Johnson, Terence, PD-0228-14

Flag-destruction statute Tex. Penal Code § 42.11 (a)-(c) prohibits damaging, defacing, mutilating, or burning a flag.
Appellee Johnson jumped for a flag at a hardware store; flag and staff came off post, he threw it into the street; others caused disturbances nearby.
Appellee gave a post-incident interview claiming anger over racial remarks by a merchant; video and interview were key evidentiary materials.
Trial court dismissed the information, concluding the statute is unconstitutional as applied and that the act could be charged as criminal mischief instead.
Court of Appeals affirmed facial overbreadth invalidating § 42.11 on First Amendment grounds but rejected as-applied challenge; State sought discretionary review.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 42.11 is facially overbroad under the First Amendment	Johnson—overbreadth sustains facial invalidation	Johnson (State) argues overbreadth not proven by text or fact	Yes; statute facially invalid overbreadth.
Whether overbreadth doctrine applies in state court standing context	Johnson argues overbreadth doctrine governs substantively	State relies on divergent standing rules	Overbreadth doctrine applies as substantive First Amendment law.
Whether narrowing construction could save § 42.11	Johnson contends no permissible narrowing supports constitutionality	State urges possible narrow reading to exclude non-protected conduct	No readily available narrowing; statute read unambiguously broad.
Sweep of the statute and its applications to protected expression	Johnson asserts many applications suppress protected speech	State argues protected speech portion is minimal	Statute unconstitutionally broad given substantial protected-expression reach.
Whether prior enforcement patterns affect overbreadth analysis	Johnson asserts persistent constitutional concerns despite non-enforcement	State argues deterrence of unconstitutional uses diminishes risk	Deterrence evidence does not cure overbreadth.

Texas v. Johnson, 491 U.S. 397 (1989) (flag burning protected speech; content-based restrictions invalid)
United States v. Eichman, 496 U.S. 310 (1990) (federal flag-protection statute invalid as expressive-conduct restriction)
New York State Club Ass’n v. City of New York, 487 U.S. 1 (1988) (standing and overbreadth principles; federal precedent applicable)
Virginia v. Hicks, 539 U.S. 113 (2003) (state standing and overbreadth doctrine in state courts)
State v. Janssen, 219 Wis. 2d 362; 580 N.W.2d 262 (Wis. 1998) (state flag-desecration statute overbroad; application to speech)