Appeals court invalidates state's flag-burning law

AUSTIN - Twenty-six years after the U.S. Supreme Court tossed out Texas' flag-desecration law as unconstitutional, the state Court of Criminal Appeals on Wednesday invalidated the revised version.

In a 35-page decision, the Texas Court of Criminal Appeals ruled the state law that prohibits anyone from damaging, defacing, mutilating or burning the U.S. or Texas flag "is invalid on its face because it is unconstitutionally overbroad in violation of the First Amendment" to the U.S. Constitution.

The decision came in an appeal involving Terence Johnson, a resident of the East Texas town of Bedias, who was charged with grabbing a U.S. flag that was hanging on a staff outside a Houston County hardware store and tossing it into a highway, where it was run over by traffic and damaged. The man, then 20, claimed at the time that he tossed the flag into the road because he was upset about "racial remarks made about his mother by a local merchant."

Johnson is African-American.

The charge was dismissed as unconstitutional by a local judge, and the state appealed that decision on grounds that Johnson's anger exempted his actions from coverage as First Amendment freedom of speech. A Tyler appeals court ruled the state law unconstitutional because it "was not sufficiently narrow to prevent the chilling effect on the exercise of First Amendment freedoms."

In appealing to that decision to Texas' highest court for criminal cases, the state argued that that Johnson's flag-desecration was "really just criminal mischief in relation to the flag."

The Court of Criminal Appeals disagreed, by a vote of 6-3.

Attorneys for Johnson and the state could not immediately be reached for comment.

But with a conservative Republican Legislature that has repeatedly frowned on flag desecration, the invalidated law is almost certain to get a rewrite when lawmakers convene in January 2017 to try to make it enforceable once again.