(CN) – A Texas law that criminalizes desecration of the flag is unconstitutionally overbroad, an appeals court ruled, reversing the conviction of a man who threw Old Glory into the street.
Though Texas legislators rewrote the flag-desecration statute after the U.S. Supreme Court ruled it unconstitutional in 1989, the newer version still outlaws the burning or damaging of both the U.S. and Texas state flags.
Terence Johnson found himself in the law’s crosshairs after a surveillance camera caught him on April 29, 2012, tossing a U.S. flag onto Highway 19.
Johnson had been walking down the street with two companions that day, and it was one of these friends who actually ripped the flag from where it was handing. Nevertheless it was Johnson who made gestures to the camera before walking away.
Johnson later explained that he was angry because a local merchant had made racial remarks about his mother.
While the trial judge found Johnson’s actions “personally appalling,” she ruled that Johnson could not be convicted because “statutes that criminalize behavior because it specifically prohibits acts against the flag of the United States have consistently been found to be unconstitutional due to the restriction on the Constitutional rights to free speech and expression.”
An appellate panel in Houston ruled that Johnson’s actions did not qualify as communication as to involve his First Amendment rights, but agreed with the trial court that the newer version of the law still violates the First Amendment.
Texas took the case to the state Criminal Court of Appeals, which also ruled in Johnson’s favor, 6-3, last month.
Writing for the majority, Presiding Judge Sharon Keller refuted the state’s argument that the statute would not be unconstitutionally applied because of a pattern of nonenforcement of the law.
“The state’s argument would seem to stand First Amendment jurisprudence on its head, upholding a statute on the basis that its unconstitutional applications are so glaringly obvious that prosecutors will avoid them and speech will not be chilled by them,” the Oct. 7 opinion states.
Judge Elsa Alcala spoke about her love for the flag in a concurring opinion.
“It is precisely because the flag serves as a symbol for everything that is good about the United States – the right to the free exercise of religion, freedom of speech and the right to peaceably assemble – that the government may not enact a law that is so broad that it stifles freedom of expression by threatening criminal punishment for the flag’s damage or destruction,” Alcala said.
Judges Lawrence Myers and Kevin Yeary each dissented separately.
Myers said Johnson was not trying to make a statement, so his conduct should not be protected under the First Amendment.
“The state could just as easily promulgate a statute prohibiting the killing of a mockingbird, which as the state bird of Texas also has great symbolism, without infringing on freedom of expression,” the dissent states.
“Six members of our court undo the considered work of our state’s House of Representatives, our Senate and our Governor,” he wrote. “This is a powerful rebuke to the people’s representatives! I do not join it.”
In the case that went to the U.S. Supreme Court, Gregory Lee Johnson had been prosecuted for allegedly burning the flag.
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