Court of Appeals of Texas, Twelfth District, Tyler
Appeal from the County Court at Law of Houston County, Texas (Tr. Ct. No. 12-06-00189-CR).
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
Sam Griffith, Justice.
The State appeals the trial court's order granting Appellee Terence Johnson's motion to dismiss. The State raises two issues on appeal relating to the constitutionality of Texas Penal Code Section 42.11. We affirm.
Appellee Terence Johnson was charged by complaint and information with the offense of destruction of a flag, committed on or about April 29, 2012. Appellee filed a motion to dismiss on the grounds that Section 42.11 of the penal code (the Texas flag destruction statute) is unconstitutional and its enforcement interferes with his right to free speech. The State argued that Appellee's conduct was not speech and that the statute is constitutional.
The trial court disagreed with the State's contention that Appellee's act of pulling a local business establishment's flag off its post and throwing it into the street did not constitute speech. The court reasoned that if the act of burning the flag is protected speech, then so too is the act of throwing a flag to the ground. Stating that it was bound by the holdings in United States v. Eichman, Texas v. Johnson, and State v. Jimenez, the trial court dismissed the case. This appeal followed.
The trial court dismissed the State's information against Appellee, finding "that Section 42.11 is unconstitutional and [its] enforcement . . . unconstitutionally interferes with [Appellee's] right of free speech." When the constitutionality of a statute is challenged on appeal, we review the trial court's ruling de novo. See Lawson v. State, 283 S.W.3d 438, 440 (Tex. App.—Fort Worth 2009, pet. ref'd). We presume a statute is valid and that the legislature did not act unreasonably or arbitrarily in enacting the statute. Battles v. State, 45 S.W.3d 694, 702 (Tex. App.—Tyler 2001, no pet.) (citations omitted). The burden rests on the party challenging the statute to establish its unconstitutionality. Id., 45 S.W.3d at 702. We will uphold the statute if we can determine a reasonable construction that will render it constitutional and carry out the legislative intent. Lawson, 283 S.W.3d at 440; Battles, 45 S.W.3d at 702.
A statute may be found unconstitutional "as applied" to a specific set of facts or "on its face." See Scott v. State, 322 S.W.3d 662, 665 n.1 (Tex. Crim. App. 2010); Bynum v. State, 767 S.W.2d 769, 773 (Tex. Crim. App. 1989). Generally, a defendant must show that a statute is unconstitutional "as applied" to the conduct for which he was charged. See id. at 774. A claim that a statute is unconstitutional "as applied" is a claim that the statute operates unconstitutionally with respect to the claimant because of his particular circumstances. Gillenwaters v. State, 205 S.W.3d 534, 536 n.3 (Tex. Crim. App. 2006). In cases where constitutionality is raised, the courts will decide the issue on the narrowest ground possible, which means that, if a statute is found unconstitutional, it will typically be found unconstitutional "as applied." See, e.g., Texas v. Johnson, 491 U.S. 397, 403 n.3, 109 S.Ct. 2533, 2539 n.3, 105 L.Ed.2d 342 (1989).
A facial challenge to the constitutionality of a statute is more difficult for the challenger because, in addressing it, we must presume that the legislature enacted a constitutional law. See State ex rel. Lykos v. Fine, 330 S.W.3d 904, 909 (Tex. Crim. App. 2011). Generally, a facial challenge to a statute is an assertion that the statute always operates unconstitutionally. Gillenwaters, 205 S.W.3d at 536 n.2 (referring to facial challenges for vagueness). An exception to this general rule applies, however, if a statute implicates the First Amendment and is so broad that it may inhibit the constitutionally protected speech of third parties. See New York State Club Ass'n, Inc. v. City of N.Y., 487 U.S. 1, 11, 108 S.Ct. 2225, 2233, 101 L.Ed.2d 1 (1988); see also Scott, 322 S.W.3d at 665 n.3.
Constitutionality of Section 42.11
Under Section 42.11 of the Texas Penal Code, a person commits a criminal offense when he "intentionally or knowingly damages, defaces, mutilates, or burns the flag of the United States or the State of Texas." Tex. Penal Code Ann. § 42.11(a) (West 2011). The First Amendment provides, in relevant part, that "Congress shall make no law . . . abridging the freedom of speech . . . ." U.S. Const. amend. I.
This guarantee of free speech is applicable to the states by the Due Process Clause of the Fourteenth Amendment and generally protects the free communication and receipt of ideas, opinions, and information. Scott, 322 S.W.3d at 668. It is well settled that the burning of an American flag in protest qualifies as expressive conduct triggering the First Amendment's freedom of speech protections. See Johnson, 491 U.S. at 406, 109 S.Ct. at 2540. But not every action taken with respect to the American flag is expressive, and the First Amendment has no application when what is restricted is not protected speech. See id., 491 U.S. at 405, 109 S.Ct. at 2540; Nevada Comm'n on Ethics v. Carrigan, 131 S.Ct. 2343, 2347, 180 L.Ed.2d 150 (2011).
Section 42.11 As Applied to Appellee
In its second issue, the State contends that application of Section 42.11 did not interfere with Appellee's First Amendment rights because his conduct did not constitute symbolic speech. In deciding whether Section 42.11 is constitutional as applied to Appellee, our first step is to determine whether Appellee's actions constitute expressive conduct. See Johnson, 491 U.S. at 403, 109 S.Ct. at 2538.
1. Expressive Conduct
"[T]he First and Fourteenth Amendments have never been thought to give absolute protection to every individual to speak whenever or wherever he pleases or to use any form of address in any circumstance that he chooses." Cohen v. California, 403 U.S. 15, 19, 91 S.Ct. 1780, 1785, 29 L.Ed.2d 284 (1971). In determining whether conduct contains sufficient communicative elements to bring the First Amendment into play, we consider (1) the nature of the communicative activity, (2) the context in which the conduct occurred, (3) whether an intent to convey a particularized message was present, and (4) whether the likelihood was great that the message would be understood by those who viewed it. Johnson, 491 U.S. at 404-05, 109 S.Ct. at 2539-40; Spence v. Washington, 418 U.S. 405, 409-10, 415, 94 S.Ct. 2727, 2730, 2732, 41 L.Ed.2d 842 (1974). The particularized message need not be "a narrow, succinctly articulable message" in order to gain constitutional protection. See Hurley v. Irish-Am. Gay, Lesbian, & Bisexual Group of Boston, 515 U.S. 557, 569, 577, 115 S.Ct. 2338, 2345, 2349, 132 L.Ed.2d 487 (1995) (holding that "in the context of an expressive parade, as with a protest march, the parade's overall message is distilled from the individual presentations along the way, and each unit's expression is perceived by the spectators as part of the whole").
"Pregnant with expressive content, the flag as readily signifies this Nation as does the combination of letters found in „America.'" Johnson, 491 U.S. at 405, 109 S.Ct. at 2540 (citations omitted). The purpose of a national flag is to serve as a symbol of our country, and the courts have found little difficulty in identifying an expressive element in conduct relating to flags. Id., 491 U.S. at 405, 109 S.Ct. at 2540. "The use of [a] flag to symbolize some system, idea, institution, or personality, is a [shortcut] from mind to mind." Id., 491 U.S. at 405, 109 S.Ct. at 2540 (citations omitted).
In Spence v. Washington, the Court held that attaching a peace symbol to an American flag and hanging it upside down from a window, when viewed in light of recent events (invasion of Cambodia and killings at Kent State University occurring a few days prior to the student's arrest), was sufficiently communicative to trigger First Amendment protection. Spence, 418 U.S. at 406, 414-15, 94 S.Ct. at 2728, 2732.
Flag burning by protesters during a political demonstration was also considered expressive conduct in United States v. Eichman and Texas v. Johnson. See United States v. Eichman, 496 U.S. 310, 315, 110 S.Ct. 2404, 2407, 110 L.Ed.2d 287 (1990); Johnson, 491 U.S. at 406, 109 S.Ct. at 2540. Other examples of conduct relating to flags triggering First Amendment protection include slashing a flag and throwing it to the ground to display anger with the government, flying a flag upside down,  and using a flag as decoration inside one's home. See Snider v. City of Cape Girardeau, No. 1:10-CV-10 (CEJ), 2012 WL 942082, at *1 (E.D. Mo. Mar. 20, 2012); Roe v. Milligan, 479 F.Supp.2d 995, 998 (S.D. Iowa 2007); Commonwealth v. Bricker, 666 A.2d 257, 261 (Pa. 1995). We have been unable to locate any cases since Johnson and Eichman where conduct involving a flag was held to be nonexpressive conduct.
2. Appellee's Conduct
It is Appellee's burden to prove that Section 42.11 is unconstitutional as applied to him. See Battles, 45 S.W.3d at 702. In its findings of fact, the trial court states that Appellee "claims that he was upset by racial remarks made about his mother by a local merchant [and] in his anger he says he pulled the flag down and threw it on the ground." Video camera surveillance of the area shows two African American males and one African American female walking on a covered sidewalk next to a building. One male jumped in the distance reaching towards a hanging flag. Then, the second male (Appellee), reached and jumped for the same flag and caused the flag and its staff to come off its post into his hand. Appellee then threw the flag and its staff into the street. It does not appear that anyone other than the male and female walking with Appellee witnessed Appellee's conduct. But Appellee said that shortly after the flag was thrown, someone driving on the street stopped and picked up the flag. The surveillance video shows that at almost the same time Appellee threw the flag into the street, the other male 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, Appellant admitted that he threw the flag into the street. He explained that he threw the flag because he was "mad." The interview also ...