Court of Criminal Appeals: Flag Desecration Ban Violates Constitution

The state’s highest criminal court ruled Wednesday that a Texas law banning defacement of the U.S. and state flags is unconstitutional.

The Court of Criminal Appeals' 6-3 decision, written by Judge Sharon Keller, drew heavily on the 1989 U.S. Supreme Court decision Texas v. Johnson, in which the high court ruled the state could not put broad criminal sanctions on flag desecration. That Supreme Court ruling nullified a previous Texas ban and the bans of 47 other states.  

But only months after the Supreme Court tossed out that Texas ban, the state Legislature turned around and passed another statute — differently worded, but identical in function. Under the slightly revised law, those found guilty of flag desecration in Texas would still be charged with a Class A misdemeanor.

Now, more than a quarter-century later, the Court of Criminal Appeals has ruled the revised statute should also be taken off the books.

“The statute is invalid on its face because it is unconstitutionally overbroad in violation of the First Amendment,” Keller wrote in Wednesday’s opinion.

The case centers on Terence Johnson, who in 2012 pulled a U.S. flag from a storefront display in Lovelady, Texas and threw it into the street. Johnson, who is black, told police he was angry because a store clerk had made racially charged comments about his mother.

Police arrested Johnson for the destruction of the flag. Johnson, who could not pay bail, remained in jail for almost a month.

In the ruling, the Court of Criminal Appeals rejected the state’s argument that Johnson’s conduct was “random in nature,” and therefore not technically speech.

“The act of throwing down a flag could easily be protected expression,” Keller wrote.