AUSTIN, Texas (AP) — Texas’ ban on flag desecration is unconstitutional, a state court ruled Wednesday, invalidating a seldom-enforced ban that lawmakers enacted in 1989 after the U.S. Supreme Court struck down nearly identical legislation on First Amendment grounds.
This time, the Texas Court of Criminal Appeals tossed the law, calling the 26-year-old misdemeanor “invalid on its face” in a challenge brought by a black man who says he angrily threw a storefront U.S. flag into the street after a run-in with a racist clerk.
“The Texas flag-destruction statute, by its text and its actual fact, prohibits a substantial amount of activity that is protected by the First Amendment,” said Republican Judge Sharon Keller, writing the 6-3 majority opinion.
Terrence Johnson was 20 years old in 2012 when he was arrested and spent more than a month in jail in the small town of Lovelady. He faced up to a year in prison and a $4,000 fine if convicted, though the case hasn’t gone to trial because of the legal fight.
Prosecutors in rural Houston County argued that Johnson grabbing the flag and throwing it into the street wasn’t an expression of speech but a random act of anger. The Republican-dominated appeals court, however, found that throwing a flag down could easily be protected expression.
Johnson’s attorney, Joshua Liles, said anyone who respects free speech should welcome the law being knocked down.
“It was protecting the U.S. and the Texas state flag, which made it a very emotional issue for everyone involved. But you can’t lose sight of the First Amendment,” he said, noting he has never come upon another instance in which someone had been prosecuted for flag desecration under the law.
Texas lawmakers could again take another crack in the 2017 session, though the courts have struggled with imagining a way in which being prosecuted for damaging a flag would be constitutional.
“As long as a statute remains on the books, the threat of ‘irresponsible’ use remains,” Keller wrote.