Prior to October 7, 2015, it was a Class A Misdemeanor for anyone to “intentionally or knowingly damage, deface, mutilate, or burn the flag of the United States or the State of Texas.” (Texas Penal Code §42.11) However, in a 6-3 ruling, the Court of Criminal Appeals struck down the law holding it to be “facially invalid because it is unconstitutionally overbroad in violation of the First Amendment.”
The case, Texas v. Johnson, came before the Court in an appeal involving Terence Johnson, an East Texas resident who was charged with taking a U.S. flag outside of a hardware store and throwing it into the street. Johnson claimed that he tossed the flag into the road because he was upset about a racial remark made by one of the merchants.
The charge was originally dismissed as unconstitutional by a trial judge. The State appealed that decision on grounds that Johnson’s conduct was not expressive. A Tyler appeals court rejected the State’s argument, ruling the state law unconstitutional because it “was not sufficiently narrow to prevent the chilling effect on the exercise of First Amendment freedoms.”
The State appealed that decision to the Court of Criminal Appeals, arguing that Johnson’s conduct was not protected by the First Amendment because it was not expressive. The State argued that Johnson’s conduct instead constituted an act of criminal mischief with no intent to convey any particularized message.
The Court of Criminal Appeals disagreed, by a vote of 6-3. Judge Sharon Keller, who wrote the majority opinion, said “Flags are ‘pregnant with expressive content,’ and the United States flag ‘readily signifies this nation.” She went on to say that Johnson’s throwing of the flag in anger “could easily be protected by expression.”