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Texas’ Highest Criminal Court To Decide If State Law On U.S. Flag Is Unconstitutional

Jennifer Parr

The state’s highest criminal court will soon decide on whether a Texas law, banning the desecration of the flag, is constitutional. The attorneys for defendant Terrance Johnson, who said his right to despoil the flag was protected under the First Amendment, have said freedom of speech and expression should not be contingent on the method used to destroy a flag.

Here’s the short version. In 1984, an angry young man named Gregory Johnson, accompanied by fellow protestors, marched to Dallas’ City Hall and poured kerosene over a U.S. flag, before setting it afire, accompanied by anti-US and anti-Reagan Administration chants. Dallas, at that time, was hosting the Republican National Convention and the burning of the flag, to these men, was heavily symbolic.

Johnson was arrested for desecrating the flag, convicted for a year, and appealed to the 5th Circuit Court of Appeals, which ruled against him. He then appealed to the state’s Criminal Court of Appeals, which ruled for him, and stated he was protected under the First Amendment (by virtue of his act being an expression of political protest). In 1989, the U.S. Supreme Court, in Johnson v. Texas, decided that burning the national flag fell under the Constitution’s Right to Freedom of Speech and Expression and struck down Texas’ law as unconstitutional, the Texas legislature promptly, and quietly, put in place a revised, similar replacement law.

Fast-forward to 2012, and a different Johnson, Terrence, this time. Another angry young man, Johnson, who is black, was upset with the allegedly racist behavior of a shop clerk, threw out a display flag into a busy street, where it was run over.

Johnson's attorney, Josh Liles, said, “People have a respect for the US-flag and have a respect for the Texas-flag, and the value of that flag as a symbol is going to be diminished if we say your respect is dictated by the government.” That is possibly one way of looking at it.

Liles said Texas’ law concerning flag-desecration is vague and that his client should’ve been charged with the destruction of private property, not the stricter law concerning flag-desecration.

“The court brought up the fact that the statute as written does not differentiate between private property and state-owned property,” said Liles.

He said, essentially, as the law is written, a private property owner could be charged with violating Texas’ flag-desecration law even if the flag was destroyed in the privacy of their home.  A violation of Texas’ law now carries a punishment of 1-year behind bars and a $4,000-fine.  

This Johnson-case could very well go all the way to the Supreme Court.

Ryan started his radio career in 2002 working for Austin’s News Radio KLBJ-AM as a show producer for the station's organic gardening shows. This slowly evolved into a role as the morning show producer and later as the group’s executive producer.