Johnson v. State

• Decision Date: 20 April 1988
• Docket Number: No. 372-86,372-86
• Citation: 755 S.W.2d 92
• Parties: Gregory Lee JOHNSON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 92

755 S.W.2d 92

Gregory Lee JOHNSON, Appellant, v. The STATE of Texas, Appellee.

No. 372-86.

Court of Criminal Appeals of Texas En Banc.

April 20, 1988.

Rehearing Denied June 8, 1988.

Stay Granted and Mandate Recalled Oct. 11, 1988.

See 109 S.Ct. 216.

Certiorari Granted Oct. 17, 1988.

See 109 S.Ct. 257.

Stanley I. Weinberg, Douglas W. Skemp, Dallas, for appellant.

Henry Wade, Former Dist. Atty. and John Vance, Dist. Atty., and Kathi Alyce Drew, John D. Nation and Mike Gillett, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

CAMPBELL, Judge.

Appellant was convicted, after a jury trial, of desecration of a venerated object. V.T.C.A., Penal Code § 42.09(a)(3). ¹ Punishment was assessed at one year's confinement in the Dallas County Jail and a $2,000 fine. The Dallas Court of Appeals affirmed. Johnson v. State, 706 S.W.2d 120 (Tex.App.--Dallas 1986). We granted the appellant's petition for discretionary review to determine (1) whether V.T.C.A. Penal Code, § 42.09(a)(3) violates Art. I, sec. 8 of the Texas Constitution or the First Amendment to the United States Constitution, and (2) whether the prosecutor's closing argument during the punishment phase of the trial denied appellant a fair trial. ² We hold that the First Amendment to the U.S. Constitution obviates appellant's conviction under section 42.09(a)(3) and we will remand.

Appellant was arrested during the Republican National Convention in Dallas on August 22, 1984. He was involved with a series of demonstrations against the policies of the Reagan Administration and the Republican Party. These protests culminated with a rally in front of the Dallas City Hall with the burning of an American flag and political chants. The record indicates that these demonstrations were not violent and that police officers and representatives of the news media were present. After the flag had been burned, a spectator gathered the remains for burial in his backyard. Approximately 30-45 minutes later, more Dallas police arrived to arrest appellant and several other demonstrators. ³

The Court of Appeals rejected appellant's claim that section 42.09 is impermissibly vague, holding that the statute gives adequate warning as to what conduct is prohibited. That court also found that appellant's conduct amounted to protected speech, within the meaning of the First Amendment, but, relying on Deeds v. State, 474 S.W.2d 718 (Tex.Cr.App.1971), ⁴ found that the State's interest in regulating this symbolic speech outweighed appellant's First Amendment rights. ⁵

In his petition for discretionary review, appellant reurges his arguments made in the Court of Appeals on the constitutionality of the statute under which he was convicted. ⁶ This argument asserts vagueness and overbreadth as reasons for declaring section 42.09 unconstitutional. The State asserts two interests in support of section 42.09(a)(3): (1) to prevent breaches of the peace and (2) to preserve the flag as a symbol of national unity and counters by restating the positions advanced by the Court of Appeals.

In analyzing a symbolic speech question, the proper methodology requires the reviewing court to first determine whether a defendant's acts fall within the First Amendment. See, e.g., Spence v. Washington 418 U.S. 405, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974); Tinker v. Des Moines Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969); Monroe v. State Court of Fulton Co., 739 F.2d 568 (11th Cir.1984); c.f. United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). The Dallas court held that, by burning a flag, appellant "intended to convey a particularized message ... and that this message was very likely to be understood by those who viewed it." Johnson, supra at 123. There is no reason for us to reach a different conclusion. The United States Supreme Court has held a number of activities to be protected "speech." Spence, supra (affixing a peace symbol to a flag); Tinker, supra (wearing of black arm bands); West Virginia State Board of Education v. Barnette, 319 U.S. 624, 632-34, 63 S.Ct. 1178, 1182-83, 87 L.Ed. 1628 (1943) (not saluting the flag being protected by the First Amendment's speech provision); c.f. O'Brien, supra (Court refusing to decide whether draft card burning is speech). Given the context in which appellant burned the flag, "it would have been difficult for the vast majority of citizens to miss the drift of appellant's point at the time that he made it." Spence, supra 418 U.S. at 410, 94 S.Ct. at 2730. Conduct falls within the ambit of the First Amendment when the actor shows "an intent to convey a particularized message ... and in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it." Id. at 410-11, 94 S.Ct. at 2730. Given the context of an organized demonstration, speeches, slogans, and the distribution of literature, anyone who observed appellant's act would have understood the message that appellant intended to convey. The act for which appellant was convicted was clearly "speech" contemplated by the First Amendment.

Falling within the umbrella of First Amendment protection will not shield speech from all government regulations. E.g., Metromedia, Inc. v. San Diego, 453 U.S. 490, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981); Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981); Adderley v. Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966). Therefore, we must undertake to weigh the interests which the State asserts in support of section 42.09(a)(3).

The first interest averred offered by the State is the prevention of breaches of the peace which would likely be attendant to acts of flag desecration. A State may prevent breaches of the peace by limiting speech. Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942); see also Ex parte Meckel, 87 Tex.Cr.R. 120, 220 S.W. 81 (1919). Legitimacy of a State interest, however, is not enough to bring the regulation of protected speech into compliance with First Amendment protection. The Supreme Court has repeatedly held that restrictions on speech must be very carefully tailored to meet a state's legitimate interests. ⁷

Limiting the criminalization of flag desecration to incidents where it is likely to cause "serious offense" is a proper step toward narrowly tailoring the statute to the State's interest. Still, section 42.09(a)(3) is so broad that it may be used to punish protected conduct which has no propensity to result in breaches of the peace. "Serious offense" does not always result in a breach of the peace. The protest in this case did not lead to violence. As with most other protests of this nature, police were present at the scene. A witness was obviously "seriously offended" by appellant's conduct because he gathered the burned flag and buried it at his home; nevertheless, though "seriously offended", this man was not moved to violence. "Serious offense" occurred, but there was no breach of peace nor does the record reflect that the situation was potentially explosive. One cannot equate "serious offense" with incitement to breach the peace.

When a statute which restricts speech is under attack for overbreadth, the existence of another legislative alternative which would further the goal of the challenged statute may be used to prove that the challenged statute is overbroad. Very recently, the Supreme Court decided a challenge to an ordinance in the District of Columbia. Boos v. Barry, 485 U.S. 312, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988). The ordinance made it unlawful to, within 500 feet of a foreign embassy, display any sign that tends to bring the foreign government into "public odium or public disrepute." Noting that Congress had provided a less restrictive alternative, 18 U.S.C. § 112(b)(2), which served the same interest as the challenged ordinance, the Court wrote:

[W]e conclude that the availability of alternatives such as § 112 amply demonstrates that the display clause is not crafted with sufficient precision to withstand First Amendment scrutiny. It may serve an interest in protecting the dignity of foreign missions, but it is not narrowly tailored; a less restrictive alternative is readily available. Thus, even assuming for present purposes that the dignity interest is "compelling," we hold that the display clause of § 22-1115 is inconsistent with the First Amendment.

Boos, supra 485 U.S. at ----, 108 S.Ct. at 1168.

For example, section 42.01 of the penal code states:

(a) A person commits an offense if he intentionally or knowingly:

(1) uses abusive, indecent, profane, or vulgar language in a public place, and the language by its very utterance tends to incite an immediate breach of the peace;

(2) makes an offensive gesture or display in a public place, and the gesture or display tends to incite an immediate breach of the peace....

V.T.C.A. Penal Code, § 42.01 (emphasis added). The existence of a statutory scheme other than section 42.09 which addresses the same basic interest in a less restrictive manner indicates that the legislature is aware of and able to implement an alternative to the language of section 42.09. Section 42.01, like section 112 in Boos, proves that the challenged statute, as it relates to breaches of the peace, is too broad for First Amendment purposes.

The second interest asserted by the State is that of preserving the flag as a symbol of unity. In Spence, supra, the Court refused to decide the validity of a state's interest in preserving the flag as a national symbol. Id. 418 U.S. at 413-14, 94 S.Ct. at 2731-32. Instead, the Court assumed arguendo the validity of the interest, and held Washington's flag misuse statute to be unconstitutional. Id. at 414-15, 94 S.Ct. at 2732-33. ⁸ The Supreme...