine to state laws and explaining that, “[b] eca use F irst Amendment freedoms need brea thing spa ce to survive , g overnme nt may reg ulate in the are a only

with narrow

specific ity ”).
See Rakas v. Illinois , 439 U.S. 128, 139-40 (1978) (citations omitted) (re aff irming g ener al 4 3 standing principles but stating that “this Court’s long history of insistence that Four th Amendment rig hts are persona l in nature has alre ady answe red many of these traditional standing inquiries, and
we think that definition of those rig hts is m o re p ro perly place d within the purview of substantive Four th Amendment law than within that o f s t an d i n g”) (citations omitted); State v. Klima , 934 S.W .2d 109, 110 (Tex. Crim. App. 1996) (re cog nizi ng that “the application of Four th Amendment rig hts are pe rsonal in nature and ar e invar iably intertwined with the c oncept of standing ”).
See Minnesota v. Olson , 495 U.S. 91, 96-97 (1990). See also Jayne s , 276 Va. at 458, 666 4 4 S.E.2d at 311 (The Commonwealth’s view “is an untenable position bec ause the rig ht to asser t the protec tion of the First Amendment (by overbr eadth or otherwise) can no more be restric ted by a state rule of standing than the exclusionary rule applied to impermissible sear ches and seizures could be limit ed by

state evide nce la

w.”)

.JOHNSON — 13

This is not a civil lawsuit filed by a person seeking to invoke a court’s jurisdiction on a First
A me n dment claim. This case —a criminal prosec ution—is the State’s action. The State has a lr e a d y 4 5
invoked the jurisdiction of the co u rt s , with the flag -destruc tion statute being the basis for that
invocation. As a result, the trial court had authority to decide the case , and authority to revie w that
decision on appea l was confe rre d by Chapter 44 of the Code of Criminal Procedur e. Appellee has 4 6 simply defe nded ag ainst the State’s action by substantively challeng ing the fac ial constitutionalit y
of the fl ag- d es t ru ct ion statute. The trial court ag ree d and dismiss ed the information, and it is the
Stat e that now seeks the intervention of this Court to overturn the trial court’s substantive leg al
decision. I f acc epting the overbr eadth doctrine as a matter of substantive fede ral constitutional law

means any

thing, it m eans, at the least, that a criminal defe ndant can defe nd himself in a criminal

prosec ution by chall en gi n g the consti tutionality of t he st atute defining the crime with which he is
char g ed. The dissent say s that this violates the Separa tion of Po we rs cl au s e o f the Texas

Nor is the prese nt case ev en a h ab ea s action, which might at least arg uably be said to 4 5 aff irmatively

invoke a c ourt’s jurisdiction, althoug h it might also be chara cter ized as a ve hicle for challeng ing the State’s criminal action, espec ially when invoked at the pretria l stag e. See Ex parte Rieck , 144 S.W .3d 510, 515 (Tex. Crim. App. 2004) (discussing differ ing way s of char acte rizing the nature of habe as proc eeding s).

See T E X

. C O D E C R I M

. P R O C

. arts. 44.01, 44.02. The S upreme Court has recog nized that 4 6 t h e p osture of the case befor e the court—how the action came befor e it and which party i s complaining —can affe ct t he ex istence of standing

. See Hicks , 539 U.S

. at 120-21 (“B eca use i t is the Commonwealth of Virg inia, not Hicks, that has invoked the authority of the fede ral courts by petitioning for

a writ of cer

tiorari, our jurisdiction to revie w the F irst Amendment merits question is clear . . . . The Commonwealth has suf fer ed, as a

conseque nce of

the Virg inia Supreme Court' s ‘final judgme nt altering tang ible leg al rig hts,’

. . . an actua l injury in fac t—inabili t y t o p rosec ute Hicks for trespass—that is suf ficiently ‘distinct a

nd palpable’ to confe r standing under Article I I I

.

. . . We acc ording ly proce ed to that merits inquiry , leaving for another day the question whether our ordinary rule that a litigant may not rest a claim to relief on the leg al rig hts or interests of third parties . . . would e x clude a case such as this from initiat ion in fede ral c ourt.”) ( emphasis adde d).JOHNSON — 14

Constit ution, but “ [t ]he pow er to de termine the validity of an Act of the leg islature rests with the

4 7

Courts.” 4 8
The dissent also contends that allowing an overbr eadth claim by a person who cannot show
that the statute is unconstitutional as to him invites us to assume the power to issue advisory opinions
and that we are without power to do that. The United States Supreme Cou rt , which rec og nizes
overbr eadth claims, is also—under Article I I I of the United States Constit ution—without power to
rende r advisory opinions. By holding that overbr eadth i s an ex ception to a prudential rule of 4 9 standing , rathe r than to jurisdictional standing under Article I I I , the Supreme Court has eff ectively 5 0
held that the overbr eadth doctrine does not g ive rise to advisory opinions. Even if we could depar t 5 1
from Supreme Court prec edent in deciding whether to rec og nize overbr eadth claims, we do not see
any rea son to construe “advisory opinions” to mean something differ ent under state law than it does
in the Supreme Court’s jurisprudenc e. There is nothing advisory o r hy pothetical about the

conseque nce of a criminal def en dant preva iling on an overbr eadth challeng e to the statute that

See T E X

. C O N S T . art. I I , § 1. 4 7 Ex parte Halsted , 147 Tex. Crim . 453, 457, 182 S.W .2d 479, 482 (1944). 4 8
See Massachusetts v. Environmenta l P rotection Agenc y , 549 U.S. 497, 516 (2007) (No 4 9 justiciable controve rsy exis ts under Article I I I of the United States Constit ution when the parties ask for a n advisory

opinion.). See supra n. 12. 5 0
S ee also Fede ral Election C ommission v. Akins , 524 U.S. 11, 24 (1998) (indicatin g t h e 5 1 injury -in-fa ct require ment of Article I I I preve nts a dvisory opinions); Savage v. Gee , 665 F.3d 732, 7 4 0 (6th Cir. 2012) (holding that overbr eadth claimant must still show that enfor ceme nt o f t h e challeng ed statute ag ainst him is actua l or imminent and quoting Prime Media v. City of Brentwood , 485 F.3d 343, 350 (6th Cir. 2007): “B eca use overbr eadth cre ates an exception only to the prudential standing inquiry , the Supreme Court ha s made clea r that the injury in fac t require ment still applies to overbre adth claims under the Fir st Amendment.”).JOHNSON — 15

define s the cha

rg ed off ense—the case ag ainst him is di smissed.

B. Th e State ’s Argum ents
The State contends that appellee has fa i led to meet his burden to show that the flag

destruction statute is substantially overbr oad by its text and has a substantial number of
unconstitutional applications in actua l fac t. Wit h respe ct to t h e t ex t , the State contends that the

statute is a leg itimate content-ne utral law beca use it does not expressly restric t speec h and beca use
it punishes any kind of dam age or destruction to a United States or Texas flag , reg ardle ss of the

actor ’s motive. The State further contends that the amount of protec ted speec h cover ed by § 42.11
is “minimal when compar ed to the non-expressive conduct lawfully prohibited” and that any risk of a chilling eff

ect is “dw arf

ed by the number of

lawful a pplications” of the sta tute. 5 2
Wit h respe ct to whether the statute has a substantial number of unconstitutional applications
in actua l fac t, the State contends that appellee has failed to “provide examples of actua l people who
have been deter

red from eng ag ing in protec ted speec h or conduct.” The State further contends that
the court of appea ls conce ded that the absenc e of evidenc e of prosec ution under this statute arg uably
shows a pattern of non-enf orce ment. The State arg ues that the statute produce s no chilling eff ect 5 3
beca use “the aver ag e citizen g ener ally understands that burning a flag as part of expressive speec h
or conduc t is protected by the United States Constitut ion.” 5 4
The State also contends that appellee ’s conduct was not protec ted by the First Amendment

At oral a rg ument, the State claimed that “almost all” of the conduct the statute cover s is 5 2 outside the First Ame ndment’s protec tion.

See J ohnson , 425 S.W .3d at 553. 5 3
State’s brief quoting id. at 552 (quoting Roe v. Milligan , 479 F. Supp. 2d 995, 1007 (S.D. 5 4 I owa 2007) ).JOHNSON — 16

beca use it was not expressive: Appellee ’s conduct instead constituted an act of criminal mischief with no intent to convey any particula

rized messag e. I ndeed, a ccor ding to a ppellee, he did not even expect the flag to come off i ts staff and into his hand when he jumped and re ache d for it. Appellee attempted to explain his conduct by claiming he was mad [at] a local
merc hant. Howeve r, i n no way did his actions relay that he wa s ang ry with a l ocal
merc hant. I n fac t, the flag that he threw onto the highw ay was in front of a differ ent store than the one appellee claimed to be ang ry with. Fur ther, there was no element of speech in his conduct. The very way appellee committed his crime was random in nature. 5 5 During oral arg ument, the S tate sugg ested that the flag- destruction st atute was “re al l y just
criminal mischief in rela tion to the flag .” The State arg ued that a punishment provision with respe ct

to conduct direc ted ag ain s t the flag —simil ar to curr ent provisions that enhanc e punishment for damag e to churc hes and public monuments—could have been included in the criminal-mis ch i ef

statute. I f the flag -destruc tion statute swee ps too broadly by punishing someone who damag es his

5 6

own flag , the State further arg ued, the statute could be narr owly construed to apply only to situations
in which the conduct would actua lly constitute criminal mischief, i.e. damag e t o someone else’s

proper ty

. 5 7

C. The Statute
1. The Text
“The first step in overbr eadth analy sis is to construe the challeng ed statute; it is impossibl e

Citations om itted, some capitalization chang ed. 5 5
S ee T E X

. P E N A L C O D E § 28.03(f) (state- jail felony punishment if criminal mischief 5 6 involves “plac e of worship or human burial, a public monument, or a community cente r that provides medical, soc ial, or educ ational prog rams”)

.

See id. § 28.03. 5 7JOHNSON — 17

to deter mine whether a statute rea ches too far without first knowing what the statute cover s.” The 5 8 Texas flag -destruc tion statute provides: (a) A person commits a

n offe nse if the person intentionally or knowing ly damag es, defa ces, mutilates, or bur ns the flag of the United States or the State of Te x as. (b) I n this section, “flag ” mea ns an emblem, banner , or ot her standard or a copy of
an emblem, standard, or banner that is an officia l or commonly rec og nized depiction of the flag of the United States or of this state a nd is capa ble of be ing f

lown from a staff of any char acte r or siz e. The term does not include a repr esenta tion of a flag on a written or printed document, a periodica l, sta tionery , a painting or photogr aph, or an ar ticle of c lothing or je welry

. (c) I t is an exception to the application of this section that the act t h at woul d otherwise constitute an off en s e is done in confor

mity with statutes of the United States or of this state re lating to the pr oper disposal of da mag ed fla g s. 5 9
Unlike its prede cessor , the curr ent statute narr owly define s what is meant by a “fla g ,” and it 6 0
excludes cer

tain dep i ct ions of a flag from its rea ch. For example, the curr ent statute avoids past

controve rsies reg arding the repr esenta tion of a flag on clothing by expli citly providing that such does

not count as a flag

. The curr ent statute also differ s from its prede cessor in that it does not require 6 1
that the ac tor be a

war e of the likely

impact of his conduc t on others. 6 2

W illiams , 553 U.S. at 293. 5 8
T E X

. P E N A L C O D E § 42.11(a) -(c ). The statute also provides that the offe nse is a Class A 5 9 misdemeanor. Id. § 42.11(d).

See T E X

. P E N A L C O D E § 42.09(a) (3) (West 1988) (“A person co m m i t s an offe nse if he 6 0 intentionally

or knowing ly

desec rate s . . . a state or

national flag .”)
See Smith v. Goguen , 415 U.S. 566 (197 4 ) (U n i t ed S t ates flag sewn to the seat of 6 1 defe ndant’s trouser s); Delorme v. State , 488 S.W .2d 808 (Tex. Crim. App. 1973) (same)

. See T E X

. P E N A L C O D E § 42.09(b) (West 1988) (“F or purposes of this section, ‘dese cra te’ 6 2
means defa ce, damag e, or otherwise phy sically mistreat in a way that the actor knows will seriously offend one or more pe rsons likely to observe or discover his action .”) ( emphasis adde d).JOHNSON — 18

The curr ent Texas statute also circ umscribes the ty pe of co n d u ct toward a flag that is

proscr ibed. The statute prohibits only phy sical mistreatment that alters or damag es a flag

. The

statute does not apply to words spoken that are critica l of the United States or Texas flag , nor does 6 3 the statute apply

to phy sical ac ts that do not alter or da mag e a f lag

. 6 4

2. Narrowin g Const

ruction ?
The fe dera l constituti on aff ords the states br oad author ity to construe a s tatute narrowly to
avoid a constitutional violation. At t h e o u t set, we will assume that the flag -destruc tion statute 6 5 applies only

to acts that phy sically

damag e a f

lag

. 6 6
The State arg ues that the statute may be construed to ap p l y o n l y to conduct that would
otherwise c onstitut e cr iminal mis chief , that is, conduct that damag es someone else’s flag (without consent). We decline to impose such a narr owing construction beca use nothing in the lang uag e of 6 7
the statute supports it. On the contra ry , the text of the statute is unambig uously broad in this respe ct, apply ing to the conduct of intentionally or knowing ly damag ing any United Sta t es or Texas flag ,
reg ardle ss of who owns the f lag and whe ther that owne r has c onsented to the c onduct.

See Street v. New Y

ork , 394 U.S. 576 (1969) (holding unconstitutional, as applied, a statute 6 3 that punished words that c ast contempt on the fla g of the United States)

.

See People v. Mey ers , 23 I ll. App. 3d 1044, 1045, 321 N.E.2d 142, 143 (5th Dist. 1974) 6 4 (def endant se en ly ing on A merica n flag in a public par

k).
Osborne v. Ohio , 495 U.S. 103, 115 n.12, 119-21 (1990); Thompson , 442 S.W .3d at 339. 6 5 Although the curr ent statute makes it a n offe nse to, a

mong other things, “def

ace ” a flag , 6 6
we will assume that the term “def ace ” can be narr owly construed to not apply to temporar y attachme nts to a flag

. See Spence v. W ashington, 418 U.S. 405 (1974) (involving a pea ce sy mbol made of remova ble black ta

pe attac hed to a United States f lag ).
See T E X

. P E N A L C O D E § 28.03(a)

. 6 7JOHNSON — 19

Although a Texas court has a duty to employ , if possible, a rea sonable narr owing
construction to avoid a constitutional violation, such a construction should be employ ed only if the

statute is r eadily susceptible to one

. “We may not r ewr ite a statute that is not rea dily subject to a 6 8

n ar ro wi ng construction beca use such a rew riting constitutes a serious invasion of the leg islat i v e
domain and would sharply diminis h the leg islature’s incentive to draf t a narr owly tailored statute in
the first place .” A law is not rea dil y s u bject to a narr owing construction if its meaning is 6 9 unambig uous. We should be war y of rea ding into a statute a narr ow meaning not supported by its 7 0 lang uag e beca

use such a construction may later be reje cted as untenable

. Moreove r, when the 7 1

statute is unambig uous, the public at larg e will n o t nece ssarily be on notice that the law means something other than exactly what it say s. I nstead, we should act in acc ordanc e with our usual rules
of statutory construction and construe a statute in acc ordanc e with unambig uous lang uag e absent a
f in d in g o f a b s u r d r e s ults. Consequently , we construe the flag -destruc tion statute in acc ordanc e w it h 7 2
the text ’s unambig uously broad command ag ainst intentionally or knowing ly damag ing any United

Tho mp s o n , 4 4 2 S

. W .3d at 339; Long v. State , 931 S.W .2d 285, 295 (Tex. Crim. App. 6 8 1996). See also Stev ens , 559 U.S. at 481.

Thompson , 442 S.W .3d at 339. See also Long , 931 S.W .2d at 295; Steve ns , 559 U.S. at 6 9 481. Thompson , 442 S.W .3d at 339 ; Olve ra v. State , 806 S.W .2d 546, 553 (Tex. Crim. App.

7 0 1991).
See W

ilson v. Stat e , 448 S.W .3d 418 (Tex. Crim. App. 2 0 1 4 ) (d i s av owing statement i n 7 1 Scott , made in context of Fi rst Amendment challeng e, that statutory term “re peate d” could be
narr owly construed to apply only to activit y occur ring in close enoug h proxi mity to proper ly be termed a single episode). Thompson , 442 S.W .3d at 339-40. See also Boy kin v. State , 818 S.W .2d 782, 785 (Tex. 7 2 Crim. App. 1991).JOHNSON — 20

States or Texas flag

. 7 3

D. Sw eep of the Statute under its Text
1. Unconstit ution al Appli cations
The Supreme Court has rec og nized that the conduct of intentionally or knowing ly damag ing

a United States flag is not inhere ntly expressive. As a result, a statute that proscr ibes such conduct 7 4
will at least theore tically apply to some circ umstances that do not implicate the First Amendment.
The question is whether the applications of such a statute that do implicate (and violate) the First
Amendment ar e so substantial that the statute must be held invalid on its fac e.
I t is clea r that the Texas flag -destruc tion statute violates the First Amendment when applied

to some circ umstances. I n Texas v. Johnson , the S u p re m e C o urt found that the former flag

desec ration statute was applied in violation of the First Amendment when the State punished a
person who burned a United States flag as part of a protest ag ainst the Reag an Administration. The 7 5 flag -dese cra tion statute made it a n offe nse to “ intentionally or knowing ly desec rate []

. . . a state or
national flag ,” with “dese cra te” being define d to mean to “def ace , damag e, or otherwise phy sically

See also Snider v. City of C a p e Gi rardeau , 752 F.3d 1149, 1158-59 (8th Cir. 2014) 7 3 (dec lining to limit Missouri flag -dese cra tion statute to non-expressive conduct g iven the absenc e of lang uag e to sug g est such a limit ation); State v. Janssen , 213 Wis

. 2d 471, 480-82, 570 N.W.2d 746, 751 (Ct. App. 1997), aff’d , 219 Wis

. 2d 362, 580 N.W.2d 260 (1998) (dec lining to limit Wis consin statute to non-expressive conduct in part beca use the statute’s “plain rea ding prohibits all intentional and public acts of defiling , mutilating, and casting contempt o n t h e fl ag ; it does not distinguish non-expressive conduc t”).
Johnson , 491 U.S. at 403 n.3 (“A tired person might, for example, drag a flag throug h the 7 4 mud, knowing that this conduct is likely to offe nd others, and y et have no thought of expressing any idea.” ), 405 (“We have not automatically conclude d, howeve r, that any action taken with respe ct to our flag is expressive. I nstead, in char acte rizing such action for First Amendment purposes, we have considere d the context in which it occurre d.”); Thompson , 442 S.W .3d at 334. 491 U.S. at 399, 418-20. 7 5JOHNSON — 21

mistreat i n a wa

y that the ac tor knows will seriously offe nd one or more persons likely to observe

o r d iscover his action.” The Court conclude d that whether the defendant’s treatment of t h e fl ag 7 6
violated Texas law depende d on “the likely communicative impact of his expressive conduct.” The 7 7
Court further

conclude d that such a r estriction on expression was conte nt based. 7 8
The Cou rt then considered the State’s asserted i ntere st in “pre serving the flag as a sy mbol
of nationhood and national unity .” This inter est was found to be insufficient to justify a content- 7 9
based restric tion beca

use “[i] f there is a bedroc k principle underly ing the First Amendment, it is that
the g overnme nt may not prohibit the ex p re s s ion of an idea simply beca use society finds the idea
itself offe nsive or disag ree able” and the Court has “not rec og nized an except ion to this principle

even wher e our flag h as been involved.” The State arg ued that, even if the flag ’s sy mbolic role 8 0
does not allow the S t at e t o p ro h i bit words or some expressive conduct critica l of the flag , it does
allow the State “to forbid the outrig ht destruction of the flag .” The Court reje cted this distinction, 8 1

say ing that it “ is of no moment where the nonverba l c onduct is e x pressive, as it is here , and wher e
the reg ulation of that conduct is rela ted t o expression, as it is here .” The State’s “foc us on the 8 2

prec ise nature of” the defe ndant’s ex pression, “miss e[d] the poi nt” of t h e Court’s prior decisions:

See id. at 400 n.1 (quoting T E X

. P E N A L C O D E § 42.09 (1989))

. 7 6
Id. at 411. 7 7
Id. at 412. 7 8
Id. at 413. 7 9
Id. at 414. 8 0
Id. at 416. 8 1
Id. 8 2JOHNSON — 22

“their enduring lesson, that the g overnme nt may not prohibit expression simply beca use it disag ree s
with its messag e, is not depende nt on the particula r mode in which one chooses to express an idea.” 8 3

“I f we wer e to hold tha t a State may forbid flag burning wher ever it is likely to endang er the flag ’s

sy mbolic role,” the Court continued, “but allow it wher ever burning a flag promotes that role” then “[w]e would be p er m itting a State to ‘pre scribe what shall be orthodox ’” in violation of the First
Amendment. 8 4 Although the curr ent flag -destruc t i o n s t at u t e d iffer s somewhat from the flag -dese cra tion

stat u t e considere d in Texas v. Johnson , it is simil ar to the statute considere d in United States v.
Eichman

. I n Eichman , the fede ral flag -protec tio n s t atut e made it a crime if a person “knowing ly mutilates, defa ces, phy sically defiles, burns, maintains on the floor or g round, or tramples upon any flag of the United States” unless the conduct consists of “the disposal of a flag when it has become

wo rn or soiled.” The Gover nment relied heavily on the fac t that, unlike the statute in Texas v. 8 5
Johnson , the federa l statute did not require the actor to have a ny intent or knowledg e with respect

to whether his actions would seriously offe nd onlookers. The Supreme Court was not persua ded 8 6
that this fa ct made any differ ence : “ Although the Flag Protection Act contains no expli cit contentbased limit ation on the scope of the prohibited conduct, it is never theless clea

r that the Gover

nment’s

asser ted intere st is related to the suppression of fre e expression.” “The Gover nment’s interest in 8 7

Id. 8 3
Id. at 416-17. 8 4
496 U.S. at 314. 8 5
Id. at 315. 8 6
Id. (interna l quotation marks omitted). 8 7JOHNSON — 23

protec ting the phy sical integ rity of a privately owned flag ,” the Court explaine d , “re sts upon a
perc eived need to prese rve the flag ’s status as a sy mbol of our Nation and cer tain national ideals.” 8 8

Eac h of the acts that wer e prohibited by the statute, with the possible exception of “burns,” connoted

a disrespec tful trea tment of the flag , and the expli cit exception for th e d i s p o sal of soiled flag s protec ted “ce rtain acts traditionally associate d with patriotic respe ct for the flag .” Consequently , 8 9
the statute was an impermissible content-ba sed restric tion of speec h when applied to a person who
used the mistrea tment of a fla g as a me thod of expressing a n idea. 9 0 Thoug h the flag -destruc t i o n statute befor e us is not limit ed solely to expressive conduct,
Eichman teac hes that, when this ty pe of statute does apply to expressive conduc t , i t is an impermissible content-ba sed restric tion. As in Eichman , the prese nt Tex as s t at u t e contains an exemption for conduct associate d with the proper disposal of a flag

. So, as in Eichman , the prese nt

statute distinguishes betwee n disrespec tful and respe ctful conduct that damag es a flag

. And while 9 1
the Texas statute does not require that the disrespec tful conduct be expressive, such conduct is very likely to be expressive in a g iven case beca use of the sy

mbolism associate d with fl ags
. Flag s are “[p] reg nant wit h express i v e content,” and the United S tates flag “re adily signifie s this Nation.” 9 2

Id. at 315-16. 8 8
Id. at 317. 8 9
Id. at 317-19. 9 0
J udg e Yea

ry ’s dissen t i n g o pinion say s that the leg islature enac ted the flag -destruc tion 9 1 statute in its curr ent form afte r Texas v. Johns o n in “an attempt to cure potential constitutional problems with that law.” But the Supreme Court issued its opinion i n Eichman afte r the curr ent statute was e nacte d, and it is Eichman , more than a ny other c ase, tha t guide s our dec ision today

. Johnson , 491 U.S. at 405. 9 2JOHNSON — 24

The statutory lang uag e clea rly applies to those who damag e a flag of the United States or Texas a s

a means of communicating a messag e (e.g

. of protest ag ainst the United States or Texas). The only

asce rtainable purpose of a law as broadly worde d as the prese nt one—which applies even when the

actor damag es hi s own flag —is to protec t the i nteg rity of the United States f

lag or Tex as flag as a
sy mbol. 9 3

2. Expressive Applications Predom inate

T h e S t at e contends that the number of lawful applications of the flag -destruc tion statut e
dwar fs its unlawful applications, but, aside from the prese nt case , t h e S t ate does not attempt to
descr ibe the lawful applications to which the statute theore tically applies. We are awa re of two ty

pes
of situations sug g ested by the case law that might involve lawful applications to conduct that is nonexpressive, but the nature of both situations sug g ests that prosec utions for them will be uncommon, which in turn sug g ests that the leg itimate rea ch of the statute is narrow

. The first is conduct toward a flag that is hidden or secr etive. The more hidden the conduct, 9 4

arg uably the less expressive it is likely to be, but as conduct become s more hidden, it also become s 9 5

See Eichman , 496 U.S. at 315-16. The natura l sy mbolism of the flag s, the discrimination 9 3 betwee n respe ctful and disrespec tful trea tment of the flag s, and the fac t that the obvious leg islative purpos e i s o n e that is direc ted at expression distinguishes the statute at issue here from the disorderly -conduc t provisions cited in J udg e Yeary ’s di ssenting opinion. See above disc ussion of Eichman. As will be seen below, the offe nse of flag destruction also differ s from these offe nses beca use prose cutions for fla g destruction have ty pically been dir ecte d at expressive ac tivity

. See Carpenter v. State , 597 So. 2d 757, 758 (Ala. Crim. App. 1992) (soiled flag wadde d 9 4 up in coat pocke t).

But see Stanley v. Georgia , 394 U.S. 557 (1969) (F irst Amendment protec ts viewing 9 5 obscenity in the privac y

of the home)

.JOHNSON — 25

less likely to be discover ed, and thus less likely to be prosec uted. I f the c onduct towar d a fla g is 9 6 completely hidden, it will likely be only by unusual happensta nce that a prosec uting authority will
be ale rted to the situation. 9 7
The second ty

pe of situation involving potentially non-expressive conduct invo lves the

person who acts disrespec tfully toward a flag with a casua l or cava lier attitude but without intending

to c ommunicate a messag e. The hy pothetical desc ribed by

the Supreme Court was that of “a tired person” who might “dra g a flag throug h the mud, knowing that his conduct is likely to offe nd others,
and y et have no thought of expressing any idea.” The Court offe red this hy pothetical mere ly as a 9 8 “possibility ” that might be prosec uted under the former Texas statute that was analy zed in Texas v.
Johnson

. We ag ree with other cour ts that this s cena

rio is an unlikely

one. 9 9 1 0 0

Most conduct that falls within the provisions of the s t at u t e and that would come to the

See W ayte v. United States , 470 U.S. 598, 612-14 (1985) (discussing passive-e nforc ement 9 6 policy o f p ro secuting those who repor t their ref usal to reg ister for selec tive service or who are repor ted and rec og nizi ng that Gover nment can more easily prosec ute those who openly and obviously violate the law)

. See Carpenter , 597 So. 2d at 758 (soiled flag wadde d up in coat pocket discovere d afte r 9 7 defe ndant was a

rre sted for littering and dese cra ting a Post Office)

. Johnson , 491 U.S. at 403 n.3. 9 8
Id. The Court de clined to a ddress the constitutionalit y of such a pr osecution bec ause it 9 9 could dec ide the ca se bef ore it on nar

rowe r g rounds. Id.
Snider , 752 F.3d at 1158 (ca lling it an “unlikely hy pothetical” and holding the Missouri 1 0 0 flag -dese cra tion statute unconstitutionally overbr oad); Commonwealth v. Bricke r , 542 Pa. 234, 246, 666 A.2d 257, 263 (1995) (citing footnote 3 of Johnson and stating, “We hold ope n the possibili ty that there are narr ow cate g ories in which the flag is used in a non-expressive manner and, in this reg ard, the United States Supreme Court ag ree s.”).JOHNSON — 26

attention of the authorities would constitute protec ted expression. The assessment of Wis consin’s 1 0 1 high court reg arding its own flag -dese cra tion statute seems to apply equally to the statute befor e us: “Althoug h there may be constitutionally permissible applications[,]

. . . the number of instances in
which the law could be applied to unprotec ted behavior is small in compar ison to the number of instances in which it may be applied to e x pression protec ted by the Fir st Amendment.” 1 0 2

3. Crim inal M

ischief Not Relev ant
The State a

rg ues that the fla g -destruc tion statute essentially penalizes criminal mi schief in
rela tion to the flag , but we disag ree
. Criminal mischief, as define d in Texas, occur s when a person
in te n ti o n a ll y or knowing ly damag es, destroy s, tampers with, or makes marking s o n p r o p e r ty “ w it h o u t
the eff ective consent of the owner .” As we have alre ady explained, the flag -destruction statute 1 0 3 applies eve n when someone damag es his own flag

. 1 0 4

J udg e Yea

ry ’s dissenting opinion co n t en d s that this conclusion is not a proper 1 0 1 consideration in an overb re ad t h analy sis beca use the doctrine “as it is curr ently enfor ced by the Supreme Court, require s an examination of t h e s t a t u t e itself, and not mere ly the potential or hy pothetical First Amendment uses” of t he conduct proscr ibed by the s tatute. But, as the di ssent seems to c oncede , an examination of the statute and of the possible use s of the conduct proscr ibed by the statute are not mutually exclusive inquiries. As we explained ear lier, the overbr eadth doctrine contemplates a showing , from the text and from actua l fac t, “that a substantial number of instances exis t in which the L aw c annot be a pplied constitutionally .” New Y ork St ate C lub Ass’n , 487 U.S. at 14. E x ami ning the probable First Amendment uses of conduct proscr ibed by the statute is a nece ssary step in answer ing suc h an inquiry

. State v. Janssen , 219 Wis

. 2d 362, 387, 58 0 N.W .2d 260, 270 (1998). Although the 1 0 2 Wis consin statute was broade r than the curr ent Texas statute, the Supreme Court of Wis consin found it to be unconstitutionally overbr oad even when narr owed to rea ch only conduct that defiled the flag throug h purely

phy sical ac ts. Id. at 382, 580 N.W.2d at 268.
T E X

. P E N A L C O D E § 28.03(a)

. 1 0 3
I t is indisputably true that a person wh o damag es someone else’s flag without consent 1 0 4 could validly be punished under a g ener al criminal mischief statute such as Penal Code § 28.03. See Johnson , 491 U.S. at 412 n.8 (“[N]othi ng in our opinion should be taken to sug g est that one is fre eJOHNSON — 27

Fur thermore , when c onsidering the possible leg itimate applications of the flag -destruc tion statute, there are two rea sons that we should not count ca ses that amount to c riminal mischief: the flag -destruc tion statute does not require the State to show that the person’ s conduct toward a flag was

an act of criminal mischief, and nothing preve nts the State from prosec uting a person under both 1 0 5

to steal a flag so long as one later uses it to communicate an idea.” ). Some of the Supreme Court’s
case s arg uably support a conclusion that the State could validly enhance punishment for someone who commits criminal mischief on the b asi s that the proper ty damag ed was a United States flag beca use damag e to suc h proper ty is a n espec ially eg reg ious form of criminal mischief, involving a g rea ter harm to the flag ’s owner than its monetary value would indicate. See Virginia v. Black , 538 U.S. 343, 363 (2003) (“The First Amendment permits Virg inia to outlaw cross burning s done with the intent to intimi date beca use burnin g a cr o s s is a particula rly virulent form of intimi dation. I nstead of prohibiting all intimi dating m essag es, Virg inia may choose to reg ulate this subset of intimi dating messag es in light of cross burning ’s long and pernic ious history as a signa l of impending violence.” ); W isconsin v. Mitchell , 508 U.S. 476, 487-88 (1993) (Statute does not violate First Amendment when it “sing les out for enhanc ement bias-inspired [assaultive] conduct beca use this conduct is thought to inflict g rea ter individual and socie tal harm.” ). I n any event, the Supreme Court has expli citly rec og nized the g overnme nt’s power to protec t publicly owned f lag s. Eichman , 496 U.S. at 316 n.5 (“Toda y ’s dec ision does not aff

ect the e x tent to whic h th e Gover

nment’s interest in protec ting publicly owned flag s might justify specia l measure s on their behalf

.”); S p en ce , 4 1 8 U.S. at 409 (“We have no doubt that the State or National Gover nments constitutionally may forbid any one from mishandling in an y m anner a flag that is public proper

ty .”). I t is primarily for this rea son that we find J udg e Mey ers’ s “mocking bird” analog y unpersua sive. A mocking bird (like a bald eag le) is a wild animal that belong s to the public. I t is a finite natura l resour ce, and a g overnme nt may choose to protec t it. See State v. Bartee , 894 S.W .2d 34, 41 (Tex. App.–San Antonio 1994, no pet.) (unanimous panel op. by J ohn F. Onion, J r.) (“H istory
reve als a long rec og nition of common owner s h i p i n game and wild animals and its developing subjectivity to g overnme n t al au t h o ri ty .”). To the extent that a mocking bird or bald eag le can be analog ized to a flag at all , t h ey wo uld be analog ous to a public flag

. A statute that punished the destruction of a depiction of a mocking bird or bald eag le m ight, however , raise First Amendm ent conce rns. See Johnson , 491 U.S. at 412 n.8 (“The re was no evidenc e that J ohnson himself stole the

1 0 5 flag he burned

. . . nor did the prosec ution or the arg uments in support of it depend on the theory that the flag was stolen

. . . . W e al s o emphasize that J ohnson was prosec uted only for flag desec ration—not for tre spass, disorderly conduct, or

arson.” ).JOHNSON — 28

the flag -destruc tion and criminal-mi s ch i ef statutes. The criminal-mischief aspec t of an actor ’s 1 0 6
conduct is a red herr ing in a constit utional analy sis of t he flag -destruc tion statute: by allowing for

a separ ate prosec ution and penalt y i n ad d i t ion to that authorized for criminal mischief, the flag

destruction statute e nables the State to sepa rate ly penalize the ac tor’s expression. 1 0 7

Howeve r, even if we assumed that the flag -destruc tion statute could leg itimately be applied

See Cullen v. State , 832 S.W .2d 788, 791-92 (Tex. App.–Austin 1992, pet. ref ’d) (in 1 0 6 prosec ution for the p o isoning of the historic Treaty Oak in Austin, reje cting claim that the desec ration-of

-vene rate d-objec t and criminal-mischief statutes must be re ad in pari materia to require prosec ution only under the former ). Cullen addre ssed the prede cessor to the curr ent flag

destruction statute, but its rea soning is equally applicable to the prese nt statute. The flag -destruc tion and criminal-mischief offe nses are not the same under the Bloc k b u r ge r s a me -ele ments test, and other fac tors do not sug g est that the leg islature i n t en d ed t h e offe nses proscr ibed by those statutes to be trea ted as the s ame. See id. at 792 (“The se t wo s tatutes are contained in differ ent l eg isl at i ve acts, addre ss differ ing situations, require differ ent elements of proof, and serve differ ent objectives. We believe the leg islature intended to define two separ ate offe nses with differ ent elements and differ ent levels of punishment. I t follows that section 42.09 is not a special subset of the g ener al offe nse of criminal m ischief.” ); Blockburge r v. United States , 284 U.S. 299, 304 (1932) (“[W ]here the same act or transac tion constitu tes a viol ation of t wo di stinct statutory provisions, the t est to be applied to deter mine whether there are two offe nses or only one, is whether eac h provision require s proof of a fac t which the other does not.”); Ex parte Ervin , 991 S.W .2d 804, 814 (Tex. Crim. App. 1999) (“The Blockburge r test is a useful tool f or asce rtaining leg islative intent, but it is not the only tool. Other

. . . considerati o n s [ are] rele vant to deter mining whether the L eg islature intended multipl e punishments . . . .”). We further note that the prede cessor statute at issue in Cullen also penalized the desec ration of public monuments and place s of worship or burial. See Cullen , 832 S.W .2d at 792; T E X

. P E N A L C O D E § 42.09 (West 1988). Those portions of the statute wer e later moved to the criminal mischief
s tatute to enhanc e the level of the offe nse. See T E X

. P E N A L C O D E § 28.03(f) (cu rr en t ). T h e leg islature has not, howeve r, codified a criminal-mischief enhanc ement based on destruction of the flag

. See T E X

. P E N A L C O D E § 28.03, passim.

See R.A.V. v. City of

St. Paul , 505 U.S. 377, 385 (1992) (“The proposition that a particula r 1 0 7 instance of speec h can be proscribable on the basis of one fea ture (e. g., obs cenity

) b u t n o t o n the basis of another (e. g ., opposition to the city g overnme nt) is commonplace and has found application in many contexts. We have long held, for example, that nonverba l expressive activity can be banned beca use of the a ction it e ntails, but not because of the ideas it expresses—so that burning a fla g in violation of an ordinanc e ag ainst outdoor fires could be punishable, wher eas burning a flag in violation of an ordinanc e ag ainst dishonoring the flag is not.”).JOHNSON — 29

to conduct that amounted to criminal mischief (whe ther expressive or not), the statute would still

cover a wide swath of expressive conduct that does not amount to criminal m ischief. Even under
that assumption, t h en , t h e unconstitutional applications of the statute would, by its text , be substantial in relation to its plainly leg itimate sweep.
E. Sw eep of the Statute in Actual F act
As for whether the application of the flag -destruc tion statute t o ex p re s sive activity is signific ant in actua l fac t , we n ee d look only to the numerous prosec utions of flag desec ration involving phy sical alteration or damag e to a fla g that are documented by judicial decisions. By 1 0 8

See Snider , 752 F.3d a t 1154-55 (plaintiff a ttempted to set fire to fla g in his front y ard, 1 0 8 then shredde d it and threw it into the street; office r conce ded he violated plaintiff’s First Amendment rig hts); Janssen , 219 Wis

. 2d at 367-68, 580 N.W.2d a t 262 (def ecating on a flag and leaving it on the steps to a g olf course clubhouse); Eichman , 496 U.S. at 312 (setting fire to sever al United States flag s on the steps of the United States Capitol while protesting various aspec ts of the Gover nment’s domestic and fore ign policy ); United States v. Cary , 897 F.2d 917, 919-21 (8th Cir.), vacate d , 498 U.S. 916 (1990) (at protest of the decision of the United States Gover nment to send 3,200 troops to Hondura s, an unidentified woman came up to defe ndant, handed him a flag , and told him to light it, wh i ch he did); United States v. Haggerty , 731 F. Supp. 415, 416 (W.D. Wash.), aff’ d s u b n o m. , Eichman , 496 U.S. 310 (1990) (f lag burned a t a political demonstration in front of a post of fice to protest t he Flag Protection Act of 1989) ; Johnson , 491 U.S. at 399 (burning flag as part of protest ag ainst Reag an administration); Bowles v. Jones , 758 F.2d 1479- 80 (11th Cir. 1985) (burning flag at Communi st rally as a protest ag ainst U.S. imperialism); Monroe v. State Court of Fulton County , 739 F.2d 568, 570-71 (11th Cir. 1984) (flag burned at protest aga inst U.S. involvement in I rania n aff airs); People v. Sutherland , 9 I ll. App. 3d 824, 826, 292 N.E.2d 746, 747 (1973) (flag burned to protest ag ainst the invasion of Cambodia a nd the dea th of the four students at K ent State); State v. Farrell , 209 N.W.2d 103, 104 (I owa 1973 ) (f l ag b u rned at protest of the I ndo-China W ar and the prese nce of R.O.T.C. on the campus); United States v. Crosson , 462 F.2d 96, 98 (9th Cir. 1972) (flag burned by war protestors in R.O.T.C. building); Joyc e v. United States , 454 F.2d 971, 977-80 (D.C. Cir. 1971) (fla g torn by

person in g roup of pr otestors at I naug uration Da y Parade ); Dee ds v. State , 474 S.W .2d 7 1 8 , 7 1 9 -20 (Tex. Crim. App. 1971) (flag burned at crow ded public park in Dallas); People v. Burton, 27 N.Y.2d 198, 201, 265 N.E.2d 66, 66 (Ct. A pp. 1970) (Afte r aff

ix ing a flag to a vaca nt building and setting it on fire, the defe ndant said, “I am g oing to burn J ohnson, Humphrey and Wallace just as I am g oing to bur n this flag .”); State v. Turner , 78 Wash. 2d 276, 277-78, 283- 84, 474 P.2d 91, 93, 96 (1970) (flag burned at g ather ing by org anization having to do with the social and economic reha

bilitation o f a larg e economica lly depre ssed are a of Seattle); United States v. Ferguson , 302 F. Supp. 1111, 1112 (N.D. Cal. 1969 ) (flag burned at rally on the front steps of aJOHNSON — 30

contra st, prosec utions involving even arg uably non-expressive conduct appea r from the case s to be

uncommon as a historical matter. Even prosec utions that involve expressive activity that also 1 0 9
constitutes cr i m i n al m i s ch ief appea r to be a small proportion of the case s. I n fac t, we are not 1 1 0

awa re of a single case since Eichman that has resulted in a final conviction under a flag destruction

statute. Such prosec utions have been terminated in the defe ndant’s favor beca use the statute violated
the consti tution in one way or another or, i n one case, because the court declined to addre ss the 1 1 1
constitutionalit y

of the statute a fter f

inding the e vidence insufficient to support the conviction. 1 1 2

F . P atte rn of Non -Enf

orce m ent
We turn now to the State’s co n tention that the Texas flag -destruc tion statute will not be

United States District Courthouse). See also State v. Jimene z , 828 S.W .2d 455 (Tex. App.–El Paso 1 9 9 2 ) (not setting out the alleg ed conduct but ruling Texas flag -destruc tion statute unconstitutional)

.

See Commonwealth v. Forrey , 108 A.3d 895, 897 (Pa. Super. 2015) (trooper s discovere d 1 0 9 larg e debris trail—which included a United States flag —extending from defe ndant’s truck to a wooded are a, flag -dese cra tion char g e dismiss ed pretria l); Bricke r , 542 Pa. at 237-38, 244, 666 A.2d at 259, 262 (dirty and wrinkled flag being used at entra nce to home as a

rtistic decor ation, holding statute unconstitutional as applied beca use artistic expression is protec ted by the First Amendment); C a r p en t er , 597 So. 2d at 758 (soiled flag wadde d up in pocket, acquittal on appea l beca use desec ration was not in public); Mey ers , 23 I ll. App. 3d at 1045, 321 N.E.2d at 143 (per son ly ing on flag in public park, acquittal on appea l beca use he did not “tra mple” the flag ); Cincinnati v. Bunch , 32 Ohio App. 2d 161, 161-62, 288 N.E.2d 854, 855 (1971) ( defe ndant “spre ad the flag out on the g round and place d his persona l proper ty on top of it,” conviction for defiling the flag upheld). The last two case s woul d n ot appea r to be prosec utable under the curr ent Texas statute, and it is not entirely clea r whe ther the f

irst three c ases c ould be.
S ee Janssen , 219 Wis

. 2d at 367, 580 N.W.2d at 262 (flag stolen from a g olf course ); 1 1 0 Haggerty , 731 F. Supp. at 416 (bur ned fla g belong ing to the U nited Sates Postal Service).
S ee s u p r a nn.108-10; infra n.119. The State cites Milligan , a fede ral district court 1 1 1 opinion, which found no First Amendment violation, but the opinion held that the statute was void for va g ueness in violation of the F ourtee nth Amendment. 479 F. Supp. 2d at 1008- 14.

Carpenter , 597 So. 2d at 758. 1 1 2JOHNSON — 31

unconstitutionally applied in a sig nificant number of instance s beca

use there is curre ntly a pattern
of non-enf

orce ment. Essentially , the State’s arg ument is that the Supreme Court’s opinions in Texas

v. Johnson and United States v. Eichman have deter red and will continue to deter prosec utors from bring ing flag -destruc tion prosec utions that would violate the First Amendment. Concomitantly , the
State contends, these case s have cause d the aver ag e citizen to u n derstand that the United States
Constit ution protec ts the rig ht to burn the United States flag to express an idea, so the aver ag e citizen
will not fee l constraine d by the statute from eng ag ing in such conduct. I t is no doubt true that the 1 1 3 Supreme Court’s decisions in Johnson and Eichman have deter red p ro secutions for flag
desec ration and that those decisions have raised awa rene ss among members of the g ener al public 1 1 4
that cer tain disrespectful conduct toward the United States flag is protec ted by the United States
Constit ution. But we are n o t p er s u ad ed that the deter rent eff ect and popular understanding of Supreme Court decisions are valid fac tors in deter mining whether a statute is unconst i t u t i o nally
overbr oad.

T he State’s arg ument involves a sort of bootstrapping

. I n eff ect, the State is ar gu i n g t h at

See Milligan , 479 F. Supp. 2d at 1007 (conte nding that “[i] t is rea sonable to believe that 1 1 3 the aver ag e citizen g ener ally understands that burning a flag as part of expressive speec h or conduct is protec ted by the United States Constit ution” and such g ener al knowledg e “would be sufficie nt to dispel any

possible chilling ef

fec t”).
See W insness v. Y

ocom , 433 F.3d 727, 736 (10th Cir. 2006) (“I n this case , Mr. Bla

y lock 1 1 4 h as fore sworn any intention to bring criminal char g es ag ainst indivdiuals who alter the fl ag fo r expressive purposes. His superior, Mr. Yocom, has g one further , cate g orica lly announcing that his office will bring no prosec utions under the statute.”); Lawson v. Hill , 368 F.3d 955, 956-57 (7th Cir. 2004) (“At some point [t he prosecutor] lear ned about the d em o n strations and tol d both the pol ice chief of Goshen, and the county ’s s heriff , not to investiga te whether t he st udents had v i o l at ed the flag -dese cra tion statute. We do not know when any one was last prosec uted under the statute. We know only that [t he prosec utor] has never prosec uted any one under it and is unawa re of any prosec utions in ot her c ounties.”).JOHNSON — 32

cer tain applications of the flag -destruc tion statute are so obviously unconstitutional that prosec utors
will steer clear of t hem, and beca use of that, the ac tual unconstitutional applications of the statute
will not be substantial in rela tion to the statute’s leg itimate swee p. The State also sug g ests that there
will be no chilling eff

ect from these unconstitutional applicatio n s b e c a u s e th e p u b lic understands that
the courts will not enfor ce them. The State’s arg ument is somewhat like an arg ument advanc ed in a capital murder appea l a decade ag o. The defense arg ued that the court should fi nd the evidence

to be insufficient to show future dang erousne ss beca use the defe ndant was so obviously dang erous
that the prison authorities would plac e him in lockdown to preve nt him from hurting any one. 1 1 5 Although w e found tha t defe ndant’s ar g ument to be “inge nious,” we rejec ted i t beca use “it would
stand the capital punishment scheme on its head, g iving relief to the most dang erous offe nders.” 1 1 6

L ikewise, the State’s arg ument would seem to stand First Amendment j u ri sprudenc e on its head, upholding a statute on the basis that its unconstitutional applications are so glaring ly obvious that

prosec utors will avoid them and spee ch will not be chilled by them.

Moreove r, th e S upreme Court has clea rly stated that it will not uphold a statute “mer ely
beca use the Gover

nment promised to use it responsibly .” “The First Amendment protec ts ag ainst 1 1 7
the Gover nment; it does not leave us at t he mercy of noblesse obli ge .” And so long as a statute 1 1 8

rema ins on the books, the threa t of “irre sponsible” use rema ins, beca us e a prosec utor or police
office r may be insufficiently instructed on the issue, beca use the authorities (wrong ly ) perc eive the

Masterson v. State , 155 S.W .3d 167, 172-74 (Te x . Crim. App. 2005). 1 1 5
Id. at 174. 1 1 6
Steve ns , 559 U.S. at 481. 1 1 7
Id. 1 1 8JOHNSON — 33

conduct to fall outside constitutional protec tion, or beca use of other rea sons. The case law contains
post- Eichman examples of su ch occur renc es with respe ct to flag -dese cra tion statutes. By

1 1 9 depending on the Supreme Court’s “as- applied” jurisprudenc e to reduc e the overbr eadth of a statute,
the State shifts to a signific ant deg ree the deter mination of constitutional questions from the courts

to the prosec utors, the police, and the p u b l i c. But we should not expect persons in those latter positions t o be the pr imary interpre ters of the First Amendme nt: Arg uably , people are alway s “on notice” t h at constitutionally protec ted conduct is exempt from prosec ution, and law enfo rcement officia ls could alway s look to the First Amendment to deter mine when a law should not be enfor ced beca use it would interfe re with constitutionally protec ted activity

. . . . Be caus e First Amendment

See Phelps v. Powers , 63 F. Supp. 3d 943, 945-46, 952-57 (S.D. I owa 2014) (“A ccor ding 1 1 9 to Petitioners [m ember s of Westboro Ba ptist Church], Chief Powers told Eliz abeth Phelps that the flag desec ration statutes would be enfor ced ag ainst the picketer s. As a result o f C h i ef P o wers’s statement, members of the churc h ref raine d from putting the flag on the g round or hang ing it f rom their bodies.” The court found the I owa flag -dese cra tion statute to be unconstitutionally overbr oad in violation of the First Amendment.); Snider , 752 F.3d at 1154 (I n 2009, the defe ndant was arr ested for flag desec ra t i o n fo r shredding an Americ an flag in his front y ard and held in jail for approximately

eig ht hours beca

use both the ar

resting office r and the prosecutor “were unawa re of the United Sta tes Supreme Court decisions in Texas v. Johnson and United States v. Eichman. ” Upon being informed of Johnson by a local repor ter, the prosec utor dismiss ed the case .); Gooding
v. Ketcher , 838 F. Supp. 2d 1231, 1234-35 (N.D. Okla. 2012) (I n 2009, a United States flag was used by the plaintiff as a

prop during a band pe rfor mance , the plaintiff wa s arr ested a nd imprisoned for thirteen hours until he posted bond, formal char g es wer e never filed, and the sheriff commented in support of ar

rest, “I was shocke d and disturbed by this that somebody would think they could g et by with that

. . . . People in this part of the United States are very proud of the flag and what it stands for and the men and women who have lost their lives t o p ro t ec t that flag

. I t’s not an object to be stomped on or drug acr oss the floor.”) ; Milligan , 479 F. Supp. 2 d at 9 9 7 (T wo defe ndants wer e prosec uted in 2006 for flag desec ration or disorderly conduct with respe ct to the flag for fly ing flag upside-down in protest. One d ef en d an t was found not g uilty by a magistrate on the basis that the statute was unc onstitut ional as applied. The other de fenda nt’s case was dismissed one day befor e trial.); Janssen , 219 Wis

. 2d at 367-68, 580 N.W.2d at 262 (I n 1996, the defe ndant was prosec uted for f l ag d es ec ra tion afte r he defe cate d on flag belong ing to g olf course
. Trial court dismiss ed the prosec ution, and t h e ap p el late courts aff irmed.); Bricke r , 542 Pa. at 237-38, 246-47, 666 A.2d at 258-59, 263 (I n 1993, the defe ndant was pros ec u t ed for flag desec ration afte r a police office r discovere d a dirty and wrinkled flag being used in a doorwa y inside the home. Trial court quashed the cha rg e, and a ppellate c ourt aff

irmed.).JOHNSON — 34

doctrines are often intricate and/or am orphous, people should not be char g ed with notice of First Amendment jurisprudenc e
. . . . Moreove r, an attempt to char g e people with n o t i ce of First Amendment case law would undoubtedly serve to chill fre e expression. 1 2 0

Fur ther, in explaining why it believes appellee ’s conduct in this case was not expressive, the
State offe rs rationale s that could re adily lend themselves to the hara ssment of persons eng ag ing in
protec ted expression. The State claims t h at t h ere was “no element of speec h” in appellee ’s 1 2 1
conduct beca

use his conduct “wa s random in nature .” But the act of throwing down a flag in ang er
could ea sily be protected ex pression. The S tate also contends that appellee ’s conduct was non- 1 2 2 expressive beca

use he threw down a flag that belong ed to a differ ent store than the one he was ang ry
with. That conclusion depends on statements made by appellee to the police afte r they confr onted
him about his conduct in rela tion to the flag

. I f the expressive nature of a person’ s conduct depends

upon what he later say s when confr onted by the police about it, then individuals who have eng ag ed

Long , 931 S.W .2d at 295 (cr iticiz ing relianc e on lang uag e in an aff irmative defe nse that 1 2 0 made it a defe nse if the actor eng ag ed in activity “in support of constitutionally

. . . protec ted rig hts” beca use such lang uag e would require citizens and law-e nforc ement offi c ia ls “ to b e F ir st Amendment scholars” ). See also Janssen , 219 Wis

. 2d at 382 n.13, 580 N.W.2d at 268 n.13 (“[A] construction which by its very lang uag e limit s a statute’s application to speec h and conduct that is not protec ted by the First Amendment is both impractica l and constitutionally suspect

. . . . [I ]t simply exchang es overbr eadth for vag ueness.” ) (quoting in part from L aure nce H. Tribe, A M E R I C A N C O N S T I T U T I O N A L L A W , § 12-29, at 1031 (2d e d. 1988), interna l quotation marks omitted).

Although the case is befor e us on a fac ial ch al l enge to the statute, “we can look to the 1 2 1 prosec ution befor e us as evidenc e of the rea l dang er posed by the statute.” Thompson , 442 S.W .3d at 350 (c iting Steve ns , 559 U.S. at 480).

See Joyc e , 454 F.2d at 980 (“When all this is added to the unexplained tear ing which 1 2 2
marre d, injured, and disfigur ed the flag , it was rea sonable to conc lude that J oy ce intende d there by publicly to show his disrespec t and scorn for the flag and that he estee med it to be low and worthless. That is the normal infere nce from an act of intentionally tear ing an article

. I t is the c onclusion that
rea sonable people rea ch countless times a day in the activities of ordinary life when they see a person rip something a

part, throw pa

rt of it to the g round and te ar the rema inder.” ).JOHNSON — 35

in expressive flag -dama g ing conduct can never theless be subject to arr est and detention pending an investiga tion reg arding whether the conduct was in fac t protec ted ex pression. The State a rg ues 1 2 3
that the public clea

rly understan d s t h at t h e C onstitut ion protec ts the rig ht to damag e a flag as a

means of expression, but howeve r clea r that public understanding may be, the ruling soug ht by the
State today would cloud that understanding —potentially re- introducing the very chilling eff ect that
the State claims ea

rlier de cisions have e liminated.

III. CONCLUSION
“The case is made difficult not beca use the principles of its decision are obscure but beca use
the flag involved is our own.” We conclude that the Texas flag -destruc tion statute, by its text and 1 2 4

in actua l fac t, prohibits a subst antial amou n t of activity that is protec ted by the First Amendment, judge d in rela tion to its leg itimate swee p. Consequently , we hold that the Texas flag -destruc tion

statute is fac ially invalid beca use it is unconstitutionally overbr oad in violation o f the First
Amendment. We af

firm the judg ments below.
Deliver ed: Octobe r 7, 2015 Publis h

The Supreme Court has sug g ested that its conce rns are amplified when First and Four th 1 2 3 Amendments fre edoms intersec t. See Maryland v. Macon , 472 U.S. 4 6 3, 468 (1985) (“The First Amendment imposes specia l constraints on sear ches for an d s eizures of presumptively protec ted materia l and requires that the Fourth Amendment be applied with ‘scr upulous exactitude’ i n such circ umstances.” ).

Barnette , 319 U.S. at 641 (re g ulation r equiring school children to salute Americ an fla g 1 2 4 and re cite pledg e of a lleg iance violates First a nd Four teenth Amendme nts).