Court of Criminal Appeals

P.O. BOX 12308, CAPITOL STATION

AUSTIN, TEXAS 78711

FILE COPY

ABEL ACOSTA

CLERK

(512)463-1551

SIAN SCHILHAB

GENERAL COUNSEL

(f 13) U.J WW

SHARON KELLER

PRESIDING JUDGE

LAWRENCE E. MEYERS

CHERYL JOHNSON

MIKE KEASLER

BARBARA P. HERVEY

ELSA ALCALA

BERT RICHARDSON

KEVIN P. YEARY

DAVID NEWELL

JUDGES

Rl£DIN COJT 0? A?3L^S

i2ir Corf ofAppealsDisra

October 07, 2015

12th Court Of Appeals Clerk

Cathy Lusk

1517 W. Front, Room 354

Tyler, TX 75701

* DELIVERED VIA E-MAIL *

County Attorney

Houston County

100N6th

Crockett, TX 75835

Carolyn Rains

District Clerk

POBox 1186

Crockett, TX 75835

* DELIVERED VIA E-MAIL *

Re: STATE vs. JOHNSON, TERENCE

CCA No. PD-0228-14

Trial Court Case No. 12-06-00189-CR

Joshua Thomas Liles

800 N. Mallard St.

Palestine, TX 75801

* DELIVERED VIA E-MAIL *

Amber N. Bewley

Assistant County Attorney

401 E. Houston Ave., 2nd Floor

Crockett, TX 75835

* DELIVERED VIA E-MAIL *

COA No. 12-12-00425-CR

The court has issued an opinion on the above referenced cause number

Sincerely,

Abel Acosta, Clerk

Supreme Court Building, 201 West 14th Street, Room 106, Austin, Texas 78701

Website www.txcourts.gov/cca.aspx
FILED IN COURT OF APPEALS

12tri Court of Appeals District

OCT 082015

TYLER TEXAS

PAM ESTES. CLERK

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-0228-14

THE STATE OF TEXAS

v.

TERENCE JOHNSON, Appellee

ON STATE'S PETITION FOR DISCRETIONARY REVIEW

FROM THE TWELFTH COURT OF APPEALS

HOUSTON COUNTY

KELLER, P.J., delivered the opinion of the Court in which JOHNSON,

KEASLER, HERVEY, ALCALA, and RICHARDSON, JJ., JOINED. ALCALA, J., filed a

concurring opinion. MEYERS, J., filed a dissenting opinion. Yeary, J., filed a dissenting

opinion. NEWELL, J., dissents.

Twenty-six years ago, the United States Supreme Court held that the prosecution ofGregory

Lee Johnson under the Texas flag-desecration statute for burning an American flag violated the First

Amendment.1 Texas has since revised and renamed the statute, which now provides in part:

A person commits an offense if the person intentionally or knowingly damages,

Texas v. Johnson, 491 U.S. 397 (1989).
JOHNSON — 2

defaces, mutilates, or burns the flag of theUnited States orthe State ofTexas.2

We hold that the statute is invalid on its face because it is unconstitutionally overbroad in violation

ofthe First Amendment.

I. BACKGROUND

A. The Incident

Video-camera surveillance showed two men and one woman walking on a covered sidewalk

next to a building. One man jumped towards a hanging United States flag. Then the second

man—appellee—reached andjumped for the flag and caused the flag and its staff to come off its

postinto hishand. Appellee thenthrew theflag andits staffintothe street. At almost thesame time

that appellee threw the flag into the street, the other man knocked over flower pots along the

sidewalk. Upon approaching the surveillance camera, appellee made various hand gestures and

walked out of view.

In a recorded interview that occurred later, appellee explained that he threw the flag because

he was "mad." He claimed that he was upset because of racial remarks made about his mother by

a local merchant.

B. Trial Proceedings

As a result of this incident, appellee was charged by information with violating the Texas

flag-destruction statute, TexasPenal Code§42.11. Theinformation allegedthat,on or aboutApril

29,2012, appellee did"[ijntentionallyorknowingly damage, deface,or mutilatea flagoftheUnited

States by throwing the flag onto the ground/roadway of Highway 19." The information further

alleged that this act was not done in conformity with statutes relating to the proper disposal of

Tex. Penal Code § 42.11(a).
JOHNSON — 3

damaged flags.

Appellee filed amotion to dismiss theinformation. Atthehearing onthemotion to dismiss,

theparties presented argument onthe constitutionality of the flag-destruction statute, and theState

introduced the surveillance video and the recording of appellee's interview.

The trial judge ultimately granted the motion to dismiss. In her order, the trial judge

observed that appellee couldhavebeencharged with criminal mischiefunderTexas Penal Code §

28.03, but, becausehis actions involvedthe United States flag, officers chargedhim under § 42.11.

Citing Texas v. Johnson1 and UnitedStates v. Eichman,4 thetrial judge concluded, "[Statuteswhich

criminalize behaviorbecause it specifically prohibits acts againstthe flag of theUnitedStateshave

consistently beenfound to be unconstitutional due to the restriction on theConstitutional rights to

free speech and expression." Although Texas amended its statuteafter the United States Supreme

Court handed down Texas v. Johnson, the trial judge concluded that the current statute contains

language similar to the federal statute in Eichman, in which the Supreme Court found a First

Amendmentviolation. The trialjudge alsorejectedthe State's argumentthat thedefendant's actions

were not speech. "If an action such as burning the flag is protected speech," the trial judge

explained, "the action of throwing a flag to the ground canalsobe protected] speech. Non-verbal

action is expressive, [and] the government maynot prohibitexpression simplybecause it disagrees

with the message or the way it is expressed." While the trial judge found the mistreatment of the

United States Flag to be "personallyappalling," she concluded that she was "bound to follow the

rulings of higher courts."

3See supra n.1.

4 496 U.S. 310(1990).
JOHNSON — 4

C. Appeal

The Stateappealed. It contended thatthe statute was constitutional both on itsface and as

applied to appellee. Withrespect to appellee's facial challenge, the State contended that appellee

had the burden to establish the statute's unconstitutionality and failed to meet that burden. The State

contended that appellee had "not presented any evidence, cases, or arguments establishing [the

statute's] unconstitutionality, withthe exception of casesthatneverreachedtheissueofwhether the

statute inquestion wasunconstitutional onitsface." With respect toappellee'sas-applied challenge,

the Statecontendedthat appellee's conductwasnot expressivebecauseanyone observing his actions

wouldbelievemerely thathe wasvandalizing thehardware storethatdisplayed theflagandbecause

nothing suggested that appellee wascommunicating anymessage atall. Partofthereason theState

believed appellee's conduct was not expressive was that he told the police that he was angryat a

merchant from a different store from the one whose flag he vandalized.

The court of appeals rejected appellee's claim that the flag-destruction statute was

unconstitutional as applied. It concluded that appellee's conduct was not sufficiently imbuedwith

elements ofcommunication so as to implicate theFirstAmendment.5 Butthe courtof appeals found

that § 42.11 was unconstitutional on its face because it was overbroad in violation of the First

Amendment.6 In arriving at its holding, the court researched cases in Texas and other jurisdictions

that were handed down after Texas v. Johnson and United States v. Eichman, and the court "found

5 State v. Johnson, 425 S.W.3d 542, 549 (Tex. App.-Tyler 2014). Judge Yeary's dissent

says thatthe"statutemostcertainly wasapplied constitutionally underthe circumstances presented

here." For reasons discussed later, we do not think that conclusion is self-evident. But appellee did

not file a cross-petition complaining about the court of appeals's disposition of his as-applied

challenge, so we have no occasion to resolve that claim.

6 Id. at 550-54.
JOHNSON — 5

no casein which an individual was prosecuted under a flagdesecration statute that was determined

to be both constitutional on its face and as applied."7 The court of appeals acknowledged that the

lack of authority relating to the prosecution of individuals for flag desecration arguably shows a

patternof non-enforcement, but the courtconcluded that the statutewas"notsufficiently narrow to

preventa chillingeffecton the exercise of FirstAmendment freedoms" andthat the court was"not

permitted to uphold anunconstitutional statute, even ifthere are promises to use itresponsibly."8

II. ANALYSIS

A. The Overbreadth Doctrine

The First Amendment protects, among other things, the freedom of speech.9 The First

Amendment right to freedom of speech applies to the states by virtue of the Fourteenth

Amendment.10

Withrespectto constitutional provisions otherthanthe FirstAmendment, a facial challenge

to the constitutionality of a statute can succeed only when it is shown that the statute is

unconstitutional in all of its applications.11 And usually, a defendant does not have standing to

7 Mat 551-52.

8 Id. at 553.

9 U.S. Const, amend. I ("Congress shall make no law . . . abridging the freedom of

speech.").

10 West Virginia BoardofEducation v. Barnette, 319 U.S. 624, 638-39 (1943).

1' Washington State Grange v. Washington State Republican Party, 552U.S.442,449 &n.6

(2008); State v. Rosseau, 396 S.W.3d550, 557-58 (Tex. Crim. App. 2013). Seealso United States

v. Stevens, 559 U.S. 460, 472-73 (2010).
JOHNSON — 6

challenge astatute on the ground that itmay be unconstitutionally applied to the conduct ofothers.n

But under the First Amendment's "overbreadth" doctrine, a law may be declared unconstitutional

on itsface, evenif it mayhave some legitimate application and evenif the parties before the court

were not engaged in activity protected by the First Amendment.13 "Ordinarily, the principal

advantage oftheoverbreadth doctrine fora litigant is thatit enables himtobenefit from thestatute's

unlawful application tosomeone else."14

The overbreadth doctrine is "strong medicine" that is used "sparingly and only as a last

resort.15 The overbreadth of a statute must be "substantial, not only in an absolute sense, but also

12 County Court ofUlster, N. Y. v. Allen, 442U.S. 140,155 (1979); Broadrickv. Oklahoma,

413U.S.601,610 (1973). Thisgeneralruleofstanding is not the sameas thejurisdictional "injuryin-fact" standing requirement of Article LU of the United States Constitution. The injury-in-fact

requirement entails a showing that aparty has apersonal stake inthe outcome ofthe controversy by

requiring that the party's interest be "concrete and particularized" and "actual orimminent" rather

than conjectural orhypothetical. Susan B. Anthony List v. Driehaus, 134 S.Ct. 2334,2341 (2014).

A prosecution under an allegedly unconstitutional law—like in this case—clearly satisfies that

requirement because appellant has been arrested and prosecuted. Id. at 2342 (observing that "an

actual arrest, prosecution, or other enforcement action" is notrequired to establish injury in fact so

longasthethreatofsuchissufficiently imminent); Secretary ofMarylandv. Joseph H. Munson Co.,

467 U.S. 947, 954-55 (1984) (threatof prosecution wassufficient to establish injury in fact). The

principle that parties may not assert the unconstitutionality of a law as to others is a prudential

standing requirement. Munson, 467U.S. at955("Inaddition tothelimitations onstanding imposed

by Art. ILT's case-or-controversy requirement, there are prudential considerations that limit the

challenges courts arewilling to hear" including that the party"mustassert his ownlegal rights and

interests, and cannot rest his claim to relief on the legal rights or interests of third parties."). The

jurisdictional injury-in-fact requirement hasno exceptions in federal court, butprudential standing

requirements have been relaxed "where competing considerations outweigh any prudentialrationale

against third-party standing" suchas in FirstAmendment overbreadth claims. Id. at 956-58.

13 Stevens, 559 U.S. at 473; Sabriv. United States, 541 U.S. 600, 609-10 (2004).

14 Board ofTrustees v. Fox, 492U.S. 469, 483 (1989) (emphasis in original).

15 New York State Club Ass'n v. City ofNew York, 487 U.S. 1, 14 (1988); Broadrick, 413

U.S. at 613. See also Exparte Thompson, 442 S.W.3d 325, 349 (Tex. Crim. App. 2014).
JOHNSON — 7

relative to the statute's plainlylegitimate sweep."16 The statutemustprohibita substantial amount

of protected expression,17 and the danger that the statute will be unconstitutionallyapplied must be

realistic18 and not based on "fanciful hypotheticals."19 The person challenging the statute must

demonstrate from its text and from actual fact "that a substantial number ofinstances exist in which

the Law cannot be applied constitutionally."20 The Supreme Court "generally do[es] not applythe

'strong medicine' of overbreadth analysis where the parties fail to describe the instances ofarguable

overbreadth of the contested law."21 Moreover, the overbreadth doctrine is concerned with

preventingthe chillingof protectedspeechandthatconcern"attenuatesas the otherwiseunprotected

behavior thatit forbids the State to sanction moves from 'pure speech' toward conduct."22 "Rarely,

if ever, will an overbreadth challenge succeed against a law or regulation that is not specifically

addressed to speech or to conduct that is necessarily associated with speech (such as picketing or

demonstrating)."23

Judge Yeary's dissenting opinion suggests that, as a matter ofstate law, we might be free to

refuse to entertain overbreadth claims. We do not agree. The dissent relies upon the United States

16 'UnitedStates v. Williams, 553 U.S. 285, 292 (2008).

17 Ashcroft v. Free Speech Coalition, 535 U.S. 234, 244 (2002); Thompson, 442 S.W.3d at

349-50.

18 Regan v. Time, 468 U.S. 641, 651 n.8 (1984); Thompson, 442 S.W.3d at 350.

19 Stevens, 559 U.S. at 485.

20 New York State Club Ass'n, 487 U.S. at 14.

21 Washington State Grange, 552 U.S. at 449-50 n.6.

22 Virginia v. Hicks, 539U.S. 113, 124(2003).

23 Id.
JOHNSON — 8

Supreme Courtcaseof Virginia v. Hicks24 andthe Utah Supreme CourtcaseofProvo City Corp. v.

Willden.25 ButHicks itself recognized that whether the claimed overbreadthis substantial enough

to result in facial invalidity involves "not standing, but 'the determination of [a] First Amendment

challenge on the merits.'"26 And in Secretary ofMaryland v. Joseph H. Munson Co., the United

States SupremeCourt made it clear that the overbreadthdoctrineis in fact a part of substantiveFirst

Amendment law:

[T]he Secretary urges that Munson should not have standing to challenge the statute

as overbroad because it has not demonstrated that the statute's overbreadth is

"substantial." The Secretary raises a point of valid concern. . . . The Secretary's

concern, however, is one that is more properly reserved for the determination of

Munson's First Amendment challenge on the merits. The requirement that a statute

be "substantially overbroad" before it will be struck down on its face is a "standing"

question only to the extent that if the plaintiff does not prevail on the merits ofits

facial challenge and cannot demonstrate that, as applied to it, the statute is

unconstitutional, it has no "standing" to allege that, as applied to others, the statute

mightbe unconstitutional.27

Moreover, New York v.Ferber contains what appears to be an explicit statement that state courts are

bound to apply the First Amendment overbreadth doctrine: "A state court is not free to avoid a

proper facial attack on federal constitutional grounds. ... By the same token, it should not be

compelled toentertain anoverbreadth attack when not required to do so bythe Constitution."28

24 539 U.S. 113(2003).

768 P.2d 455 (Utah 1989). 25

26 539 U.S. at 120 (quoting Munson, bracketed material in Hicks).

27 467 U.S. at 958-59 (citations omitted). See also Sabri, 541 U.S. at 610 (citing

"Monaghan, Overbreadth, 1981 S. Ct. Rev. 1, 24 (observing that overbreadth is a function of

substantive First Amendment law)").

28 458 U.S. 747, 767 (1982) (citing Bigelow v. Virginia, 421 U.S. 809, 817 (1975)).
JOHNSON — 9

The dissent relies on the following passage inHicks for the proposition that states may adopt

theirownstanding requirementsforoverbreadth challenges: "WhetherVirginia'scourtsshould have

entertained this overbreadth challenge is entirely a matter of state law."29 But these comments

appearto relate to the issue of whethera state is bound to apply the narrowstanding requirements

that exist in federal court, or whether a state may instead have less stringent standing requirements.

The Supreme Courtexplained that "the problem" with theCommonwealth's proposal wasthat the

Court wasreviewing the decision of a state supreme court and state courts are not bound "by the

limitations" of a case or controversy or other federal rules ofjusticiability even when they address

issues offederal law.30 The cited comments, therefore, seem to be a recognition ofthe unexceptional

proposition that states can provide defendants more protection than federal law provides.31

The dissent also relies on a passage from Willden32 that appears, on itsface, to support the

dissent's position. But in that case, the Utah Supreme Court also seems to suggest that a state's

leeway with respect to standing involved whether the state could have less stringent standing

requirements than those in federal court.33 Regardless of the ambiguity, theSupreme CourtofUtah

29 539 U.S. at 120 (emphasis in original).

30 Id.

31 See Florida v. Powell, 559 U.S. 50, 59 (2010).

32 768 P.2d at 455-56 ("[T]he federal rules on standing ... are not binding on state courts,

and the article HI constitutional restrictions and federalistic prudential considerations that have

guidedthe evolution of federal courtstanding law are not necessarily relevantto the development

ofthe standing rules that apply to Utah's state courts.")

33 See id. at 456-57 (remarking on the "rather narrow standing doctrines developed by the

federalcourts" andquotingthe SupremeCourt's recognitioninNewYork State ClubAss'n, 487U.S.

at 8 n.2, that state courts may "issue advisory opinions or . . . determine matters that would not

satisfythe more stringent requirement in the federal courtsthat an actual 'case' or 'controversy' be
JOHNSON —10

ultimately applied the overbreadth doctrine and found the statute before it to be facially

unconstitutional.34

InJaynes v. Commonwealth, theSupreme CourtofVirginia addressed andrejected theexact

argument made inJudge Yeary'sdissent.35 TheVirginia courtremarked that,onitsface andwithout

context, the cited passage from Hicks "appears to support the rule of standing advocated by the

Commonwealth. In a nutshell, that rule would be that state courts are not required to apply the same

standing requirements to a claimant who raises a FirstAmendment overbreadth challenge to a state

statute in a state court as would be accorded a claimant in a federal court considering a similar First

Amendment overbreadth claim."36 "However," the court responded, "when viewed in the context

of the standing issue actually presented in [Hicks], and the longstanding Fourteenth Amendment

jurisprudence bywhich FirstAmendment rights aremadeapplicable in statecourtproceedings, we

disagree with theCommonwealth's arguments."37 Virginia's high court noted this colloquy, which

took place in the Hicks case during oral argument beforethe United StatesSupreme Court:

QUESTION: The issue is whether - whether [Virginia] adopted a broader

interpretation under State law than Federal law would require.

[ANSWER]: That is correct. A - a State may well be able to adopt a broader

interpretation of standing than this Court requires, but it cannot adopt a narrower

interpretation. It cannot disregard this Court's direction thatyougive overbreadth

standingaccording to theFederal constitutional standards. . . .

presented for resolution").

34 Willden, 768 P.2d at 455, 458-59.

35 276 Va. 443, 454, 666 S.E.2d 303, 308 (2008).

36 Id. at 455, 666 S.E.2d at 309.

37 Id.
JOHNSON —11

QUESTION: And if theywere correctabout what our standingrules are, theywould

have to follow those standing rules, wouldn't they? They could not apply a narrower

... basis for standing, could they?

[ANSWER]: That is absolutely correct, Your Honor. The State supreme court has

nodiscretion todisregard this Court's application ofthe FirstAmendment through

its overbreadth doctrine?*

TheSupreme Courtof Virginiafurther observed thatthe overbreadth doctrine is a matterof

substantive First Amendment law, and as such, it is "a constitutional exception to state and federal

rules ofstanding that would otherwise limit a party to anas applied challenge to a statute."39 That

court also discussedthe facts and proceduralposture ofHicks, and it concludedthat it was clear that

in Hicks the Supreme Court addressed the issue of First Amendment standing"only in the context

by which that issue was placed before the Court: whethera state's expansion of First Amendment

standing was subject to review by federal courts."40 Analyzing the passage in Hicks where the

Supreme Court stated "[w]hether Virginia's courts should have entertained this overbreadth

challengeis entirelya matter of state law," theJaynes court foundthat "the term 'this' plainlylimits

the standingissue to what was before the Court in that case: an expansion,not a restriction, of state

court standing."41 We agree.

Moreover, it is difficult to understand how the overbreadth doctrine could ever be applied

byanycourt to invalidatea state law in its entiretyif the doctrineis not itself a federalconstitutional

38 Id. at 456-57, 666 S.E.2d at 310 (quoting Oral Arg. Tr., Virginia v. Hicks,No. 02-371, at

5 (Apr. 30, 2003)) (bracketed material and emphasis in Jaynes).

39 Mat 458, 666 S.E.2d at 310-11.

40 Id. at 457, 666 S.E.2d at 310 (emphasis in Jaynes).

41 Id.
JOHNSON — 12

doctrine that the state courts have to follow.42 This status of overbreadth as a substantive

constitutional doctrine is similarinthatrespecttoFourth Amendment expectation-of-privacy issues,

which can be characterized as involving "standing," but are more accurately viewed as part of

substantive Fourth Amendment law.43 No one would claim, for example, that a state court can

decline to entertain the Fourth Amendment claims ofan overnight guest on the ground that overnight

guests simply do not have standing in state court under state law.44

Judge Yeary's dissent attempts to draw a distinction between the substantive rule of

overbreadth and a procedural rule ofoverbreadth that accords liberalized standing. Heclaims that

hewould notchange thesubstantive rulebutwould merely restrict which litigants could successfully

bring a First Amendment overbreadth claim in state court. But we are not confronted with the

question of whether a claim confers standing sufficient to allow the individual to appear in court.

42 SeeDickerson v. UnitedStates,530 U.S. 428,438 (2000) (holding that "first and foremost

of the factors" supporting the conclusion that"Miranda is a constitutional decision" isthatthecase

applied the rule to "prosecutions arising in state courts"); NAACP v. Button, 371 U.S. 415,432-33

(1961) (recognizing the application of overbreadth doctrine to state laws and explaining that,

"[bjecause FirstAmendment freedoms needbreathing space to survive, government mayregulate

in the area only with narrow specificity").

43 SeeRakasv.Illinois,439U.S. 128,139-40(1978)(citationsomitted) (reaffirminggeneral

standing principles butstating that "this Court's longhistory of insistence that Fourth Amendment

rights arepersonal in nature has already answered many ofthese traditional standing inquiries, and

we think that definition ofthose rights is more properly placed within the purview of substantive

Fourth Amendment law than within that of standing") (citations omitted); State v. Klima, 934

S.W.2d109, 110 (Tex. Crim.App. 1996) (recognizing that"the application of Fourth Amendment

rights arepersonal in nature and are invariably intertwined withthe concept ofstanding").

44 See Minnesotav. Olson,495 U.S. 91, 96-97 (1990). See also Jaynes, 276 Va. at 458,666

S.E.2d at 311 (TheCommonwealth's view "is an untenable position because the rightto assert the

protection oftheFirstAmendment (by overbreadth orotherwise) cannomore berestricted bya state

rule ofstanding thanthe exclusionary rule applied to impermissible searches andseizures could be

limited by state evidence law.").
JOHNSON —13

This is not a civil lawsuit filed by a person seeking to invoke a court's jurisdiction on a First

Amendmentclaim.45 This case—a criminalprosecution—istheState'saction. The Statehas already

invoked the jurisdiction of the courts, with the flag-destruction statute being the basis for that

invocation. As a result, the trial court had authority to decide the case, and authority to review that

decision onappeal was conferred byChapter 44ofthe Code ofCriminal Procedure.46 Appellee has

simply defended against the State's action by substantivelychallengingthe facial constitutionality

ofthe flag-destruction statute. The trial court agreed and dismissed the information, and it is the

State that now seeks the intervention of this Court to overturn the trial court's substantive legal

decision. Ifaccepting the overbreadth doctrine as a matter ofsubstantive federal constitutional law

means anything, it means, at the least, that a criminal defendant can defend himself in a criminal

prosecution by challenging the constitutionality of the statute defining the crime with which he is

charged. The dissent says that this violates the Separation of Powers clause of the Texas

45 Nor is the present case even a habeas action, which might at least arguably be said to

affirmatively invoke a court's jurisdiction, although it might also be characterized as a vehicle for

challenging the State's criminal action, especially when invoked at the pretrial stage. See Exparte

Rieck, 144 S.W.3d 510,515 (Tex. Crim. App. 2004) (discussing differing ways ofcharacterizing the

nature of habeas proceedings).

46 See Tex. Code Crim. Proc. arts. 44.01, 44.02. The Supreme Court has recognized that

the posture of the case before the court—how the action came before it and which party is

complaining—can affect the existence ofstanding. See Hicks, 539 U.S. at 120-21 ("Because it is

the Commonwealth of Virginia, not Hicks, that has invoked the authority of the federal courts by

petitioning for a writ of certiorari, our jurisdiction to review the First Amendment merits question

is clear .... The Commonwealth has suffered, as a consequence ofthe Virginia Supreme Court's

'final judgment altering tangible legal rights,' ... an actual injury in fact—inability to prosecute

Hicks for trespass—that is sufficiently 'distinct and palpable' to confer standing under Article HI.

... We accordingly proceed 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 legal rights or interests of third

parties . . . would exclude a case such as this from initiation in federal court.") (emphasis added).
JOHNSON —14

Constitution,47 but "[t]he power to determinethe validity of an Act ofthe legislaturerests with the

Courts."48

The dissent also contends that allowing an overbreadth claim by a person who cannot show

that the statute is unconstitutional as to him invites us to assume the powerto issue advisory opinions

and that we are without power to do that. The United States Supreme Court, which recognizes

overbreadth claims, is also—under Article HI ofthe United States Constitution—without power to

render advisory opinions.49 By holding that overbreadth is an exception to a prudential rule of

standing, ratherthantojurisdictionalstanding underArticle HI,50 theSupreme Courthaseffectively

heldthatthe overbreadth doctrine doesnot giveriseto advisory opinions.51 Evenif we coulddepart

from Supreme Court precedent in deciding whether to recognize overbreadth claims, we do not see

any reason to construe "advisory opinions" to mean something different under state law than it does

in the Supreme Court's jurisprudence. There is nothing advisory or hypothetical about the

consequence of a criminal defendant prevailing on an overbreadth challenge to the statute that

47 See Tex. Const, art. H, § 1.

48 ExparteHalsted, 147 Tex. Crim. 453, 457, 182 S.W.2d 479, 482 (1944).

49 See Massachusetts v. Environmental Protection Agency, 549 U.S. 497, 516 (2007) (No

justiciable controversy exists under Article ITI of the United States Constitution when the parties ask

for an advisory opinion.).

See supra n. 12. 50

51 See also Federal Election Commission v. Akins, 524 U.S. 11, 24 (1998) (indicating the

injury-in-fact requirement of Article HIprevents advisory opinions); Savage v. Gee, 665 F.3d 732,

740 (6th Cir. 2012) (holding that overbreadth claimant must still show that enforcement of the

challengedstatuteagainsthim is actualor imminentand quotingPrime Media v. City ofBrentwood,

485 F.3d 343,350 (6th Cir. 2007): "Because overbreadth creates an exception only to the prudential

standing inquiry, the Supreme Court has made clear that the injury in fact requirement still applies

to overbreadth claims under the First Amendment.").
JOHNSON — 15

defines the charged offense—the case against him is dismissed.

B. The State's Arguments

The State contends that appellee has failed to meet his burden to show that the flagdestruction statute is substantially overbroad by its text and has a substantial number of

unconstitutional applications in actual fact. With respect to the text, the State contends that the

statuteis a legitimate content-neutral lawbecause it does not expressly restrict speech and because

it punishes any kind of damage or destruction to a United States or Texasflag, regardless of the

actor's motive. The State further contends that the amount of protected speech covered by § 42.11

is "minimal whencomparedto the non-expressive conductlawfullyprohibited" andthat anyrisk of

a chilling effect is "dwarfed bythe number oflawful applications" ofthe statute.52

With respectto whetherthe statutehas a substantialnumberofunconstitutional applications

in actual fact, the State contendsthat appelleehas failed to "provide examples of actualpeople who

have been deterred from engaging in protected speech or conduct." The State further contends that

the courtof appealsconcededthat the absenceof evidenceof prosecutionunderthis statutearguably

shows a pattern of non-enforcement.53 TheStateargues thatthe statute produces no chilling effect

because "the average citizen generally understands that burning a flag as part of expressive speech

or conduct is protected by the United States Constitution."54

The State also contends that appellee's conduct was not protected by the First Amendment

52 At oral argument, the State claimed that "almost all" ofthe conduct the statute covers is

outside the First Amendment's protection.

53 See Johnson, 425 S.W.3d at 553.

54 State's brief quoting id. at 552 (quoting Roe v. Milligan,A19 F. Supp. 2d 995, 1007(S.D.

Iowa 2007)).
JOHNSON —16

because it was not expressive:

Appellee's conductinsteadconstituted an act of criminalmischiefwithno intent to

conveyany particularized message. Indeed, according to appellee, he did not even

expectthe flag to come off its staff and into his hand when hejumped and reached

forit. Appellee attempted to explain his conduct byclaiming hewasmad[at] a local

merchant. However, in no way did his actions relay that he was angry with a local

merchant. In fact, the flag that he threw onto the highway was in front of a different

store than the one appellee claimed to be angry with. Further, there was no element

of speech in his conduct. The veryway appellee committed his crime was random

in nature.55

During oral argument, the Statesuggested that the flag-destruction statute was "reallyjust

criminal mischiefin relation to the flag." The State argued that a punishment provision with respect

to conduct directed against the flag—similar to current provisions that enhance punishment for

damage to churches and public monuments—could have been included in the criminal-mischief

statute.56 If the flag-destruction statutesweeps too broadlybypunishing someone whodamageshis

ownflag, the Statefurther argued, the statutecouldbe narrowly construedto applyonlyto situations

in which the conduct would actually constitute criminal mischief, i.e. damage to someone else's

property.57

C. The Statute

1. The Text

"The first step in overbreadth analysis is to construe the challengedstatute; it is impossible

55 Citations omitted, some capitalization changed.

56 See Tex. Penal Code § 28.03(f) (state-jail felony punishment if criminal mischief

involves "placeofworship orhuman burial, apublic monument, oracommunity centerthatprovides

medical, social, or educational programs").

57 See id. § 28.03.
JOHNSON —17

to determine whether a statute reaches toofarwithout firstknowing whatthe statute covers."58 The

Texas flag-destruction statute provides:

(a) A person commits an offense if the person intentionally or knowingly damages,

defaces, mutilates, or burns the flag of the United States or the State of Texas.

(b) In this section, "flag" means an emblem, banner, or other standard or a copy of

an emblem, standard, or banner that is an official or commonly recognized depiction

ofthe flag of the United States or ofthis state and is capable of being flown from a

staff of any character or size. The term does not include a representation of a flag on

a written or printed document, a periodical,stationery, a painting or photograph, or

an article of clothing or jewelry.

(c) It is an exception to the application of this section that the act that would

otherwise constitute an offense is done in conformity with statutes of the United

States or of thisstate relating to the proper disposal of damaged flags.59

Unlike its predecessor,60 the current statute narrowly defines what is meant by a "flag," and it

excludes certain depictions of a flag from its reach. For example, the current statute avoids past

controversiesregardingtherepresentation of a flagon clothingby explicitlyprovidingthat suchdoes

not count as a flag.61 The current statute also differs from its predecessor in that it does not require

that the actor be aware of the likely impact of his conduct on others.62

58 Williams, 553 U.S. at 293.

59 Tex. Penal Code § 42.1 l(a)-(c). The statute also provides that the offense is a Class A

misdemeanor. Id. § 42.11(d).

60 See Tex. Penal Code § 42.09(a)(3) (West 1988) ("A person commits an offense if he

intentionally or knowingly desecrates ... a state or national flag.")

61 See Smith v. Goguen, 415 U.S. 566 (1974) (United States flag sewn to the seat of

defendant's trousers); Delorme v. State, 488 S.W.2d 808 (Tex. Crim. App. 1973) (same).

62 See Tex. Penal Code § 42.09(b) (West 1988) ("For purposes ofthis section, 'desecrate'

means deface,damage,or otherwisephysicallymistreat in a way that the actorknows willseriously

offend one or more personslikely to observe or discover his action") (emphasis added).
JOHNSON — 18

The current Texas statute also circumscribes the type of conduct toward a flag that is

proscribed. The statute prohibits only physical mistreatment that alters or damages a flag. The

statute does not apply to words spoken that are critical ofthe United States or Texas flag,63 nor does

the statute apply tophysical acts that do not alter ordamage a flag.64

2. Narrowing Construction?

The federal constitution affords the states broad authority to construe a statute narrowly to

avoid a constitutional violation.65 At the outset, we will assume that the flag-destruction statute

applies only toacts that physically damage a flag.66

The State argues that the statute may be construed to apply only to conduct that would

otherwise constitute criminal mischief, that is, conduct that damages someone else's flag (without

consent).67 Wedecline to impose sucha narrowing construction because nothing in thelanguage of

the statute supports it. Onthecontrary, thetextof thestatute isunambiguously broadinthisrespect,

applying to the conduct of intentionally or knowingly damaging any United States or Texas flag,

regardless of who owns the flag and whetherthat ownerhas consented to the conduct.

63 See Streetv.New York, 394 U.S. 576 (1969) (holdingunconstitutional, as applied, a statute

that punished words that cast contempt on the flag of the United States).

64 See People v. Meyers, 23 111. App. 3d 1044, 1045, 321 N.E.2d 142, 143 (5th Dist. 1974)

(defendant seen lying on American flag in a public park).

65 Osborne v. Ohio,495 U.S. 103, 115 n.12, 119-21 (1990); Thompson, 442 S.W.3dat339.

66 Although the currentstatutemakes it an offense to, among otherthings, "deface"a flag,

we will assume that the term "deface" can be narrowly construed to not apply to temporary

attachments to a flag. SeeSpence v. Washington, 418 U.S. 405 (1974) (involving a peace symbol

made ofremovable black tape attached to a United States flag).

67 See Tex. Penal Code § 28.03(a).
JOHNSON —19

Although a Texas court has a duty to employ, if possible, a reasonable narrowing

construction to avoid a constitutional violation, such a construction should be employed only ifthe

statuteis readilysusceptible to one.68 "We maynot rewrite a statutethat is notreadily subjectto a

narrowing construction because such a rewriting constitutes a serious invasion of the legislative

domain and would sharply diminish the legislature's incentive to draft a narrowly tailored statute in

the first place."69 A law is not readily subject to a narrowing construction if its meaning is

unambiguous.70 We should be wary of reading into a statute a narrow meaningnot supportedby its

language because such a construction may later be rejected as untenable.71 Moreover, when the

statute is unambiguous, the public at large will not necessarily be on notice that the law means

something other than exactly what it says. Instead, we should act in accordance with our usual rules

ofstatutory construction and construe a statute in accordance with unambiguous language absent a

finding ofabsurdresults.72 Consequently, weconstruethe flag-destruction statutein accordance with

the text's unambiguously broad command against intentionally or knowingly damaging any United

68 Thompson, 442 S.W.3d at 339; Long v. State, 931 S.W.2d 285, 295 (Tex. Crim. App.

1996). See also Stevens, 559 U.S. at 481.

69 Thompson, 442 S.W.3d at 339. See also Long, 931 S.W.2d at 295; Stevens, 559 U.S. at

481.

70 Thompson, 442 S.W.3d at 339; Olvera v. State, 806 S.W.2d 546, 553 (Tex. Crim. App.

1991).

71 See Wilson v. State, 448 S.W.3d 418 (Tex. Crim. App. 2014) (disavowing statement in

Scott, made in context of First Amendment challenge, that statutory term "repeated" could be

narrowly construed to apply only to activity occurring in close enough proximity to properly be

termed a single episode).

72 Thompson, 442 S.W.3d at 339-40. See also Boykin v. State, 818 S.W.2d 782, 785 (Tex.

Crim. App. 1991).
JOHNSON — 20

States or Texas flag.73

D. Sweep of the Statute under its Text

1. Unconstitutional Applications

TheSupreme Courthasrecognized thattheconduct ofintentionally orknowingly damaging

a UnitedStatesflagis not inherently expressive.74 As a result, a statutethatproscribes suchconduct

will at least theoreticallyapply to some circumstances that do not implicate the First Amendment.

The question is whetherthe applications of such a statute that do implicate (and violate) the First

Amendment are so substantial that the statute must be held invalid on its face.

It is clear that the Texasflag-destruction statuteviolatesthe First Amendmentwhen applied

to some circumstances. In Texas v. Johnson, the Supreme Court found that the former flagdesecration statute was applied in violation of the First Amendment when the State punished a

person who burned aUnited States flag aspart ofaprotest against the Reagan Administration.75 The

flag-desecration statute made it an offense to "intentionallyor knowingly desecrate[] ... a state or

national flag," with "desecrate" being defined to mean to "deface, damage, or otherwisephysically

73 See also Snider v. City of Cape Girardeau, 752 F.3d 1149, 1158-59 (8th Cir. 2014)

(decliningto limit Missouriflag-desecration statuteto non-expressiveconductgiventhe absenceof

languageto suggestsuch a limitation);State v. Janssen, 213Wis. 2d 471,480-82,570 N.W.2d 746,

751 (Ct.App. \991),aff'd, 219Wis. 2d 362, 580N.W.2d260 (1998) (declining to limitWisconsin

statuteto non-expressiveconductinpartbecausethe statute's"plainreadingprohibitsall intentional

and public acts of defiling, mutilating, and casting contempt on the flag; it does not distinguish

non-expressive conduct").

74 Johnson, 491 U.S. at 403 n.3 ("A tired person might, for example,drag a flag throughthe

mud, knowingthat this conduct is likelyto offendothers,and yethave no thoughtof expressingany

idea."), 405 ("We have not automaticallyconcluded,however, that any action taken with respectto

our flagis expressive. Instead, incharacterizing suchaction forFirstAmendment purposes, wehave

considered the context in which it occurred."); Thompson, 442 S.W.3d at 334.

75 491 U.S. at 399, 418-20.
JOHNSON — 21

mistreat in a way that the actor knows will seriously offend one or more persons likely to observe

or discover his action."76 The Court concluded that whether the defendant's treatment of the flag

violated Texas law depended on"thelikely communicative impact ofhis expressive conduct."77 The

Courtfurther concluded that sucha restriction on expression was content based.78

The Court then considered the State's asserted interest in "preserving the flag as a symbol

of nationhood and national unity."79 This interest was found to be insufficientto justify a contentbased restriction because "[i]fthere is a bedrock principle underlying the First Amendment, it is that

the government may not prohibit the expression of an idea simplybecause societyfinds the idea

itself offensive or disagreeable" and the Court has "not recognized an exception to this principle

even where our flag has been involved."80 The State argued that, even if the flag's symbolic role

does not allow the State to prohibit words or some expressive conduct critical of the flag, it does

allow theState "to forbid theoutright destruction of the flag."81 TheCourtrejected thisdistinction,

sayingthat it "is of no moment where the nonverbal conduct is expressive, as it is here, and where

the regulation of that conduct is related to expression, as it is here."82 The State's "focus on the

precise nature of the defendant's expression, "missefd] the point" of the Court's prior decisions:

76 See id. at 400 n.l (quoting Tex. Penal Code § 42.09 (1989)).

77 Mat411.

78 Id. at4\2.

79 Mat413.

80 Id. at 414.

81 Mat 416.

82 Id.
JOHNSON — 22

"their enduring lesson, that the government may not prohibit expression simply because it disagrees

with its message, isnot dependent onthe particularmode inwhich one choosestoexpress anidea."83

"Ifwe were to hold that a State may forbid flag burning wherever it is likely to endanger the flag's

symbolicrole," the Court continued, "but allow it whereverburning a flag promotes that role" then

"[w]e would be permitting a State to 'prescribe what shall be orthodox'" in violation of the First

Amendment.84

Although the current flag-destruction statute differs somewhat from the flag-desecration

statute considered in Texas v. Johnson, it is similar to the statute considered in United States v.

Eichman. In Eichman, the federal flag-protection statute made it a crime if a person "knowingly

mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any

flag of the United States" unless the conduct consists of "the disposal of a flag when it has become

worn or soiled."85 The Government relied heavily on the fact that, unlike the statute in Texas v.

Johnson, the federal statute did not require the actor to have any intent or knowledge with respect

towhetherhisactions wouldseriouslyoffend onlookers.86 The Supreme Court was not persuaded

that this fact made any difference: "Although the Flag Protection Act contains no explicit contentbased limitation on the scope ofthe prohibited conduct, it is nevertheless clear that the Government's

asserted interest isrelated to the suppression offree expression."87 "TheGovernment's interestin

83 Id.

84 Id. at 416-17.

85 496 U.S. at 314.

86 Mat 315.

87 Id. (internal quotation marks omitted)
JOHNSON — 23

protecting the physical integrity of a privately owned flag," the Court explained, "rests upon a

perceived need to preserve the flag's status as asymbol ofour Nation and certain national ideals."88

Eachof the actsthatwereprohibited bythe statute, withthepossibleexception of"burns," connoted

a disrespectful treatment of the flag, and the explicit exception for the disposal of soiled flags

protected "certain acts traditionally associated with patriotic respect for the flag."89 Consequently,

the statute wasan impermissible content-based restriction ofspeech whenapplied to a personwho

used themistreatment of a flag as a method of expressing an idea.90

Though the flag-destruction statute before us is not limited solely to expressive conduct,

Eichman teaches that, when this type of statute does apply to expressive conduct, it is an

impermissible content-based restriction. As in Eichman, the present Texas statute contains an

exemption for conduct associated with theproper disposal of a flag. So,as inEichman, thepresent

statute distinguishes between disrespectful and respectful conduct that damages aflag.91 And while

the Texasstatutedoesnot requirethatthe disrespectful conductbe expressive, suchconductis very

likely to be expressive in a given case because of the symbolism associated with flags. Flags are

"[p]regnant with expressive content," and the United States flag "readily signifies this Nation."92

88 Id. at 315-16.

89 Id. at 317.

90 Id. at 317-19.

91 Judge Yeary's dissenting opinion says that the legislature enacted the flag-destruction

statute in its current form after Texas v. Johnson in "an attempt to cure potential constitutional

problems with that law." But the Supreme Courtissued its opinion in Eichman after the current

statute was enacted, and it is Eichman, more than any other case, that guides our decision today.

92 Johnson, 49\ U.S. at 405.
JOHNSON — 24

The statutory language clearly applies to those who damage a flag ofthe United States or Texas as

a means of communicating a message (e.g. of protest against the United States or Texas). The only

ascertainable purpose of a law as broadly worded as the present one—which applies even when the

actor damages his own flag—is to protect the integrity of the United States flag or Texas flag as a

symbol.93

2. Expressive Applications Predominate

The State contends that the number of lawful applications of the flag-destruction statute

dwarfs its unlawful applications, but, aside from the present case, the State does not attempt to

describe the lawful applications to which the statute theoretically applies. We are aware oftwo types

of situations suggested by the caselaw that might involve lawful applications to conduct that is nonexpressive,but the nature of both situations suggeststhat prosecutionsfor them will be uncommon,

which in turn suggests that the legitimate reach of the statute is narrow.

Thefirstis conducttowarda flagthatis hidden orsecretive.94 Themorehiddenthe conduct,

arguably thelessexpressive it islikelyto be,95 butas conduct becomes more hidden, it alsobecomes

93 SeeEichman, 496 U.S. at 315-16. The natural symbolism ofthe flags, the discrimination

between respectful and disrespectful treatment ofthe flags, and the fact that the obvious legislative

purpose is one that is directed at expression distinguishes the statute at issue here from the

disorderly-conduct provisions cited in Judge Yeary's dissenting opinion. See above discussion of

Eichman. As will be seen below, the offense of flag destruction also differs from these offenses

because prosecutions for flag destruction have typically been directed at expressive activity.

94 SeeCarpenter v. State, 597 So. 2d 757, 758 (Ala.Crim.App. 1992) (soiledflagwadded

up in coat pocket).

95 But see Stanley v. Georgia, 394 U.S. 557 (1969) (First Amendment protects viewing

obscenity in the privacy ofthe home).
JOHNSON — 25

lesslikely to be discovered, andthus less likely to be prosecuted.96 If the conduct toward a flag is

completely hidden, it will likelybe onlyby unusual happenstance that a prosecuting authority will

be alerted to the situation.97

The second type of situation involving potentially non-expressive conduct involves the

personwhoactsdisrespectfully towarda flagwitha casualor cavalierattitudebutwithoutintending

to communicate a message. The hypothetical described by the Supreme Court was that of "a tired

person" whomight"draga flagthrough themud, knowing thathisconduct islikely tooffend others,

and yethaveno thought of expressing anyidea."98 TheCourtoffered this hypothetical merely as a

"possibility"that mightbe prosecuted underthe formerTexas statutethat was analyzed in Texas v.

Johnson." We agree with other courts that this scenario is anunlikely one.100

Most conduct that falls within the provisions of the statute and that would come to the

96 See Wayte v. United States, 470 U.S. 598,612-14 (1985) (discussing passive-enforcement

policy of prosecuting those who report their refusal to register for selective service or who are

reported and recognizing that Government can more easily prosecute those who openly and

obviously violate the law).

97 See Carpenter, 597 So. 2d at 758 (soiled flag wadded up in coat pocket discovered after

defendant was arrested for littering and desecrating a Post Office).

98 Johnson, 491 U.S. at 403 n.3.

99 Id. The Court declined to address the constitutionality ofsuch a prosecution because it

could decide the case before it on narrower grounds. Id.

100 Snider, 752 F.3d at 1158 (calling it an "unlikely hypothetical" and holding the Missouri

flag-desecration statuteunconstitutionallyoverbroad);Commonwealth v. Bricker, 542Pa. 234,246,

666 A.2d 257, 263 (1995) (citing footnote 3 of Johnson and stating, "We hold open the possibility

that there are narrow categories in which the flag is used in a non-expressive manner and, in this

regard, the United States Supreme Court agrees.").
JOHNSON — 26

attention oftheauthorities wouldconstitute protected expression.101 Theassessment of Wisconsin's

highcourtregarding itsownflag-desecration statute seems to apply equally to the statute before us:

"Although theremaybe constitutionally permissible applications^] ... the number of instances in

which the law couldbe applied to unprotected behavior is small in comparison to the number of

instances inwhich itmay be applied toexpression protected bythe First Amendment."102

3. Criminal MischiefNot Relevant

The Stateargues that the flag-destruction statute essentially penalizes criminal mischiefin

relationto the flag, but we disagree. Criminal mischief, as defined in Texas,occurs when a person

intentionally orknowingly damages, destroys, tampers with, ormakes markings onproperty"without

the effective consent of the owner."103 As we have already explained, the flag-destruction statute

applies even when someone damages his own flag.104

101 Judge Yeary's dissenting opinion contends that this conclusion is not a proper

consideration in an overbreadth analysis because the doctrine "as it is currently enforced by the

Supreme Court, requires an examination of the statute itself, and not merely the potential or

hypothetical First Amendment uses" of the conduct proscribed by the statute. But, as the dissent

seems to concede, an examination of the statute and ofthe possible uses of the conduct proscribed

bythestatute arenotmutually exclusive inquiries. Asweexplained earlier, theoverbreadth doctrine

contemplates a showing, fromthe text and fromactualfact, "that a substantial numberof instances

exist in which the Law cannot be applied constitutionally." New York StateClub Ass'n, 487 U.S.

at 14. Examining the probable First Amendment uses of conduct proscribed by the statute is a

necessary step in answering such an inquiry.

102 State v. Janssen, 219 Wis. 2d 362, 387, 580 N.W.2d 260, 270 (1998). Although the

Wisconsin statute was broaderthan the current Texas statute, the Supreme Court ofWisconsin found

it to be unconstitutionally overbroad evenwhennarrowed to reachonlyconductthatdefiledthe flag

through purely physical acts. Id. at 382, 580 N.W.2d at 268.

103 Tex. Penal Code § 28.03(a).

104 It is indisputably true that a person who damages someone else's flag without consent

could validly bepunished undera general criminal mischiefstatute such asPenal Code §28.03. See

Johnson, 491 U.S. at 412 n.8 ("[N]othing in our opinion should be taken to suggestthat one is free
JOHNSON — 27

Furthermore, when considering the possible legitimate applications ofthe flag-destruction

statute, there are two reasons that we should not count cases that amount to criminal mischief: the

flag-destruction statutedoesnotrequiretheStateto showthattheperson's conducttowarda flagwas

an act ofcriminalmischief,105 and nothing preventsthe State from prosecutinga person under both

to steal a flag so long as one later uses it to communicatean idea."). Some of the Supreme Court's

cases arguably supporta conclusion that the Statecould validlyenhance punishment forsomeone

who commits criminal mischief on the basis that the property damaged was a United States flag

because damage to suchproperlyis an especially egregious form of criminal mischief, involving a

greaterharmto the flag's ownerthan itsmonetary valuewouldindicate. See Virginia v. Black, 538

U.S. 343, 363 (2003) ("The First Amendment permits Virginiato outlaw cross burnings done with

the intent to intimidate because burning a cross is a particularly virulent form of intimidation.

Instead of prohibiting all intimidating messages, Virginia may choose to regulate this subset of

intimidating messages in light of cross burning's long and pernicious history as a signal of

impending violence."); Wisconsin v. Mitchell, 508U.S.476,487-88 (1993)(Statute doesnotviolate

First Amendment when it "singles out for enhancement bias-inspired [assaultive] conduct because

this conduct is thought to inflict greater individual and societal harm.").

In any event, the Supreme Court has explicitly recognized the government's power to protect

publicly owned flags. Eichman, 496 U.S. at 316 n.5 ("Today's decision does not affect the extent

to whichtheGovernment'sinterest in protecting publiclyowned flags mightjustify specialmeasures

on their behalf."); Spence, 418 U.S. at 409 ("We have no doubt that the State or National

Governments constitutionally may forbid anyone from mishandling in any manner a flag that is

public property."). It is primarily for this reasonthat we find Judge Meyers's "mockingbird" analogy

unpersuasive. A mockingbird (like a bald eagle) is a wild animal that belongs to the public. It is a

finite natural resource, and a government may choose to protect it. See State v. Bartee, 894 S.W.2d

34,41 (Tex. App.-San Antonio 1994,no pet.) (unanimous panel op. by John F. Onion, Jr.) ("History

reveals a long recognition of common ownership in game and wild animals and its developing

subjectivity to governmental authority."). To the extent that a mockingbird or bald eagle can be

analogized to a flag at all, they would be analogous to a public flag. A statute that punished the

destruction of a depiction of a mockingbird or bald eagle might, however, raise First Amendment

concerns.

105 See Johnson, 491 U.S. at 412 n.8 ("There was no evidence that Johnson himselfstole the

flaghe burned... nor did the prosecution or the arguments in supportof it depend on thetheorythat

the flag was stolen .... We also emphasize that Johnson was prosecuted only for flag

desecration—not for trespass, disorderly conduct, or arson.").
JOHNSON — 28

the flag-destruction and criminal-mischiefstatutes.106 The criminal-mischief aspect of an actor's

conductis a red herring in a constitutional analysis of the flag-destruction statute: by allowing for

a separate prosecution and penalty in addition to that authorized for criminal mischief, the flagdestruction statute enables the State to separately penalize the actor's expression.107

However,even if we assumedthat the flag-destruction statute could legitimatelybe applied

106 See Cullen v. State, 832 S.W.2d 788, 791-92 (Tex. App.-Austin 1992, pet. refd) (in

prosecution for the poisoning of the historic Treaty Oak in Austin, rejecting claim that the

desecration-of-venerated-object and criminal-mischief statutes must be read in pari materia to

require prosecution onlyunder the former). Cullen addressed the predecessor to the current flagdestructionstatute,but itsreasoningis equallyapplicableto the present statute.The flag-destruction

and criminal-mischiefoffenses are not the same undertheBlockburger same-elementstest, and other

factors do not suggest that the legislature intended the offenses proscribed by those statutes to be

treated as the same. See id. at 792 ("These two statutes are contained in different legislative acts,

address differingsituations,require different elementsofproof, and serve differentobjectives. We

believethe legislature intendedto definetwoseparate offenses withdifferent elements anddifferent

levels of punishment. It follows that section42.09 is not a special subset of the general offenseof

criminal mischief."); Blockburger v. United States, 284 U.S. 299, 304 (1932) ("[W]here the same

act or transaction constitutes a violation oftwo distinct statutory provisions, the test to be applied

to determine whether there are two offenses or only one, is whether each provision requires proof

of a fact which the other does not."); ExparteErvin, 991 S.W.2d 804, 814 (Tex. Crim. App. 1999)

("TheBlockburger test is a useful tool for ascertaining legislative intent,but it is not the only tool.

Other . . . considerations [are] relevant to determining whether the Legislature intended multiple

punishments ....").

We further note that the predecessor statute at issue in Cullen also penalized the desecration

ofpublic monuments and places ofworship or burial. See Cullen, 832 S.W.2d at 792; Tex. Penal

Code § 42.09 (West 1988). Those portions ofthe statute were later moved to the criminal mischief

statute to enhance the level of the offense. See Tex. Penal Code § 28.03(f) (current). The

legislature has not, however, codifieda criminal-mischiefenhancement basedon destruction of the

flag. See Tex. Penal Code § 28.03, passim.

107 SeeR.A. V. v. City ofSt. Paul, 505 U.S. 377,385 (1992) ("The proposition that a particular

instance of speech can be proscribable on the basis of one feature (e. g., obscenity) but not on the

basis ofanother(e.g., oppositionto the citygovernment) is commonplaceandhas foundapplication

in manycontexts.We have long held, for example,that nonverbalexpressiveactivitycan be banned

because ofthe action it entails, but not because ofthe ideas it expresses—so that burning a flag in

violation of an ordinance against outdoor fires could be punishable, whereas burning a flag in

violation of an ordinance against dishonoring the flag is not.").
JOHNSON — 29

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

cover a wide swath of expressive conduct that does not amount to criminal mischief. Even under

that assumption, then, the unconstitutional applications of the statute would, by its text, be

substantial in relation to its plainly legitimate sweep.

E. Sweep of the Statute in Actual Fact

As for whether the application of the flag-destruction statute to expressive activity is

significant in actual fact, we need look only to the numerous prosecutions of flag desecration

involving physical alteration or damage to a flag that are documented byjudicial decisions.108 By

108 See Snider, 752 F.3d at 1154-55 (plaintiff attempted to set fire to flag in his front yard,

then shredded it and threw it into the street; officer conceded he violated plaintiffs First Amendment

rights); Janssen, 219 Wis. 2d at 367-68, 580 N.W.2dat 262 (defecating on a flag and leavingit on

the stepsto a golfcourseclubhouse); Eichman, 496U.S. at 312(settingfireto several UnitedStates

flags on the stepsof theUnitedStatesCapitol whileprotesting variousaspects of the Government's

domestic and foreign policy); United States v. Cary, 897 F.2d 917, 919-21 (8th Cir.), vacated, 498

U.S. 916 (1990) (at protest ofthe decision of the United States Government to send 3,200 troops to

Honduras, an unidentified woman came up to defendant, handed him a flag, and told him to light it,

which he did); United States v. Haggerty, 731 F. Supp. 415, 416 (W.D. Wash.), aff'd sub nom.,

Eichman, 496 U.S. 310 (1990) (flag burned at a political demonstration in front of a post office to

protestthe Flag Protection Act of 1989); Johnson, 491 U.S. at 399 (burning flag as part of protest

against Reagan administration); Bowlesv. Jones, 758 F.2d 1479-80(11th Cir. 1985)(burning flag

at Communistrally as a protest againstU.S. imperialism); Monroe v. State Court ofFulton County,

739 F.2d 568, 570-71 (11th Cir. 1984) (flag burned at protest against U.S. involvement in Iranian

affairs); People v. Sutherland, 9 111. App. 3d 824, 826, 292 N.E.2d 746, 747 (1973) (flag burned to

protestagainst the invasion of Cambodia and the death of the fourstudents at Kent State); State v.

Farrell, 209 N.W.2d 103, 104 (Iowa 1973) (flag burned at protest ofthe Indo-China War and the

presenceofR.O.T.C.on the campus); UnitedStates v. Crosson, 462 F.2d 96,98 (9th Cir. 1972)(flag

burned by war protestors in R.O.T.C. building); Joyce v. United States, 454 F.2d 971, 977-80 (D.C.

Cir. 1971)(flag torn by person in group of protestors at Inauguration Day Parade); Deeds v. State,

474 S.W.2d 718, 719-20 (Tex. Crim. App. 1971) (flag burned at crowded public park in Dallas);

People v. Burton, 27 N.Y.2d 198, 201, 265 N.E.2d 66, 66 (Ct. App. 1970) (After affixing a flagto

a vacantbuildingand settingit on fire, the defendant said, "I am goingto burn Johnson, Humphrey

and Wallacejust as I am going to burnthisflag."); State v. Turner, 78Wash. 2d 276, 277-78, 283-

84;474 p.2d 91, 93,96 (1970)(flagburnedat gatheringby organizationhaving to do with the social

and economic rehabilitation of a large economically depressed area of Seattle); United States v.

Ferguson, 302 F. Supp. 1111,1112 (N.D. Cal. 1969) (flagburned at rally on the front steps of a
JOHNSON — 30

contrast, prosecutions involving evenarguably non-expressive conduct appear from the cases to be

uncommon as a historical matter.109 Even prosecutions that involve expressive activity that also

constitutes criminal mischief appear to be a small proportion of the cases.110 In fact, we are not

aware of a single case since Eichman thathasresulted in a final conviction under a flag destruction

statute. Suchprosecutions havebeenterminated inthedefendant's favor because thestatute violated

the constitution in one way or another111 or, in one case, becausethe court declined to address the

constitutionality ofthe statute after finding the evidence insufficient to support the conviction.112

F. Pattern of Non-Enforcement

We turn now to the State's contention that the Texas flag-destruction statute will not be

United States DistrictCourthouse). Seealso State v. Jimenez, 828 S.W.2d 455 (Tex.App.-El Paso

1992) (notsetting outthealleged conductbutruling Texas flag-destruction statute unconstitutional).

109 SeeCommonwealth v. Forrey, 108A.3d 895, 897 (Pa. Super. 2015) (troopersdiscovered

large debris trail—which included a United States flag—extending from defendant's truck to a

wooded area,flag-desecration chargedismissed pretrial); Bricker, 542Pa.at 237-38,244,666 A.2d

at 259, 262 (dirtyand wrinkled flag being used at entranceto home as artistic decoration, holding

statuteunconstitutional as appliedbecause artistic expression isprotected bytheFirstAmendment);

Carpenter, 597 So. 2d at 758 (soiled flag wadded up in pocket, acquittal on appeal because

desecration was not in public); Meyers, 23 111. App. 3d at 1045,321 N.E.2d at 143 (person lying on

flag in public park,acquittal on appeal because he didnot "trample" the flag); Cincinnati v. Bunch,

32 Ohio App. 2d 161, 161-62, 288 N.E.2d 854, 855 (1971) (defendant "spread the flag out on the

ground andplaced hispersonal property on topof it," conviction fordefiling the flag upheld). The

last two cases would not appear to be prosecutable under the current Texas statute, and it is not

entirely clear whether the first three cases could be.

110 See Janssen, 219 Wis. 2d at 367, 580 N.W.2d at 262 (flag stolen from a golf course);

Haggerty, 731 F. Supp. at 416 (burned flag belonging to the United Sates Postal Service).

111 See supra nn.108-10; infra n.l 19. The State citesMilligan, a federal district court

opinion, which found no FirstAmendment violation, butthe opinion held thatthe statute was void

for vagueness in violationof the Fourteenth Amendment. 479 F. Supp. 2d at 1008-14.

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

unconstitutionally applied in a significant number ofinstances because there is currently a pattern

ofnon-enforcement. Essentially,the State's argument is that the SupremeCourt's opinions in Texas

v. Johnson and United States v. Eichman have deterred and will continue to deter prosecutors from

bringing flag-destruction prosecutionsthat would violatetheFirstAmendment. Concomitantly, the

State contends, these cases have caused the average citizen to understand that the United States

Constitutionprotectsthe rightto burnthe UnitedStatesflagto expressan idea,sothe averagecitizen

willnotfeel constrained bythestatute from engaging in such conduct."3 Itis no doubt truethatthe

Supreme Court's decisions in Johnson and Eichman have deterred prosecutions for flag

desecration114 and that those decisions have raised awareness among members ofthe general public

that certain disrespectful conduct toward the United States flag is protected by the United States

Constitution. But we are not persuaded that the deterrent effect and popular understanding of

Supreme Court decisions are valid factors in determining whether a statute is unconstitutionally

overbroad.

The State's argument involves a sort of bootstrapping. In effect, the State is arguing that

113 See Milligan,479 F. Supp. 2d at 1007 (contending that "[i]t is reasonable to believe that

the average citizen generally understands that burning a flag as part ofexpressive speech or conduct

is protectedby the United States Constitution"and such generalknowledge"would be sufficientto

dispel any possible chilling effect").

114 See Winsness v. Yocom, 433 F.3d 727, 736 (10th Cir. 2006) ("In this case, Mr. Blaylock

has foresworn any intention to bring criminal charges against indivdiuals who alter the flag for

expressivepurposes. His superior,Mr. Yocom, has gone further, categorically announcingthat his

office will bring no prosecutions under the statute."); Lawson v. Hill, 368 F.3d 955,956-57 (7th Cir.

2004) ("At some point [the prosecutor] learned about the demonstrations and told both the police

chief ofGoshen, and the county's sheriff, not to investigate whether the students had violated the

flag-desecration statute. We do not know when anyonewas last prosecutedunder the statute. We

know only that [the prosecutor] has never prosecuted anyone under it and is unaware of any

prosecutions in other counties.").
JOHNSON — 32

certain applications oftheflag-destruction statute aresoobviously unconstitutional thatprosecutors

will steer clear of them, and because of that, the actual unconstitutional applications ofthe statute

will not be substantial in relation to the statute's legitimate sweep. The State also suggests that there

willbenochilling effect from theseunconstitutional applications because thepublic understandsthat

the courts will not enforcethem. The State's argument is somewhat like an argumentadvanced in

a capital murder appeal a decade ago. Thedefense argued thatthe courtshould find the evidence

to be insufficientto show future dangerousness because the defendant was so obviouslydangerous

that the prison authorities would place him in lockdown to prevent him from hurting anyone.115

Although we found that defendant's argument to be "ingenious," we rejected it because "it would

stand the capital punishment scheme on its head, giving reliefto the most dangerous offenders."116

Likewise, the State's argumentwould seem to stand First Amendment jurisprudenceon its head,

upholding a statute onthebasis thatitsunconstitutional applications areso glaringly obvious that

prosecutors will avoid them and speech will not be chilled by them.

Moreover, the Supreme Court has clearly stated that it will not uphold a statute "merely

because theGovernment promised touseitresponsibly."117 "TheFirstAmendment protects against

the Government; it doesnot leaveus at the mercy of noblesse oblige."u% And so longas a statute

remains on the books, the threat of "irresponsible" use remains, because a prosecutor or police

officer may be insufficiently instructed on the issue, because the authorities (wrongly) perceive the

115 Masterson v. State, 155 S.W.3d 167, 172-74 (Tex. Crim. App. 2005).

116 Id. at 174.

117 Steve/w,559U.S.at481.

118 Id.
JOHNSON — 33

conduct to fall outside constitutionalprotection, or becauseof other reasons. The caselaw contains

post-Eichman examples of such occurrences with respect to flag-desecration statutes."9 By

depending ontheSupreme Court's "as-applied"jurisprudence toreduce theoverbreadth ofa statute,

the State shifts to a significantdegree the determinationof constitutionalquestions from the courts

to the prosecutors, the police, and the public. But we should not expect persons in those latter

positions to be the primary interpreters of the First Amendment:

Arguably, people are always "on notice" that constitutionally protected conductis

exempt from prosecution, and law enforcement officials could always look to the

First Amendment to determine when a law should not be enforced because it would

interfere with constitutionally protected activity .... Because First Amendment

119 SeePhelps v. Powers, 63 F. Supp. 3d943,945-46,952-57 (S.D. Iowa2014) ("According

to Petitioners [members ofWestboro Baptist Church], Chief Powers told Elizabeth Phelps that the

flag desecration statutes would be enforced against the picketers. As a result of Chief Powers's

statement, members of the church refrained from putting the flag on the ground or hanging it from

their bodies." The court found the Iowa flag-desecration statute to be unconstitutionally overbroad

in violation of the First Amendment.); Snider, 752 F.3d at 1154(In 2009, the defendant was arrested

for flag desecration for shredding an American flag in his front yard and held in jail for

approximately eight hours because boththe arresting officer andthe prosecutor "wereunaware of

the United States Supreme Court decisions in Texas v. Johnson and United States v. Eichman."

Uponbeinginformed of Johnson by a localreporter, the prosecutor dismissed the case.); Gooding

v. Ketcher, 838F. Supp. 2d 1231,1234-35 (N.D. Okla. 2012)(In2009,a UnitedStates flagwasused

by the plaintiffas a prop during a bandperformance, the plaintiffwas arrested and imprisoned for

thirteen hours until he posted bond, formal charges were never filed, and the sheriff commented in

supportof arrest, "I wasshocked and disturbed by this thatsomebody would think they could get

by withthat Peoplein thispart of the UnitedStatesareveryproud of the flagand whatitstands

for and the men and women who have lost their lives to protect that flag. It's not an object to be

stomped on or drug across the floor."); Milligan, 479 F. Supp. 2d at 997 (Two defendants were

prosecuted in 2006for flag desecration or disorderly conductwith respectto the flag forflying flag

upside-down in protest. One defendant was found not guiltyby a magistrate on the basis that the

statute was unconstitutional as applied. The other defendant's case was dismissed one day before

trial.);Janssen, 219Wis. 2d at 367-68,580N.W.2d at 262 (In 1996, the defendant was prosecuted

for flag desecration after he defecated on flag belonging to golf course. Trial court dismissed the

prosecution, and the appellate courts affirmed.); Bricker, 542 Pa. at 237-38, 246-47, 666 A.2d at

258-59, 263 (In 1993, the defendant was prosecuted for flag desecration after a police officer

discovered a dirty and wrinkled flag being used in a doorwayinside the home. Trial court quashed

the charge, and appellate court affirmed.).
JOHNSON — 34

doctrines are often intricate and/or amorphous, people should not be charged with

noticeof FirstAmendmentjurisprudence Moreover, anattemptto chargepeople

with notice of First Amendment caselaw would undoubtedly serve to chill free

expression.120

Further, in explaining whyit believes appellee'sconduct in thiscasewasnot expressive, the

State offersrationales that could readilylendthemselves to the harassment of persons engaging in

protected expression.121 The State claims that there was "no element of speech" in appellee's

conduct because his conduct "was random in nature." But the act ofthrowing down a flag in anger

could easily be protected expression.122 The Statealso contends that appellee's conduct was nonexpressive because he threw downa flagthatbelonged to a different storethantheonehewasangry

with. That conclusion depends on statements madeby appellee to the policeaftertheyconfronted

him about his conductin relation to the flag. If the expressivenature of a person's conductdepends

upon what helater says when confronted bythe police about it,then individuals who have engaged

120 Long, 931 S.W.2d at 295(criticizing reliance on language in an affirmative defense that

made it a defenseif the actor engagedin activity"in supportof constitutionally... protectedrights"

because suchlanguage wouldrequirecitizens andlaw-enforcement officials "tobeFirstAmendment

scholars"). SeealsoJanssen, 219Wis. 2d at 382n.13, 580N.W.2d at 268 n.13 ("[A] construction

which by its verylanguage limits a statute's application to speech andconduct that is not protected

bythe FirstAmendment is both impractical andconstitutionally suspect [I]tsimply exchanges

overbreadth for vagueness.") (quoting in part from LaurenceH. Tribe, American Constitutional

Law, § 12-29, at 1031 (2d ed. 1988), internal quotation marks omitted).

121 Although the case is before us on a facial challenge to the statute, "we can look to the

prosecution beforeus as evidence of the real dangerposed by the statute." Thompson, 442 S.W.3d

at 350 (citing Stevens, 559 U.S. at 480).

122 See Joyce, 454 F.2d at 980 ("When all this is added to the unexplained tearing which

marred, injured, anddisfigured the flag, it was reasonable to conclude thatJoyce intended thereby

publicly to show hisdisrespect andscorn fortheflag and thatheesteemed ittobelowandworthless.

That is the normal inference from an act of intentionally tearing an article. It is the conclusion that

reasonable peoplereachcountless timesa dayin the activities of ordinarylifewhentheyseeaperson

rip something apart, throw part of it to the ground and tear the remainder.").
JOHNSON — 35

in expressive flag-damaging conductcannevertheless be subjectto arrestand detention pendingan

investigation regarding whether the conduct was in fact protected expression.123 The State argues

that the public clearly understands that the Constitution protects the right to damage a flag as a

meansof expression, but howeverclear that publicunderstanding maybe, the ruling soughtby the

Statetodaywouldcloudthatunderstanding—potentially re-introducing the verychillingeffectthat

the State claims earlier decisions have eliminated.

III. CONCLUSION

"The case is made difficult not because the principles ofits decision are obscure but because

theflaginvolved is ourown."124 Weconclude thattheTexas flag-destruction statute, byitstextand

in actualfact, prohibits a substantial amountof activity that is protectedby the First Amendment,

judged in relation to its legitimate sweep. Consequently, we hold that the Texas flag-destruction

statute is facially invalid because it is unconstitutionally overbroad in violation of the First

Amendment. We affirm the judgments below.

Delivered: October 7, 2015

Publish

123 The Supreme Court hassuggested that its concerns are amplified when Firstand Fourth

Amendments freedoms intersect. See Maryland v. Macon, 472 U.S. 463, 468 (1985) ("The First

Amendment imposesspecial constraints on searches for and seizures of presumptively protected

material and requiresthat the Fourth Amendment be applied with 'scrupulous exactitude' in such

circumstances.").

124 Barnette, 319 U.S. at 641 (regulationrequiring school children to salute American flag

and recitepledge of allegiance violatesFirst and Fourteenth Amendments).