stating that “under the First Amendment’s ‘overbreadth’ doctrine, a law -3- 04-19-00438-CR & 04-19-00450-CR may be declared unconstitutional on its face, even if it may have some legitimate application and even if the parties before the court were not engaged in activity protected by the First Amendment”
How later courts described this case
- stating that “under the First Amendment’s ‘overbreadth’ doctrine, a law -3- 04-19-00438-CR & 04-19-00450-CR may be declared unconstitutional on its face, even if it may have some legitimate application and even if the parties before the court were not engaged in activity protected by the First Amendment”
- holding challenged statute must prohibit substantial amount of protected expression and danger of unconstitutional -8- 04-18-00127-CR application cannot be based on fanciful hypotheticals
- distinguishing jurisdictional injury-in-fact requirement from prudential requirement that party generally may not assert the rights of others
- “The statute must prohibit a substantial amount of protected expression, and the danger that the statute will be unconstitutionally applied must be realistic and not based on ‘fanciful hypotheticals.’”
Written by the judges who cited it.
The opinion
DISSENTING OPINION
Meyers, J.,
filed a dissenting opinion.
I disagree that the destruction-of-a-flag statute is unconstitutionally overbroad. The statute is actually quite specific; “A person commits an offense if the person intentionally or knowingly damages, defaces, mutilates, or burns the flag of the United States or the State of Texas.” Tex. Penal Code § 42.11. It serves to keep people from destroying a symbol of our nation and state, which is exactly what Appellee did here. By all accounts, he was not attempting to make any type of statement, so his conduct is not protected under the First Amendment. Although it is the *885 flag’s symbolism that provides it specialized protection under this statute, its use as a symbol of expression is exempted from prosecution and thus the limited enforcement of the statute will not produce a chilling effect on protected conduct. The State could just as.easily promulgate a statute prohibiting the killing of a mockingbird, which as the.State bird of Texas also has great symbolism, without- infringing on the freedom of expression.
Because it is overkill to declare this statute unconstitutional when the -real question is merely whether the State had sufficient evidence to convict Appellee of destruction of a flag, I respectfully dissent.