Amicus Curiae Brief — Texas v. Johnson

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88-155 “UBreRe Court Us

No. PIL p A

Iu The | sewer

Supreme Court Of Che Ut

OCTOBER TERM, 1988

STATE OF TEXAS,

Petitioner,

GREGORY LEE JOHNSON,

Respondent.

ON WRIT OF CERTIORARI TO THE

TEXAS COURT OF CRIMINAL APPEALS

BRIEF OF THE LEGAL AFFAIRS COUNCIL

AS AMICUS CURIAE

Wyatt B. Durrette, Jr.

Counsel of Record

Bradley B. Cavedo

McCARTHY & DURRETTE, P. C.

700 East Main Street, Suite 1201

Richmond, Virginia 23219

(804) 780-0505

Counsel for Amicus Curiae

LAWYERS PRINTING COMPANY 7th & Franklin Bidg Richmond. Virginia 23219 (804) 648 - 3664

TABLE OF CONTENTS

TABLE OF AUTHORITIES

INTERESTS OF THE LEGAL

AFFAIRS COUNCIL .

SUMMARY ARGUMENT

THE PUBLIC BURNING OF AN

AMERICAN FLAG DURING THE

COURSE OF A POLITICAL

DEMONSTRATION DOES NOT

CONSTITUTE FREE SPEECH

SUBJECT TO THE PROTECTION

OF THE FIRST AMENDMENT.

ASSUMING THAT DESECRATION

OF THE AMERICAN ' FLAG

CARRIES SOME FIRST

AMENDMENT PROTECTION, THE

STATE OF TEXAS MAY PROPERLY

RESTRICT CERTAIN CONDUCT IN

ORDER TO PROTECT NATIONAL

EMBLEMS AND OTHER VENERATED

OBJECTS. oo ae

BOOS V. BARRY DOES NOT

CONTROL THIS CASE BECAUSE

THE TEXAS STATUTE IS A

CONTENT-NEUTRAL REGULATION

r z i. mY

- nt- e

Either the Renton Test or

t bd j —_ j " J J

a. The National

Emblem. > ee

b. Preserving the

Peace.

3. A Reasonable Alternative

B. EVEN IF SECTION 42.09 IS

HELD TO BE A CONTENT~BASED

RESTRICTION OF SPEECH, THE

TEXAS STATUTE SURVIVES THE

BOOS/ PERRY TEST. se «

sO te Was

WwW e to

Satisfy the Asserted

Government Interest. °

2. No Protection for Violent

———i oe - « ¢€ © «¢ © « e

ie 4 ion.

CONCLUSION ...... -

TABLE OF AUTHORITIES

Vv ’

482 U.S. , 107 S.Ct. 2568,

96 L.Ed.2d 500 (1987) ..... -

Boos v. Barry,

485 U.S. , 108 S.Ct. 1157,

99 L.Ed.2d 333 (1988) ..... . passim.

Cantwell v. Connecticut,

310 U.S. 296, 60 S.Ct. 900,

C6 Ses Bee See sk a os onde Ms

Carey v. Brown,

447 U.S. 455, 100 S.Ct. 2286,

65 L.Ed.2da 263 (1980) .......

Chaplinsky v. New Hampshire,

315 U.S. 568, 62 S.Ct. 766,

OG Bs Be Cees 8 lt we tlt lk tt Re

Clark v. Community for

Cc Vv -

468 U.S. 288, 104 S.Ct. 3065,

82 L.Ed.2d 21 ( Cis 6, ws — a ewe

Coates v. City of Cincinnatti,

402 U.S. 611, 91 S.Ct. 1686,

29 L.B4.24@ 214 (1971) .« « « « « «

Co Vv.

Publi : z :

447 U.S. 530, 537, 65 L.Ed.2d, 319,

100 S.Ct. 236 (1986) .... +2

iii

Cornelius v. NAACP Legal

473 U.S. 788, 105 S.Ct. 3439,

87 L.Ed.2d 567 (1985) - *% © 2

Cramp _v. Board of

Public Instruction,

368 U.S. 278, 82 S.Ct. 275,

7 be 36 B66 C1963) «tt tlt tt

Deeds _v. State,

474 S.W.2da 718

(Tex. Cr. App. 1972) ..

Delorme v. State,

488 S.W.2d 808

(Tex. Cr. App. 1973) eesseses as

7 —_— 51

& Ice Co.,

336 U.S. 490 (1949) ......

Grayned v. City of Rockford,

408 U.S. 104, 92 S.Ct. 2294,

33 &. 08.98 B88 (5978) . 1. et ew A“,

Halter v. Nebraska,

205 U.S. 34, 27 S.Ct. 419,

S51 L.Ed. 696 (1907) .....e«-

H 4 j ie

for Krishna Consciousness, Inc.,

452 U.S. 640, 101 S.Ct. 2559,

69 L.Ed.2d 298 (1981) ......

Jo Vv P

706 S.W.2d 120

(Tex. App. Dallas 1986) ... . . Das

Johnson v. State,

755 S.W.2d 92 (1988) oe «we « s SERED.

385 U.S. 589, 87 S.Ct.

17 L.Ed.2d 629 (1967)

Kunz v. New York,

340 U.S. 290, 71 S.Ct.

95 L.Ed. 280 (1951) .

Lanzetta v. New Jersey,

306 U.S. 451, 59 S.Ct.

83 L.Ed. 888 (1939) .

v 9

ts,

675,

312,

618,

’

571 F.Supp. 1023 (N.D. Ga. 1983)

rev. on other grounds,

739 F.2d 568 (llth Cir.

Perry Education Assn. v.

460 U.S. 37, 103 S.Ct. 948,

74 L.Ed.2d 794 (1983)

408 U.S. 92, 925 S.Ct.

33 L.Ed.2d 212 (1972)

1984) .

Ss 7

2286,

475 U.S. 41, 106 S.Ct. 925,

5, 10,

89 L.Ed.2d 29 (1986)

Roth v. United States,

354 U.S. 476, 77 S.Ct.

1 L.Ed.2d 1498 (1957)

mj v. Go .

415 U.S. 566, 94 S.Ct.

34 L.Ed.2d 605 (1974)

Spence v. Washington,

418 U.S. 405, 94 S.Ct.

41 L.Ed.2d 842 (1974)

1304,

State v. Farrell,

223 N.W.2d 270 (Iowa 1974)

app. dismissed, 421 U.S. 1007,

95 S.Ct. 2410,

44 L.Ed.2d 675 (1975) .

State v. Mitchell,

32 Ohio App.2d 16,

288 N.E.2d 216 (1972) ea eer

State v. Royal,

113 N.H. 224,

305 A.2d 676 (1973) ......

State v. Waterman,

190 N.W.2d 809 (Iowa 1971) . 30,

4 Ww ,

294 U.S. 576, 89 S.Ct. 1354,

226 L.Ed.2d 572 (1969) .... 6,

283 U.S. 359, 51 S.Ct. 532,

73 beB@. 1337 (39313) ...« «

Sutherland v. DeWulf,

223 F.Supp. 740

MD) Re | ee >

U.S. v. Grace,

461 U.S. 171, 103 S.Ct. 1702,

78 &eMR. 38 FOG C1963) « « « ee

U.S. v. O'Brien,

391 U.S. 367, 88 S.Ct. 1673,

20 L.Ed.2d 672 (1968) ... 8, 19,

U.S. v. Petril}

’

332 U.S. 1, 67 S.Ct. 1538,

91 L.Ed. 1877 (1946).

U.S. Vv. Robel,

389 U.S. 258, 88 S.Ct. 419,

19 L.Ed.2d 508 (1967)

26,

33,

20,

Vv —

402 U.S. 363, 91 S.Ct. 1400,

ao temmcee Gee C4078) « sc ec ew te et ew 6S

Virginia PI

Virginia Consumer Council, Inc.,

425 U.S. 748, 96 S.Ct. 1817,

48 L.Ed.2d 346 (1976) ....... 14

West Virginia State Board of

319 U.S. 624, 63 S.Ct. 1178,

lO ee

Winters v. New York,

333 U.S. 507, 68 S.Ct. 665,

92 L.Ed. 840 (1948) ......... 58

- ’

458 U.S. 747, 102 S.Ct. 3348,

73 L.Ed.2d 1113 (1982) ....... # «57

CONSTITUTIONAL PROVISIONS:

U.S. Const. amend. I ..... passim.

Come Giese GUNME. Bw cco veertevns ae

U.S. Comst. amend. XIV ......9, 46

STATUTES:

Article 152, Vernon's Ann. P.Cc. o « $2

Tex. Penal Code Ann. Sec. 42.09

(Vernon 1974) ...... passin.

OTHER AUTHORITIES:

Rosenblatt; Flag Desecration Statutes:

History and Analysis, 1972 Wash.

U. Le. Q. 173 (1972) oe eae ote on

vii

No. 88-155

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1988

State of Texas,

Petitioner,

Vv.

Gregory Lee Johnson,

Respondent.

INTERESTS OF THE LEGAL

AFFAIRS COUNCIL

The Legal Affairs Council is a

non-profit organization dedicated to

preserving the inherent and

constitutional rights of the people. Of

the highest priority to the Legal Affairs

Council is the protection of individual

liberty guaranteed by the First Amendment

to the Constitution. The Legal Affairs

Council, with the written approval of

both petitioner and respondent on file in

the Clerk's office, submit this amicus

curiae brief in support of the

petitioner, the state of Texas.

This brief focuses primarily on

application of Boos v. Barry, 485 U.S.

, 108 8.Ct. 1357, We L.Ed.2d 333

(1988) to the facts of this case. Our

conclusion is that the holding of this

Court in Boos does not control and was

misapplied by the Texas Court of Criminal

Appeals to the instant facts. The Legal

Affairs Council appeared in the Boos case

as an amicus, urging that the statute at

issue there be struck down as an

unconstitutional infringement on free

speech. The Texas Court of Criminal

Appeals relied heavily on Boos in holding

that Texas Penal Code Section 42.09

<<<

(Vernon 1974) was unconstitutional in its

application to Johnson. Because of its

involvement in the Boos case, the Legal

Affairs Council wishes to distinguish the

Court's holding in Boos from the facts in

this case and to argue the reasons why

Boos should not have been applied by the

Texas Court. The conclusion of the

amicus curiae is that section 42.09 did

not impose restrictions on Johnson's free

speech rights, or in the alternative,

that section 42.09 is a content-neutral

restriction on conduct mixed with

elements of speech, and thus under either

approach, Boos is inapplicable.

Additionally, we contend that the state

of Texas has a substantial interest both

in protecting the American flag as a

symbol of our country and in preventing

breaches of the peace, and these

interests are clearly sufficient to

satisfy the test in Boos for scrutiny cf

laws that infringe on free speech.

SUMMARY OF ARGUMENT

The challenged statute, section

42.09, is not a regulation of speech, but

a regulation of conduct. It prohibits

desecration of the American flag, and

Johnson violated the statute by publicly

burning the flag. The statute did not

affect Johnson's free speech rights, but

regulated his conduct. There is no First

Amendment protection for such conduct.

However, assuming, for the sake of

argument, that this Court will find

Johnson's conduct to be ae form of

protected speech, we submit that Texas

has a constitutional right to restrict

such conduct in order to protect national

emblems and other venerated objects.

The Texas Court of Criminal

Appeals analyzed section 42.09 as a

content-based restriction on speech and

applied the rule in this Court's opinion

in Boos v. Barry as authority for

reversing Johnson's’ conviction for

vioiating section 42.09. We submit that

Boos does not control this case because

the Texas statute is a content-neutral

regulation of conduct. As such, the

statute meets the test for

constitutionality most recently stated in

Renton v. Playtime Theaters, Ine., 475

U.S. 41, 106 S.Ct. 925, 89 L.Ed.2da 29

(1986).

Should this Court determine that

section 42.09 is in fact a content-based

restriction on symbolic speech, we submit

that the statute meets the test in Boos

for such restrictions and that the Texas

Court misapplied Boos to the facts before

St.

The statute serves a compelling

governmental interest and is narrowly

tailored to suit that need. The statute

is a constitutional regulation of conduct

that leaves open reasonable alternative

avenues of expression.

ARGUMENT

Le THE PUBLIC BURNING OF AN AMERICAN

FLAG DURING THE COURSE OF A

POLITICAL DEMONSTRATION DOES NOT

CONSTITUTE FREE SPEECH SUBJECT TO

THE PROTECTION OF THE FIRST

AMENDMENT.

It is the position of the amicus

curiae that the act of flag burning no

more rises to the level of protected

speech than the act of burning a car to

protest air pollution or traffic

congestion, the act of burning a

courthouse to protest a judicial

decision, or the act of burning a ROTC

building to protest the Vietnam War. See

e.g., Street v. New York, 394 U.S. 576,

SiG, SS §.Ct. 3354, 22 L.86.24@ 5§72,

(1969) (Fortas, J., dissenting); Smith v.

Goguen, 415 U.S. 566, 593-94, 94 S.Ct.

1242, 34 L.Ed.2d 605 (1974) (Rehnquist,

J., dissenting); Cantwell v. Connecticut,

310 U.S. 296, 303-04, 60 S.Ct. 900, 84

L.Ed. 1213 (1940). "[{Tjhe right of free

speech is not absolute at all times and

under all circumstances." Chaplinsky v.

New Hampshire, 315 U.S. 568, 571, 62

S.Ct. 766, 86 L.Ed. 1031 (1942).

This Court has long recognized,

for example, that some forms of

expression are not entitled to- any

protection at all under the First

Amendment, despite the fact that they

could reasonably be thought rrotected

under its literal language. See Roth

v. United States, 354 U.S. 476, 77

S.Ct. 1304, 1 L.Ed.2d 1498 (1957).

Spence v. Washington, 418 U.S. 405, 417,

94 S.Ct. 2727, 41 L.Ed.2d 842 (1974)

(Rehnquist, J., dissenting). We rely on

the petitioner, however, to make this

argument, and turn instead to the

alternative question presented in the

Petition for Certiorari, discussed below.

Il. ASSUMING THAT DESECRATION OF THE

AMERICAN FLAG CARRIES SOME FIRST

AMENDMENT PROTECTION, THE STATE OF

TEXAS MAY PROPERLY RESTRICT

CERTAIN CONDUCT IN ORDER TO

PROTECT NATIONAL EMBLEMS AND OTHER

VENERATED OBJECTS.

Under the facts of this case,

Johnson's burning of an American flag

stelen from a nearby building was not

protected speech, symbolic or otherwise.

However, assuming, arguendo, that this

Court will find Johnson's destruction of

the flag to be a form of symbolic speech,

Spence _v. Washington, 418 U.S. 405, 94

S.Ct. 2727, 41 L.Ed.2d 842 (1974), U.S.

v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673,

20 L.Ed.2d 672 (1968); the question then

becomes whether such conduct _ could be

restricted by the state of Texas.

For the reasons that follow, we

conclude that Texas has a legitimate,

substantial interest in outlawing

desecration of national emblems and other

venerated objects, and that interest

outweighs any First and Fourteenth

Amendment protection that may attach to

Johnson's conduct.

A. BOOS v. BARRY DOES NOT CONTROL

THIS CASE BECAUSE THE TEXAS

STATUTE IS A CONTENT-NEUTRAL

REGULATION OF CONDUCT.

In Boos Vv. Barry, 485 U.S. .

108 S.Ct. 1157, 99 L.Ed.2d 333 (1988),

this Court struck down a provision of the

District of Columbia Code that made it

unlawful to display within 500 feet of a

foreign embassy any sign tending to bring

a foreign government into public cdium or

disrepute. The Court found the statute

to be a "content-based" restriction on

political speech in a public forum, id.,

99 L.Ed.2ad at 343, and therefore,

subjected the statute to "the most

exacting scrutiny." Id., 99 L.Ed.2d at

345. The statute was content-based

because it completely prohibited one

category of speech within 500 feet of an

embassy, while all other catagories of

speech, such as favorable speech about a

government or speech concerning a labor

dispute with a foreign government, were

permitted. Id., 99 L.Ed.2d at 343.

As a content-based restriction,

the statute was analyzed by this Court in

accordance with separate legal theories;

the Renton test and the Perry test. Id.,

99 L.Ed.2d at 344-45, Renton v. Playtime

ate c., 475 U.S. 41, 106 S.Ct.

925, 89 L.Ed.2d 29 (1986); Perry

ati —_ 7

Assn., 460 U.S. 37, 103 S.Ct. 948, 74

L.Ed.2d 794 (1983). The Renton analysis

was used to classify the statute as

either "content-based" or "“content-

neutral," but it failed to gain the

support of a majority of Justices. Boos,

99 L.Ed.2d at 353 (Brennan, Jes

concurring in part and concurring in the

judgment).

The Perry test indicates that

content-based restrictions on political

speech in public forums should be

subjected to “the most exacting

scrutiny." Boos, 99 L.Ed.2d at 345.

"Thus, we have required the State to show

that the ‘regulation is necessary to

serve a compelling state interest and

that it is narrowly drawn to achieve that

end.'" Id., 99 L.Ed.2d at 345. Perry,

460 U.S. at 45; Board of Airport

Jesus, 482 U.S. ___, 107 S.Ct. 2568, 96

L.Ed.2d 500 (1987); Cornelius v. NAACP

Legal Defense and Educational Fund, Inc.,

473 U.S. 788, 800, 105 S.Ct. 3439, 87

L.EG.2d 567 (1985); U.S. v. Grace, 461

U.S. 171, 177, 103 S.Ct. 1702, 75

L.Ed.2d 736 (1983).

The Perry test, as relied upon in

Boos, was the foundation for the Texas

Court of Criminal Appeals' reversal of

Johnson's conviction below. Johnson v.

State, 755 S.W.2d 92, 96 (1988). But the

reasoning of the Texas court is flawed

because it reached the Boos/Perry test

without first analyzing the Texas

desecration statute to determine whether

it is a = ed restriction on

speech. We conclude, and submit that

this Court should conclude, that the

statute is clearly content-neutral.

Hence, the Perry analysis should not have

been applied to the facts in Johnson, and

the Texas court's reliance on Boos as

constitutional authority for reversing

Johnson's conviction was inappropriate.

Furthermore, the Texas court ignored a

fundamental difference between the

"classic political speech" at issue in

Boos, 99 L.Ed.2d at 343, and the

pointless, violent desecration of a

national emblem at issue in Johnson.

This compounds the Texas court's error in

relying on Boos.

In Boos, Justice O'Conner wrote

that the total prohibition of peaceful

display of signs containing words or

Slogans that might offend foreign

dignitaries was a content-based

restriction on speech.

[W]e have held that a regulation that

‘does not favor either side of a

political controversy' is nonetheless

impermissible because the 'First

Amendment's hostility to content-based

regulation extends. ; ; to

prohibitions of public discussion of an

entire topic.' Consolicated Edison Co.

v. Public Service Comm'n., 447 U.S.

530, 537, 65 L.Ed.2d, 319, 100 S.Ct.

236 (1986). Here the government has

determined that an entire category of

speech--signs or displays critical of

foreign governments--is not to be

permitted.

Boos, 99 L.Ed.2d at 344.

The Court then defined content-

neutral restrictions on speech as those

that “are justified without reference to

the content of the regulated speech,"

Id. (emphasis original), Renton, 475 U.S.

41, 48, 96 S.Ct. 1817 (1986), Virginia

Pharmacy Board v. Virginia Consumer

Council, Inc., 425 U.S. 748, 771, 96

S.Ct. 1817, 48 L.Ed.2d 346 (1976). One

need not look only to the speech being

regulated, Justice O'Conner wrote, but

also to the justifications for the

regulation. "So long as the

justifications for the regulation have

nothing to do with content .. . we

concluded that the regulation was

properly analyzed as content-neutral."

Boos, 99 L.Ed.2d at 344. But see

concurrence of Justice Brennan at 353, in

which a call for use of the traditional

"bright-line" test is made.1}

The Texas statute at issue here

meets either the Renton or the "bright-

line" test. The statute does not

lin his concurrence, Justice

Brennan, joined by Justice Marshall,

stated his preference for the traditional

approach. "(Tjhe Renton analysis

provides none of the clear lines or

sanctuaries the First Amendment demands."

Boos, 99 L.Ed.2d at 354. Brennan called

for use of the "“bright-line” rule: "any

restriction on speech, the application of

which turns on the content of the speech,

is a content-based restriction regardless

of the motivation that lies behind it."

Id.

The traditional rule thus provides

clear guidance. Governments can

ascertain the scope of impermissible

regulation. Individuals can ascertain

the scope of their constitutional

protection. The Renton analysis, in

contrast, plunges courts into the

morass of legislative motive, a

notoriously hazardous and indeterminate

inquiry, particularly where, as under

the Renton approach, the posited

purpose flies in the face of plain

statutory language.

Id. While the choice of tests is an

apparently unresolved doctrinal matter

for the Court, we submit that section

42.09 remains clearly content-neutral

under the Renton analysis or the

traditional “bright-line" rule.

regulate speech at all. It prohibits

certain conduct by providing punishment

for any person who desecrates a venerated

object, defined as a state or national

flag, a public monument, a place of

burial or worship. Johnson v. State, 706

S.W.2d 120, 122 (Tex.App. Dallas 1986).

The statute makes no distinction

whatsoever between favorable or

unfavorable speech. It merely states

that certain objects shall not be

desecrated. Furthermore, the

justification for the statute Clearly and

plainly has nothing to do with the

content of speech. The obvious

justification is to prevent destructior

or defacement of objects that the people

of Texas have decided should not be

destroyed or defaced. While it may be

unlikely that the desecration of a

venerated object would be performed by

those espousing patriotic themes, it is

not impossible. The point is, such

conduct is prohibited at all times for

all reasons. Accordingly, the statute is

"“content-neutral."

In Renton, where a zoning

Ordinance banning adult motion picture

theaters within 1,000 feet of residential

neighborhoods was in question, the Court

first sought to determine whether the

ordinance was a content-based or content-

neutral regulation of speech hefore

analyzing its constitutionality. Renton,

475 U.S. at 47.

The Court reiterated its long-held

view that "regulations enacted for the

purpose of restraining speech on the

basis of its content presumptively

violate the First Amendment." Id. See

Carey v. Brown, 447 U.S. 455, 462-63, and

n. 7, 100 S.Ct. 2286, 65 L.Ed. 2d 263

(1980); Police Dept. of Chicago v.

Mosley, 408 U.S. 92, 95, 98-99, 925 S.Ct.

2286, 33 L.Ed.2d 212 (1972). "At first

glance, the Renton ordinance .. . does

not appear to fit neatly into either the

'content-based' or the '‘'content-neutral'

category." Renton, 475 U.S. at 47. The

Court concluded, however, that the total

ban of adult theaters within 1,000 feet

of residential neighborhoods "is aimed

not at the content of the films shown at

‘adult motion picture theaters,' but

rather at the secondary effects of such

theaters on the surrounding community."

Id. (emphasis original). Accordingly,

the statute there was classified

"“content-neutral." Hx ving made that

determination, the Renton Court then said

that the next appropriate inquiry is [1]

whether the ordinance is designed to

serve a substantial governmental interest

and [2] whether it allows reasonable

alternative avenues of communications.

Id. at 50 (citing Clark v. Community for

Creative Non-Violence, 468 U.S. 288, 293,

104 S.Ct. 3065, 82 L.Ed.2d 221 (1984);

Heffron v. International Society for

Krishna Consciousness, Inc., 452 U.S.

640, 649, 654, 69 L.Ed.2d 298, 101 S.Ct.

2559 (1981)). This two-part inquiry is

the appropriate next step of analysis,

whether the Court follows the Renton test

or Justice Brennan's "bright-line" test.

The two-part inquiry is not unlike

the four-part test set forth in U.S. Vv.

O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20

L.Ed.2d 672, (1968).° There, considering

whether burning a draft card in violation

of law was an unconstitutional

2The Texas Court of Criminal Appeals

believed that O'Brien was rejected by

this Court. Jo on v. State, 755 S.W.2d

at 94 n. 4. The court cited Spence, 418

U.S. at 414 n. 8, as support for its

assertion. We submit that the Texas

court has misread Spence and we believe

O'Brien remains valid authority where

conduct mixed with elements of speech 1s

at issue, as opposed to the "symbolic

speech" at issue in Spence.

infringement on symbolic free speech, the

Court held that when "speech" and

"nonspeech" elements are combined in the

same course of conduct, "a sufficiently

important governmental interest in

regulating the nonspeech element can

justify incidental limitations on First

Amendment freedoms." O'Brien, 391 U.S.

at 376 (emphasis added). A regulation of

such nonspeech conduct was said to be

sufficiently justified:

(1] if it is within the constitutional

power of Government; [2] if it furthers

an important or substantial

governmental interest; [3] if the

governmental interest is unrelated to

the suppression of free expression; and

(4] if the incidental restriction on

alleged First Amendment freedoms is no

greater than is essential to the

furtherance of that interest.

Id. at 377. The two-part Renton test for

content-neutral restrictions on First

Amendment freedoms adds the "reasonable

alternative avenues of communications"

element to the "substantial governmental

interest" prong. (The Amicus submits

that the first element of the O'Brien

test--that the regulation be within the

power of government to enact--is actually

an implied part of the Renton test, or

any other test of a statute or

regulation. The third element in O'Brien

is satisfied by the plain meaning of

section 42.09. The fourth element may

have been subsumed in the “alternative

avenues of communications" prong of

Renton. )

We submit that Texas Penal Code

Section 42.09 is a content-neutral

regulation of symbolic speech, or,

alternatively, a regulation of the

nonspeech element of conduct that may be

combined with speech. The standard set

forth in Renton, or the similar standard

of O'Brien, or a combination of the two,

should be the test applied to the facts

in this case. Clearly, Section 42.09

meets either the Renton or the O'Brien

test, as is discussed below. The Texas

Court of Criminal Appeals wrongly applied

a content-based restriction of speech

analysis, in reliance on the Perry test

used in Boos, and found that the statute

was overbroad, and thus unconstitutional

as applied to Johnson. To so find was

reversible error.

2 The Governmental Interest.

The state of Texas, like every

other state in the Union, has a

substantial interest in preventing

desecration of its state and national

flags, monuments and places of worship.

The state also has an interest in

preserving the peace. Those interests

are served by Texas Penal Code Section

42.09.

a. The National Emblen.

The interest served by protecting

the national emblem is so well-known to

this Court that, but for the importance

of this case, it would not warrant

review. Nonetheless, a few quotations

from past opinions of members of this

Court serve to summarize the interest

asserted by Texas:

One need not explain fully a

phenomenon to recognize its existence

and in this case to concede that the

flag is an important symbol of

nationhood and unity, created by the

Nation and endowed with certain

attributes. Conceived in this light, I

have no doubt about the validity of

laws designating and describing the

flag and regulating its use, display,

and disposition.

Smi Vv. uen, 415 U.S. 566, 587, 39

L.Ed.2d 605, 94 S.Ct. 1242 (1974) (White,

J., concurring).

Justice Rehnquist, agreeing with

Justice White's sentiments, added:

The significance of the flag, and

the deep emotional feelings it arouses

in a large part of our citizenry,

cannot be fully expressed in the two

dimensions of a lawyer's brief or of a

judicial opinion. But if the

Government may create private

proprietary interests in written work

and in musical and theatrical

performances by virtue of copyright

laws, I see no reason why it may not,

for all of the reasons mentioned,

create a similar governmental interest

in the flag by prohibiting even those

who have purchased the physical object

from impairing its physical integrity.

For what they have purchased is not

merely clcth dyed red, white, and blue,

but also the one visible manifestation

of two hundred years of nationhood--a

history compiled by generations of our

forebears and contributed to by streams

of immigrants from the four corners of

the globe, which has traveled a course

since the time of this country's

origin that could not have been

“foreseen .. . by the most gifted of

its begetters."

-, 415 U.S. at 602-03 (dissenting).

In the same case, Justice White in

his concurrence, said:

There is no doubt in my mind that

it is well within the powers of

Congress to adopt and prescribe a

national flag and to protect the

integrity of that flag. Congress may

provide for the general welfare,

control interstate commerce, provide

for the common defense and exercise any

powers necessary and proper for those

ends. These powers, and the inherent

attributes of sovereignty as_ well,

surely encompass the designation and

protection of a flag. It would be

foolishness to suggest that the men who

wrote the Constitution thought they

were violating it when they specified a

flag for the new Nation, Act of Jan.

13, 1794, 1 Stat 341, cl, just as they

had for the Union under the Articles of

Confederation. 8 Journals of the

Continental Congress 464 (June 14,

1777).

Id., 415 U.S. at 586. In this nation

created by the power and authority of the

sovereign states, we submit that the

states retain the power to protect the

emblem of the nation they created. See

Tenth Amendment, U.S. Constitution.

The flag is a national property, and

the Nation may regulate those who would

make, imitate, sell, possess, or use

it.

Id., 415 U.S. at 587.

There would seem to be little question

about the power of Congress to forbid

the mutilation of the Lincoln Memorial

or to prevent overlaying it with words

or other objects. The flag is itself a

monument, subject to similar

protection.

Id.

In Street v. New York, 394 U.S.

576 (1969), Chief Justice Warren stated

Simply: "I believe that the States and

the Federal Government do have the power

to protect the flag from acts of

desecration and disgrace." 394 U.S. at

605 (dissenting). In the same case,

Justice Fortas opined logically that:

The test that is applicable in

every case where conduct is restricted

or prohibited is whether the regulation

or prohibition is reasonable, due

account being taken of the paramountcy

of First Amendment values. rg, as 2

submit, it is permissible to prohibit

the burning of personal property on the

public sidewalk, there is no basis for

applying a different rule to flag

burning. And the fact that the law is

violated for purposes of protest does

not immunize the violator. United

States v. O'Brien, 391 U.S. 367 (1968);

see Giboney_v. Empire Storage & Ice

Co., 336 U.S. 490 (1949).

Beyond this, however, the flag is

a special kind of personalty. ...A

person may “own” a flag, but ownership

1s subject to special burdens and

responsibilities. A flag may be

property, in a sense; but it is

property burdened with peculiar

obligations and restrictions.

Id. 394 U.S. at 616-17 (dissenting).

The governmental interest in

protecting the flag is clear. Indeed, it

is the essence of nationhood. It is the

same interest that the government has in

protecting the Constitution, the

Declaration of Independence, the Capitol

Building or the Washington Monument. A

state government has an identical

interest in protecting the flag of the

Union to which it belongs, or its state

flag, state capitol or a state monument.

The American flag has been carried into

battle as the symbol of nationhood for

all Americans, including those who

dissent from national policy or politics.

The flag is not a device for symbolic

destruction, but a landmark for freedom.

It is not a rope for a tug-of-war between

opposing political groups. It is what

flies over the tug-of-war, standing guard

for free speech and assembly, protecting

the right of dissent, immune from tarnish

by the words of discourse. "Since the

flag symbolizes the entire nation, not

just one particular political philosophy,

the state may determine that it be kept

above the turmoil created by competing

ideologies." Deeds v. State, 474 S.W.2d

718 (Tex.Cr.App. 1972), questioned in

Johnson v. State, 755 S.W.2d at 94 n. 4.

While this Court's cases speak in

terms of “governmental interest" in the

regulation of speech, it is not so much a

“governmental” interest as it is an

interest of the people. Section 42.09

stands as an expression of the will of

the people of Texas, not their

government. Section 42.09 is a law

enacted by the elected representatives of

the people and it stands as an expression

of their values. They have said that the

flag of this nation is a _ venerated

object. And their law is in no way

directed at any citizen's right to speak

freely. It merely states that the flag

of this country is a symbol for all of

the people, and it shall not be

desecrated.

How ironic for an institution of

government created by the people to deny

them the right to hold sacred the symbol

of their nationhood. This statute leaves

speech free and robust, the clash of

ideas flourishing. What it proscribes is

the desecration of our nation's symbolic

soul by acts of vandalism, regardless of

the motives of the vandal.

b. Preserving the Peace.

A breach of the peace is not

required in every instance in order for a

state to legislatively restrict conduct

that is likely to result in a breach. See

Cantwell v. Connecticut, 310 U.S. 296, 60

S.Ct. 900, 84 L.Ed. 1213 (1940); Feiner

vy. New York, 340 U.S. 315, 71 $.Ct. 303,

95 L.Ed. 295 (1951). Although not

specifically mentioned in the statute,

the state of Texas has clearly asserted

an interest in preventing breaches of the

peace in its effort to have the statute

upheld. Johnson v. State, 706 S$.W.2d at

123. It is generally recognized that

flag desecration statutes serve the

purpose of preventing breaches of the

peace and such a purpose is valid and

important. Monroe v. State Court of

Fulton County, 571 F. Supp. 1023, 1027

(N.D. Ga. 1983), rev. on other grounds

739 F.2d 568 (llth Cir. 1984). "That the

state has a legitimate interest in

preventing beaches of the peace which can

result from reactions to any attempted

defilement of the flag has long been

recognized." State v. Waterman, 190

N.W.2d 809, 811 (Iowa 1971). And the

state's interest "in preserving the

peace, is totally unconnected to the

suppression of free expression."

Sutherland v. DeWulf, 223 F. Supp. 740,

745 (S.D. Ill. 1971).

Should this Covrt find, as the

Texas court did, that the state has no

substantial interest in protecting the

flag as a national symbol, surely this

Court will conclude, as it has in the

past, that the state has an interest in

restricting and preventing breaches of

the peace. Street v. New York, 394 U.S.

at 590-92.

Addressing this issue, the Texas

court concluded that there was no breach

of the peace associated with Johnson's

conduct and, therefore, there was no

state interest being served by Section

42.09. But the inquiry should have been

whether Johnson's desecration of the flag

created a risk of breach of the peace.

The term "risk" does not mean that

breach must have occurred or even been

imminent. a v. Farrell, 223 N.W.2ad

270, 272 (Iowa 1974), app. dismissed, 421

U.S. 1007, 95 S.Ct. 2410, 44 L.Ed.2d 675

(1975).

On the contrary, it denotes

nothing more than words or _ conduct

creating exposure to a chance, danger,

hazard or peril of breach of peace. See

"Risk" Webster's Third International

Dictionary, Unabridged at 1961; 77

C.J.S. Risk at 441.

Id., 223 N.W.2d at 272.

Indeed, the desecration and

molestation of the flag by burning in a

public place "is an act having high

likelihood to cause breach of the peace."

Suthe dad, 323 F. Supp. at 745.

Taking into account the deeply

held and emotional zeal with which so

many of our countrymen understandably

revere the flag itself, its public

desecration by disrespectful burning is

an act of incitement as fraught with

danger to the public peace as if a

person would stand on a street corner

shouting derogatory remarks at passing

pedestrians. See Chaplinisky v. New

Hampshire, 315 U.S. 568, 62 S.Ct. 766

(1942).

Id. As this Court held long ago,

it has often occurred that insults to

the flag have been the cause of war,

and indignities put upon it, in the

presence of those who revere it, have

often been resented and sometimes

punished on the spot.

Halter v. Nebraska, 205 U.S. 34, 41, 27

S.Ct. 419, 421, 51 L.Ed. 696 (1907).

Actual disturbance should not be

the test for a breach of the peace

standard, particularly when the act

sought to be regulated is conduct and not

pure speech. If any act is likely to

provoke a breach of the peace, such acts

should properly be prohibited for three

reasons:

By prohibiting acts which may

produce violence or a breach of the

peace, the government deters both of

these acts and, proportionally, a

smaller number of outbursts that the

acts may produce.

Secondly, it is appropriate for

the government to set certain standards

of conduct in order to guide members of

the community as to those acts that

ought to be punished.

Finally, an act of flag

desecration with no resulting violence,

is similar to driving while intoxicated

with no ensuing accident. Drunk

driving is to be discouraged because of

the possibility of danger increases

when drivers are drunk, much in the

same way certain anti-social acts may

result in violence.

Rosenblatt; Flag Desecration Statutes:

History and Analysis, 1972 Wash. U. L. Q.

173, 216 (1972).

We submit that the act of flag

burning in a public setting could and

should be classified by this Court as a

breach of peace, per se. While we could

find no direct authority in support,

there are cases where words by themselves

were held to be a breach of the peace,

Chaplinisky, supra, and other cases in

which flag desecration was held to be so

likely to result in a breach as to

satisfy the state's interest in

preventing a breach by regulation. See,

e.g., Sutherland v. DeWuff, 323 F.Supp.

at 745; State v. Royal, 113 N.H. 224, 305

A.2d 676, 680 (1973); State v. Mitchell,

32 Ohio App.2d 16, 288 N.E.2d 216, 226

(1972); State v. Waterman, 190 N.W.2d

809, 811-12 (Iowa 1971). Such a

classification is a logical and

reasonable conclusion drawn from the

inherent danger connected with an open

fire in a volatile public setting. Such

a classification would settle for all

time lingering questions that might

otherwise be left unanswered by this

Court's decision in this case as to

whether other state or national laws on

this subject satisfy the “state interest"

test.

Avenue of Expression.

If this Court accepts the notion

that there is a substantial and important

“governmental” interest in preserving the

integrity of the flag or in preveriting

breach of the peace, then this Court

should next consider whether Section

42.09 leaves open reasonable alternative

avenues of communication. Renton, 475

U.S. at 50. The answer to that query is

an overwhelming "Yes." Merely consider

the trial court record:

The flag was burned in connection

with a protest in Dallas during the 1984

Republican National Convention. The

protestors initially stopped at the LTV

Tower and traveled to the bottom floor,

an area where shops are located. (R. II-

71).3 At this point, the protestors

conducted a “die-in," an event wherein

the protestors would count down from 10

3References to the record below are

as follows: The notation "R.II" through

"R.VI" refers to the five volumes of the

statement of facts or court reporter's

transcriptions from the trial court.

and then fall to the floor moaning and

yelling for approximately three to four

minutes (R. II-72). Apparently, this

demonstration was designed to represent

the force and effect of a nuclear

explosion. After the "die-in", the

marchers walked through Thanksgiving

Square and entered the Republic Bank

building. (R.II-73) There, the

protestors seized and tore up deposit

slips, pulled up plants and dumped soil

on the ground. (R.II-75)

The march then moved toward the

Diamond Shamrock building. The

management of this building, evidently

knowing in advance of the march, caused

the door of this building to be locked.

Upon learning this, the protestors beat

on the windows, and spray-painted the

walls and the windows of the building.

(R.II-76). The group then traveled to the

Plaza of the Americas complex. Here the

marchers overturned potted plants and

spray-painted the floor. (R.II-79). The

group then went by sky-walk to the

Southland Life building. Various

protestors sprayed the floor and walls of

the sky-walk. (R.II-81). After another

"“die-in" at the park, the marchers moved

towards the Mercantile National Bank

building. (R.II-82). There were three

flag poles in front of this building, and

one of them bore an American flag.

Protestors bent all three poles; one

protestor took down the American flag and

gave it to Johnson. (R.II-83-84). The

protestors next moved to the Dallas Power

& Light Company building, where the doors

were locked. As they had done before,

the protestors spray-painted the windows

and beat against them with their fists.

(R.II-85). A short time later, the

marchers conducted another “die-in" in

front of the Southwestern Bell building.

During this “die-in,"” Officer Stover saw

Johnson “shooting the finger” with both

hands, saying, “Fuck you, America."

(R.II-86-87). Indeed, as the march

progressed, Officer Stover heard Johnson

shout slogans such as: "Fuck you,” “Fuck

you, America," and "Fuck the

Republicans." (R.II-78).

After a stop at the Federal

Reserve building, where the protestors

again spray-painted and beat against the

windows, the group ended up in front of

the Dallas City Hall. (R.II-87-88):

There, Officer Stover saw the United

States flag being burned while

protestors chanted, “America, the red,

white and blue, we spit on you.” (R.II-

91).

Not a single aspect of Johnson's

protest that arguably could be cl-ssified

as speech would be restricted, infringed

or punished by Section 42.09, if the

constitutionality of that Section is

upheld. In fact, the Texas- intermediate

appellant court found that the statute

“in no way prohibited legitimate protest

activities." Johnson v. State, 706

S.W.2d at 122. If the constitutionality

of the statute is upheld, the freedom of

speech as exercised by Johnson and his

group could continue, such as it was,

unimpeded bv the anti-desecration

statute. The protestors could continue

to carry their signs and speak their

contemptible words. They could express

their contempt for everything American,

yet 42.09 would not interfere. Whatever

point Johnson and his group were trying

to make, they could still try to make it.

It is difficult to imagine a more

vigorous protest, or a more unrestricted

forum for the expression of dissent.

Johnson would only transgress Section

42.09 if he were to burn the state or

American flag, or desecrate some other

venerated object.

To summarize Part A, this Court

has Jong held that even protected speech

may be subject to reasonable limitations

when important countervailing interests

are involved.

Citizens are not completely free to

commit perjury, to libel other

citizens, to infringe copyrights, to

incite riots, or to interfere unduly

with passage through a public

thoroughfare. The right of free

speech, though precious, remains

subject to reasonable accommodation to

other valued interests.

Spence, 418 U.S. at 417 (Rehnquist, J.,

dissenting). The people of Texas have

said the flag is just such a valued

interest.

B. EVEN IF SECTION 42.09 IS HELD TO

BE A CONTENT-BASED RESTRICTION OF

SPEECH, THE TEXAS STATUTE SURVIVES

THE BOOS/PERRY TEST.

The Texas Court of Criminal

Appeals, by finding that Section 42.09

was not narrowly drawn, Johnson v. Texas,

755 S.W.2d at 96, relying on Boos,

apparently concluded that Section 42.09

was content-based restriction on speech.

However, there was no discussion by the

court as to how this determination was

reached. The court drew from Boos the

test set forth in Perry, supra, for

scrutiny of content-based restrictions on

speech, to determine if the statute could

stand. The court, misapplying the

Boos/Perry test, ruled the statute was

overly broad. We submit that the statute

is sufficiently narrow to survive the

Perry test.

In Boos, Part I B, which had the

support of a majority of Justices, the

Court ruled that a content-based

restriction on speech in a public forum

must be subjected to exacting scrutiny to

stand, in accordance with the Perry test.

The state mast show [1] a compelling

state interest served by the statute and

[2] the statute must be narrowly drawn to

achieve that end. Boos, 99 L.Ed.2d at

342, 345. Perry, 460 U.S. at 45.

The display clause in Boos was a

restriction on classic political speech,

Boos, 99 L.Ed.2d at 343; that is,

political slogans displayed peacefully on

signs and placards in a public place.

Desecration by burning an American flag

is not “classic”, “speech” or "peaceful",

but in any event, the Texas Court of

Criminal Appeals found desecration and

picketing similar enough to apply the

boos/Perry test to the Johnson facts.

Johnson, 755 S.W.2d at 96.

the Texas court found no

compelling state interest in preserving

and protecting the nation’s most visible

symbol of its existence. The court

summarized:

If the State has a legitimate

interest in promoting a State approved

symbol of unity, that interest is not

so compelling as to essentially license

the flag's use for only the promotion

of governmental status quo.

Johnson, 755 S.W.2d at 97. This

reasoning is flawed. The flag can be and

is “used” by those who advocate change in

the governmental status quo -- it is

waived or carried at gatherings

representing all points on the

philosophical compass.

The court further concluded that

because West Virginia State Board of

Education v. Barnett, 319 U.S. 624, 63

S.Ct. 1178, 87 L.Ed. 1628 (1943), O'Brien

and Boos, require that there be a

legitimate threat that the government

stands to lose its interest in the flag

as a symbol in order to uphold violations

of federal free speech guarantees, the

court ruled that it “must hold that the

interest of providing a symbol of unity

is inadequate to support Secticn

42.09(a)(3)." Johnson, 755 S.W.2d at 97.

But the Texas court misreads Barnett,

O'Brien, and Boos, and as discussed in

part A 1 above, we submit that the Texas

court virtually ignores the people's

interest in their nation's flag.

The Texas court also found that

since there was no breach of the peace,

as viewed by that court, connected with

Johnson's conduct, then the state's

interest in preventing breaches of the

peace was not served by Section 42.09 in

this case. Id., 755 S.W.2d at 96.

Assuming this Court agrees that Texas has

a compelling interest in its venerated

objects or in preserving the peace, and

assuming, arguendo, that the Court finds

Section 42.09 to be a on t- d

restriction on speech, the question

remains whether the statute is

unconstitutionally overbroad. Boos, 99

L.Ed.2d at 345. The crucial inquiry,

then, is “whether the ordinance sweeps

within its prohibitions what may not be

punished under the First and Fourteenth

Amendments." Grayned v. City of

Rockford, 408 U.S. 104, 115, 92 S.Ct.

2294, 33 L.Ed.2d 222 (1972). The answer

is that Section 42.09 does not prohibit

what may not be punished for this reason:

Flag desecration is not protected speech.

Alternatively, flag desecration is

conduct connected with elements of speech

and may properly be regulated, pursuant

to O'Brien. At best, it is symbolic

speech and may be properly regulated

because the statute is narrowly tailored

to serve the state's interest:

protecting the national emblem and

preserving the peace.

Nonetheless, the Texas court's

decision turned on the court's belief

that a less restrictive alternative

existed to Section 42.09. Johnson, 755

£6

S.W.2d at 96 (relying on Boos, 99 L.Ed.2d

at 350). "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."

Johnson, 755 S.W.2d. at 96. The court

cited no authority for that proposition.

In its next sentence, though, it did

mention Boos, noting that this Court

compared the District ordinance in

question there with 18 U.S.C. Section

112(b) (2), which served the same interest

as the challenged District ordinance.

The Texas court then quoted from Boos,

thus:

(Wje conclude that the availability of

alternatives such as section 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 re~

strictive alternative is readily avail-

able. Thus, even assuming for present

purposes that the dignity interest is

"compelling," we hold that the display

clause of section 22-1115 is

inconsistent with the First Amendment.

Johnson, 755 S.W.2d at 96 (quoting Boos,

99 L.Ed.2d at 350).

The Texas court then compared

Texas Penal Code Section 42.01, the state

"fighting words" statute, with Section

42.09. The court held that Section 42.01

was a less restrictive alternative to

42.09 because it explicitly prohibits

utterance likely to incite an immediate

breach of the peace, where 42.09 is

directed at desecrations that the actor

"knows will seriously offend one or more

persons likely to observe or discover"

the act. That language, the court

stated, is so broad that it "may be used

to punish protected conduct which has no

propensity to result in breaches of the

peace." Johnson, 755 S.W.2d at 95. This

statement is perplexing since the Texas

court specifically ruled that the statute

was unconstitutional as applied to

Johnson, id. at 97, even though there was

clear evidence of “serious offense" to

others (R.II-92; R.III-222). “And yet the

court seems to have made its ruling based

on what might happen at some other time

in the future, which would be

inappropriate.

This Court has long held that as a

general rule, “when a criminal charge is

based on conduct constitutionally subject

to proscription and clearly forbidden by

a statute, it is no defense that the law

would be unconstitutionally vague if

applied to other behavior." Coates _v.

City of Cincinnati, 402 U.S. 611, 618, 91

S.Ct. 1686, 29, L.Ed.2dad 214 (1971)

(White, J., dissenting). An exception to

the general rule is created, however,

where the statute at issue “purports to

regulate or proscribe rights of speech or

press protected by the First Amendment.”

Id. at 619; see U.S. Vv. Robel, 389 U.S.

258, 88 S.Ct. 419, 19 L.Ed.2d 508 (1967);

Keyishian v. Board of Regents, 385 U.S.

589, 87 S.Ct. 675, 17 L.Ed.2d 629,

(1967); Kunz v. New York, 340 U.S. 290,

71 $.Ct. 312, 95 L.Ed. 280 (1951).

Although a statute may be neither

vague, overbroad, nor otherwise invalid

as applied to the conduct charged

against a particular defendant, he is

permitted to raise its vagueness OF

unconstitutional overbreadth as applied

to others. And if the law is found

deficient in one of these respects, it

may not be applied to him either, until

and unless a satisfactcry limiting

construction is placed on the statute.

Coates, 402 U.S. at 619-20. But the

Texas statute does not “purport to regu~

late or proscribe rights of speech or

press." This is the crucial distinction

missed by the Texas court. Section 42.09

does not regulate speech. The court

should have applied the general rule,

that is, whether the statute was

unconstitutionally applied to Johnson,

and the court should not have concerned

itself with whether the statute "may be

used to punish protected conduct . .- *

Johnson, 755 S.W.2d at 95 (emphasis

added). The issue before the Texas

court, under this analysis, was whether

the statute was unconstitutional in its

application toward Johnson, and clearly

it was not.

If the Texas Court of Criminal

Appeals has correctly concluded that

Section 42.09 is a content-based

restriction on the speech, then that

court wrongly concluded that this Court's

holding in Boos requires reversal of

Johnson's conviction. The two-part

Boos/Perry test has been met under the

facts in this case. The state of Texas

has a substantial interest in preserving

the flag and preventing breach of the

peace, and the statute is narrowly drawn

to meet that need.

The Texas court misread Boos to

require a test of comparing statutes to

prove overbreadth. 4 We submit that the

4rf¢ such comparisons are the proper

standard for overbreadth analysis, it

would be more appropriate to compare

section 42.09 to other flag oe

tatutes. Section 42.09 is 4

improvenent over its predecessor, Article

152, Vernon's Ann. P.C., which provided:

“Any person who shall within this State,

publicly or privately, mutilate, Gonaes,

defile, defy, tramp upon, Pg gm

tempt upon, either by word

au, et the United States..."

emphasis added). See Delorme v. State,

ies’ 3.4.26 808, 810 (Tex.Cr.App-. 1973).

The underlined langu age, of gy ee

held to be unconstitutional by =

in ;

18 U.S.C.

federal desecration statute,

section 700, provides a pertinent part,

“whoever knowingly casts contempt upon

any flag of the United States by meme

mutilating, defacing, defiling, burning,

; "

ling upon it shall be... See

on! Pa ; 1a 415 U.S. at 583, n.30

(discussion of section 700's legislative

history) and n.31 (discussion of Uniform

footnote continued)

comparison in Boos of the District and

federal statutes at issue is limited to

the facts of Boos, where (1) both

statutes originally were enacted by

Congress, (2) Congress went on to reform

(continued footnote)

Flag Law of 1317, adopted in some form by

many states). In Virginia, where the

uniform flag act was amended in 1975,

section 18.2-488 provides, "No person

shall publicly burn with contempt,

mutilate, deface, defile, trample upon .

- + amy such flag..." In Georgia, the

relevant statute provides, "“f{a] person

who deliberately mutilates, defaces, or

defiles the flag of the United

States...is guilty of a misdemeanor."

Georgia Code Ann. Section 26-2801. The

common thread of these laws, including

Texas’, is the subjective element of

“contempt,” “offense,” “knowingly,” and

are, we submit, distinctions without a

substantive difference. Virtually any

law, said Justice Rehnquist, “when viewed

with sufficient ingenuity, could be

thought to interfere with some citizen's

preferred means of expression." Spence,

418 U.S. at 417 (dissenting). And yet a

“statute is not required to be drawn with

the precision of chemical formula or a

mathematical equation. Only a reasonable

degree of certainty is required in order

that fair notice be given to those of

Ordinary intelligence." State v.

Waterman, 190 N.W.2a 809, 813 (Iowa

1971); Hoffman v. U.S., 256 A.zd 567,569

(D.C.App. 1969).

the federal statute while the District

delayed, (3) the District's statute was

about to be repealed, and (4) the federal

statute was about to be extended to the

District. Boos, 485 U.S. at 349.

Furthermore, the statute in question in

Boos restricted "classic political

speech." The same cannot be said of

either the Texas statute or of Johnson's

conduct at the Dallas City Hall.

Additionally, this Court, “relying on

congressional judgment in this delicate

area," Boos, 99 L.Ed.2d at 349-50,

concluded that the availability of

alternatives such as the federal statute

demonstrated that the display clause was

not crafted with sufficient precision to

withstand First Amendment scrutiny. we

submit the District's ordinance was held

not to be narrowly tailored not only

because a less restrictive alternative

was readily available, but also because

ef evidence of congressional judgment in

an alternative statute that was in the

process of being made applicable to the

District.

Clearly, that is not the situation

with respect to th. Texas statutes at

issue. The Texas “fighting words"

statute, Section 42.01, covers a broad

range of disorderly conduct that tends to

incite a breach of the peace. Section

42.09, on the other hand, deals only with

overt physical acts of desecration of

certain objects. Desecration is

specifically defined and limited under

Section 42.09 to certain enumerated

actions. Thus, Section 42.09 is narrowly

tailored to fit a certain specific need;

in this case, the prevention of flag

desecration by public burning. Section

42.01, on the contrary, does not address

the same basic interest as Section 42.09

and, thus, cannot be considered a “less

restrictive alternative."

2. No Protection for Violent

Acts.

An additional argument against the

overbreadth holding below is supported by

this Court's continuing belief that

“where demonstrations turn violent, they

lose their protected quality as

expression under the First Amendment."

Boos, 99 L.Ed.2d at 351; Grayned, 408

U.S. at 116. While mistreatment of the

flag in protest or ina demonstration may

be protected “symbolic speech," according

to Street, Spence and Smith, such

mistreatment should lose its protection

once the flag is set afire, a per Ss&

breach of the peace. (See discussion at

pp. 34-35, above). Once the protection

of the First Amendment is lost, the

scrutiny for overbreadth of the statute

is lessened, and it becomes clearer that

statute is appropriately tailored to

serve the state's interest.

3. Statutory Construction.

The Texas Court of Criminal

Appeals, relying on Boos, ruled that

Section 42.09 is so broad that it may be

used to punish protected conduct.

Johnson, 755 S.W.2d at 96. But, it is

the duty of the court, “if it can be

done, to construe a statute so that it

will remain valid.” Delorme _v. State,

488 S.W.2d 808, 811 (Tex.Cr.App. 1973);

see, @.g. Boos, 99 L.Ed.2d at 350-51; New

York v. Ferber, 458 U.S. 747, 769, mn. 24,

102 S.Ct. 3348, 73 L.Ed.2d 1113, (1982);

U.S. v. Thirty-Seven Photographs, 402

U.S. 363, 368-70, 91 S.Ct. 1400, 28

L.Ed.2d 822 (1971). The test for

determining whether a statute is

unconstitutional on its face because it

is so vague and indefinite that it gives

no warning of what acts or conduct

transgresses the statute and therefore

are violative of due process is whether a

person of ordinary intelligence, who

would be law-abiding, can determine with

reasonable precision what conduct it is

his duty to avoid. Winters v. New York,

333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840

(1948): U.S. v. Petrillo, 332 U.S. 1, 67

S$.ct. 1538, 91 L.E@. 1877 (1946)? Cramp

v. Board of Public Instruction, 368 U.S.

278, 82 S.Ct. 275, 7 L.Ed.2@ 285 (1961):

Lanzetta v. New Jersey, 306 U.S. 451, 59

S.Ct. 618, 83 L.Ed. 888 (1939). The

Texas Court of Appeals, the intermediate

court, applied such an analysis to

Section 42.09. It found that:

Due process does not demand that the

words used in a statute be specially

defined. Words defined in dictionaries

and with meanings so well known as to

be understood by a2 person of ordinary

intelligence are not to be considered

vague and indefinite. Here, the

relevant terms of the offense,

"deface," “damage,” and “physically

mistreat" are all well understood

terms. The act of burning the United

States flag would clearly constitute

desecration under the statute.

Johnson, 706 S.W¥.2d at 122.5

Continuing, the intermediate Texas

court found that the statute was not

overbroad because, "[a} statute is

overbroad when it prohibits both activity

which is protected by the constitution

and activity which is not. .. . While

the flag burning did occur during a

SJohnson contended below that the

statute is unconstitutionally vague

because “desecration” depends upon the

sensibilities of persons likely to

observe the action under part (b) of

section 42.09. Johnson, 706 S.W.2d at

122. Should this Court find fault with

the “seriously offend" language, we

submit that no Stromberg problem arises

since Johnson was clearly convicted under

(a) (3) of the statute, and (a)(3) can

stand alone with its plain meaning intact

without part (b). Part (b) might be

relevant if Johnson had taken some

Marginal action toward the flag, but a

public burning in the context of the

instant facts is “desecration” as that

word is plainly understood. See

Stromberg v. California, 283 U.S. 359,

S51 S.Ct. 532, 75 L.Ed 1117 (1931).

political protest rally, the statute in

no way prohibited legitimate protest

activities." Id.

The Texas Court of Criminal

Appeals did not view tie statute in the

same way. We submit that the

intermediate court adopted a reasonable,

logical and compelling reading of the

statute as applied to the facts before

st. Should construction of 42.09 become

an issue before this Court, we submit the

Court can adopt the intermediate Texas

court's interpretation. "“'Fj)ederal

courts are without power to adopt a

narrowing construction of a state statute

unless such a construction is reasonable

and readily apparent.” Boos, 99 L.Ed.2d

at «6350-51 (emphasis added). Johnson's

juct was well within the meaning of

the words “desecration,” “deface,”

"damage," and “physically mistreat." We

irge this Court to so construe Section

42.09, if mecessary, and uphold its

constitutionality.

CONCLUSION

The relief requested by

petitioner, the state of Texas, should be

granted. Several errors were committed

by the Texas Court of Criminal Appeals,

requiring reversal of its decision.

The court below mistakenly viewed

Johnson's conduct as "symbolic speech"

protected by the First Amendment. It

then applied the test set forth in Boos

to the statute at issue and found it to

be overly broad and, thus,

unconstitutional. We submit that Boos is

inapplicable to this statute or these

facts. The statute at issue does not

regulate speech, but conduct, or in the

alternative, it is a content-neutral

regulation of "symbolic speech" and

serves a substantial government interest

While leaving open “reasonable

alternative avenues of communication."

LEGAL AFFAIRS COUNCIL

By Counsel

Counsel:

Durrette, Jr. /

sel of Record ¢

Bradley B. Cavedo

MCCARTHY & DURRETTE, P.C.

700 East Main Street, Suite 1201

Richmond, Virginia 23219

(804) 780-0505

Counsel for Amicus Curiae

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.