Posted on 3/27/17

In May of 2012, 20-year-old Terrence Johnson entered a hardware store in Lovelady, Texas. According to a report that Johnson later gave police, Johnson, who is African American, was mistreated by a racist store clerk. Johnson, upset over the mistreatment, took an American flag that was in the display window and threw in the street, where passing traffic destroyed the flag. The police arrested Johnson for the Texas crime of destruction of a flag.

The Texas Law

Under the statute, it is illegal to “intentionally or knowingly damage, deface, mutilate, or burn the flag of the United States or the State of Texas.” A “flag” includes any “emblem, banner, or other standard or a copy of an emblem, standard, or banner that is an official or commonly recognized depiction of the flag of the United States or of this state and is capable of being flown from a staff of any character or size,” but does not include “a representation of a flag on a written or printed document.” The penalty for violating this law is up to one year in prison and a $4,000 fine.

Case Goes to Trial

At trial, the defense claimed that the law was unconstitutional because it violated Johnson’s free speech rights. The trial court ruled in favor of Johnson. Prosecutors appealed the ruling, asserting that the free speech rights protect someone who is making a statement, not someone who is acting in a destructive manner. The appellate court ruled that the law does not violate free speech rights, but that the flag destruction law is unconstitutional because it is overbroad. The court reasoned that it criminalized both protected and unprotected speech. The prosecution appealed to the Texas Court of Criminal Appeals but that court upheld the ruling.

Offensive Speech and Free Speech

The Johnson case is one of a number of cases that emphasize how offensive speech is often protected speech. In the Johnson case, many people, including the Texas legislature, found burning the flag offensive. Regardless, the law violated Johnson’s free speech rights. Similarly, a 2011 case wherein a religious group protested at the funeral of a marine who died in Iraq because, according to the group, the military was evil for allowing gays to serve. A court held that the group has free speech rights, even though many people found protesting a marine’s funeral to be offensive.

Similar cases discussing free speech v. criminal law often involve obscenity. The Texas Penal Code has a whole section for obscenities, including criminal penalties. There have been many challenges regarding content deemed too graphic due to sexual content or extreme violence. One example is the crusher case from the United States v. Stevens, wherein Stevens sold video that depicted a high-heeled shoe crushing a cat to give viewers a sexual thrill. The legislature passed a law that bans such videos based on animal cruelty. The court ruled the law overbroad and unconstitutional because the law would ban videos about animal cruelty, even videos that educate people about the subject.

If your free speech rights are being threatened by a criminal law, contact the law firm of Christopher Abel, an experienced Texas criminal defense attorney.

(image courtesy of Jakob Owens)

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