State v. Johnson, Terence, 475 S.W.3d 860

Twenty-six years after Texas’s flag-desecration statute was held unconstitutional, Texas revised it to punish damaging, defacing, mutilating, or burning a flag; the challenged statute applies to US and Texas flags.
Appellee was filmed grabbing a flag, throwing it into the street, and making expressive or non-expressive statements; he later said he was angry at a merchant.
Trial court dismissed the information charging appellee under § 42.11, citing precedent that flag-protective laws are unconstitutional and that the act could be protected speech.
Court of Appeals held § 42.11 facially invalid as overbroad but addressed as-applied challenges and relied on Eichman and Johnson.
State appealed, arguing the statute is facially and as-applied constitutional and that overbreadth challenges require concrete standing.
The Texas Court of Criminal Appeals ultimately held the statute facially invalid under the First Amendment overbreadth doctrine, affirming lower judgments.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Is the flag-destruction statute facially overbroad?	Statute chills protected expression.	Statute has legitimate non-speech applications.	Yes, statute facially invalid for overbreadth.
Does First Amendment overbreadth doctrine apply in Texas state court with relaxed standing rules?	Overbreadth applies; standing relaxed.	State may limit standing for overbreadth claims.	Overbreadth doctrine applies; standing relaxed for merits analysis.
Should the statute be narrowly construed to avoid First Amendment problems?	Narrowing could avoid unconstitutional scope.	Statute not readily subject to narrowing; text too broad.	No narrowing permitted; text unambiguously broad.
Do the statute’s applications to expressive conduct outweigh its legitimate sweep?	Unconstitutional applications are substantial.	Unconstitutional applications are few; chilling effects overstated.	Unconstitutional applications substantial; statute invalid.

Texas v. Johnson, 491 U.S. 397 (U.S. 1989) (flag desecration held protected speech; First Amendment limits on prohibitions)
United States v. Eichman, 496 U.S. 310 (U.S. 1990) (federal flag-protection statute invalid as applied to expressive conduct)
New York State Club Ass’n v. City of New York, 487 U.S. 1 (U.S. 1988) (standing and overbreadth considerations in First Amendment context)
Virginia v. Hicks, 539 U.S. 113 (U.S. 2003) (overbreadth standing questions addressed as merit questions; substantive doctrine)
Secretary of Maryland v. Joseph H. Munson Co., 467 U.S. 947 (U.S. 1984) (overbreadth as merit question; standing distinction clarified)