State v. Johnson, Terence

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0228-14

THE STATE OF TEXAS

v.

TERENCE JOHNSON, Appellee

ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE TWELFTH COURT OF APPEALS
HOUSTON COUNTY

Y EARY, J., filed a dissenting opinion.

DISSENTING OPINION

Today, the Court declares Texas’ destruction of a flag statute facially unconstitutional.

Six members of this Court undo the considered work of our State’s House of

Representatives, our Senate, and our Governor.1 Having determined that the law is drawn in

1
The former version of Penal Code Section 42.11, entitled “Desecration of a Venerated
Object,” was repealed after the United States Supreme Court found it had been applied
unconstitutionally against a protester in Texas v. Johnson. 491 U.S. 397 (1989). In an attempt to cure
potential constitutional problems with that law, the Legislature enacted the statute at issue in this
case.
 Johnson — 2

violation of the First Amendment, the Court’s opinion means that this penal law may no

longer be enforced against anyone, no matter what the circumstances—ever. This is a

powerful rebuke to the people’s representatives! I do not join it.

To be clear, I do not today contest the opinions of the United States Supreme Court,

which have determined that laws similar to the one at issue here are capable of being applied

in a manner that is inconsistent with the guarantees of the First Amendment. See, e.g., Texas

v. Johnson, 491 U.S. 397 (1989) (finding that the former version of Texas’ destruction of a

flag statute was applied unconstitutionally); United States v. Eichman, 496 U.S. 310 (1990)

(finding that the Flag Protection Act of 1989 had been applied unconstitutionally). But this

Court’s opinion does not limit itself to a conclusion that the statute has been applied

unconstitutionally against Appellee. It can’t! The statute most certainly was applied

constitutionally under the circumstances presented here.2

Instead of assessing whether the statute was applied unconstitutionally in this case,

the Court avoids that question and finds that the statute facially conflicts with the First

Amendment due to its substantial overbreadth. In reaching that conclusion, the Court goes

where no United States Supreme Court opinion has gone before it. Twice before, in Texas

2
The majority suggests that whether the statute was applied constitutionally in this case is
not self-evident. Majority Opinion at 4 n.5. But the court of appeals resolved this question. State v.
Johnson, 425 S.W.3d 542, 549 (Tex. App.—Tyler 2014) (explaining, “we conclude that Appellee’s
conduct was not ‘sufficiently imbued with elements of communication’ to implicate the First and
Fourteenth Amendments,” and “[t]he record before us shows that Appellee engaged in an act of
criminal mischief with no intent to convey any particularized message.”). As the majority correctly
notes, Appellee did not challenge that determination. Consequently, this Court should regard the
court of appeals resolution of that issue as conclusive.
 Johnson — 3

v. Johnson and again in United States v. Eichman, the United States Supreme Court has

found statutes regulating the destruction or desecration of flags to have been

unconstitutionally applied. Johnson, 491 U.S. at 404 n.3 (explaining that the Court

intentionally chose to resolve this case only “on the basis of his claim that the statute as

applied to him violates the First Amendment”); Eichman, 496 U.S. at 312 (concluding that

the federal Flag Protection Act “cannot constitutionally be applied to appellees”). But the

Supreme Court has never, to my knowledge, found such a statute to be facially

unconstitutional. Instead, it has declined to make that kind of an expansive ruling, even

explaining at one point, “[w]e have not automatically concluded . . . that any action taken

with respect to our flag is expressive.” Johnson, 491 U.S. at 405.

I am persuaded that, in reaching the conclusion that the Texas destruction of a flag

statute is facially unconstitutional, the Court has made two important mistakes. First, I am

persuaded that the Court has made a mistake in concluding that it (the Texas Court of

Criminal Appeals) has both the power and the constitutional obligation, mandated by no less

than the First Amendment itself, to decide that the destruction of a flag statute is facially

unconstitutional in this case, even though the defendant cannot show the statute was

unconstitutionally applied to him and to his own conduct. Second, I am persuaded that the

Court has mistakenly concluded that the statute at issue here is substantially overbroad in

relation to its otherwise plainly legitimate sweep, when it is not. For these two reasons, as

more fully explained in this opinion, I respectfully dissent.
 Johnson — 4

AUTHORITY TO DECIDE THE CASE

The majority concludes in this case that Texas courts are bound—by no less than the

First Amendment itself—to review Appellee’s claim that the statute is unconstitutional

because it violates the First Amendment, regardless of whether he can show that his own

First Amendment rights have been violated. I disagree. I believe Appellee’s complaint that

the statute under which he was charged violates the First Amendment should have been

rejected because he cannot show that his own First Amendment rights have been violated.

For reasons grounded in the Texas Constitution and in Texas law, I believe we should find

that we and the other courts in our state are not authorized to address challenges to the

constitutionality of statutes—even in cases alleging First Amendment overbreadth—brought

by claimants who cannot show that the statute operated unconstitutionally in their own cases.

I must address my thoughts on this matter in two parts. First, I will explain why I

believe Texas does indeed have the discretion to apply a stricter standard than the standard

employed by the federal courts when assessing which litigants have standing to bring an

overbreadth claim in our state courts. Second, I will explain why I believe our authority to

address overbreadth claims is more limited than the authority of the federal courts.

A. State Discretion to Restrict Standing for Overbreadth Claims

The United States Supreme Court observed, in Virginia v. Hicks, that “[w]hether

Virgina’s courts should have entertained [an] overbreadth challenge is entirely a matter of

state law.” 539 U.S. 113, 120 (2003) (emphasis in original). At the same time, the Court also
 Johnson — 5
observed a distinction between: (1) questions about whether the state courts “should have

entertained” the challenge brought by Hicks, and (2) questions about “whether the claimed

overbreadth [of the] policy [at issue] [was] sufficiently ‘substantial’ to produce facial

invalidity.” Id. Speaking of the latter (whether the claimed overbreadth was sufficiently

substantial), the Court explained, “These questions involve not standing, but ‘the

determination of [a] First Amendment challenge on the merits.’” Id. (quoting from Secretary

of State of Md. v. Joseph H. Munson Co., 467 U.S. 947, 958-959 (1984)) (emphasis added).

Thus, the Supreme Court acknowledged a distinction between the issue of standing in an

overbreadth challenge and the merits of a First Amendment overbreadth issue, which requires

a determination about whether the overbreadth of a statute is sufficiently substantial to justify

declaring the statute facially unconstitutional.

The Supreme Court of Utah appears to agree with the proposition that standing, as

opposed to the merits of an overbreadth claim, is a state law matter. In Provo City

Corporation v. Willden, that Court observed, “the federal rules on standing . . . are not

binding on state courts, and the article III constitutional restrictions and federalistic

prudential considerations that have guided the evolution of federal court standing law are not

necessarily relevant to the development of the standing rules that apply in Utah’s state

courts.” 768 P.2d 455, 456 (Utah 1989). The authors of Corpus Juris Secundum also seem

to agree. Relying on Virginia v. Hicks, that authority has explained, “[s]tate courts are not
 Johnson — 6
bound by federal rules of justiciability, even when they address issues of federal law.” 21

Corpus Juris Secundum Courts § 217, at p. 215 (2006).3

The majority seems to believe that the relaxed standing requirement applied by the

federal courts in First Amendment overbreadth cases is a part of the substantive guarantee

of the First Amendment, which the states are not free to avoid. Majority Opinion at 7-12.4

I disagree. Limiting consideration of First Amendment overbreadth claims to those litigants

who can demonstrate that their own constitutional rights have been violated would not mean

that this Court would ignore the application of the substantive rule enforced through the First

Amendment overbreadth doctrine. The substantive aspect of that doctrine requires

invalidation of a law when it is shown that the overbreadth of the law is substantial in

relation to its otherwise legitimate sweep. See Hicks, 539 U.S. at 120 (explaining, “whether

the claimed overbreadth [of a] policy [at issue] is sufficiently ‘substantial’ to produce facial

invalidity,” is the question that guides “the determination of [a] First Amendment challenge

on the merits.”). That substantive “merits” element of a First Amendment overbreadth

challenge establishes a diminished burden from the burden that is applicable in ordinary

3
See also Adam M. Samaha, Litigant Sensitivity in First Amendment Law, 98 Nw. U.L. Rev.
1291, 1292 (Summer 2004) (“State and federal courts must abide by the same First Amendment law,
but they need not use the same rules for standing. Different judiciaries might now provide
overbreadth challenges to different categories of litigants.”).
4
The majority argues: “Judge Yeary’s dissent suggests that, as a matter of state law, we
might be free to refuse to entertain overbreadth claims.” Majority Opinion at 7. But the majority is
mistaken. I do not believe we are free to refuse to entertain overbreadth claims generally. I do
believe we ought to refuse to address them when they are presented by individuals who have suffered
no constitutional deprivation.
 Johnson — 7
constitutionality challenges, which commands that a statue will not be declared

unconstitutional unless it is shown that it is unconstitutional in all of its applications. See

Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973) (explaining, “the plain import of our cases

is, at the very least, that facial overbreadth adjudication is an exception to our traditional

rules of practice,” and “the overbreadth of a statute must not only be real, but substantial as

well, judged in relation to the statute’s plainly legitimate sweep.”). Compare Washington

State Grange v. Washington State Republican Party, 552 U.S. 442, 449 (2008) (explaining

that, in most cases in which a defendant seeks a declaration that a statute is facially

unconstitutional, the Supreme Court requires a demonstration that the statute operates

unconstitutionally in all of its applications), with United States v. Salerno, 481 U.S. 739, 745

(1987) (explaining that a “challenger must establish that no set of circumstances exists under

which the Act would be valid”).

The majority correctly observes that the Virginia Supreme Court has addressed and

rejected my conclusion that Virginia v. Hick stands for the proposition that who may bring

a facial challenge alleging overbreadth is a matter of state law. Majority Opinion at 10-11;

see also Jaynes v. Commonwealth, 666 S.E.2d 303, 308 (2008). In Jaynes, the Virginia

Supreme Court concluded, “the opinion of the United States Supreme Court in [Virginia v.

Hicks] addressed the issue of First Amendment standing only in the context by which that

issue was placed before the Court: whether a state’s expansion of First Amendment standing

was subject to review by federal courts.” Jaynes, 666 S.E.2d at 310. Thus, that court
 Johnson — 8
concluded, “the seemingly broad language about standing in the [Virginia v. Hicks] opinion

cannot have the meaning now espoused by the Commonwealth.” Id.

Ah, but can it? I believe that it can. I believe it does, and I believe the Supreme Court

of Virginia probably reached the wrong conclusion because it made the same mistake this

Court makes in failing to perceive a difference between the two aspects of the overbreadth

doctrine applied by the United States Supreme Court; both courts (this Court and the Virginia

Supreme Court) fail to distinguish between the standing aspect of the Supreme Court’s

overbreadth doctrine and the aspect of its doctrine that addresses the merits of the

constitutionality question: whether a statute’s overbreadth is sufficiently substantial to find

that it violates the First Amendment.

The majority points to some United States Supreme Court cases that recite, in various

ways, a rule that I do not contest. Those cases stand merely for the indisputable proposition

that the overbreadth doctrine itself is a function of substantive First Amendment law.5 Unlike

the majority, however, I recognize a difference between the “standing” element employed

by the United States Supreme Court, to decide which litigants are permitted to bring a First

Amendment overbreadth claim in federal court, and the substantive element of such a claim

that requires measuring the substantiality of the statute’s overbreadth to determine whether

5
The majority cites and relies on cases that support this general proposition, such as: Sabri
v. United States, 541 U.S. 600, 610 (2004), Secretary of Maryland v. Joseph H. Munson Co., 467
U.S. 947, 958-959 (1984), and New York v. Ferber, 458 U.S. 747, 767 (1982). Majority Opinion at
8 & n.27.
 Johnson — 9
the statute is facially unconstitutional. It is the measurement of the statute’s overbreadth that

addresses the merits-based element of an overbreadth claim.

The majority also sets up a false comparison between claims brought by litigants

asserting First Amendment overbreadth and claims brought by litigants asserting Fourth

Amendment expectation-of-privacy issues. The majority observes that the latter issues

(involving the Fourth Amendment) can also be characterized as involving “standing,” but are

more accurately viewed as part of substantive Fourth Amendment law. To support that

proposition, the majority quotes from Rakas v. Illinois, 439 U.S. 128, 139-140 (1978), in

which the United States Supreme Court explained that “Fourth Amendment rights are

personal in nature” and that the “definition of those rights is more properly placed within the

purview of substantive Fourth Amendment law than within that of standing.” But the issue

of standing in First Amendment overbreadth cases is distinct from the conclusion that Fourth

Amendment rights themselves are only personal rights.

The majority observes that “[n]o one would claim . . . that a state court can decline to

entertain the Fourth Amendment claim of an overnight guest on the ground that overnight

guests simply do not have standing in state court under state law.” Majority Opinion at 12.

I agree. But that is because standing in that sense, under the Fourth Amendment, addresses

not whether the claimant has a sufficient personal interest to bring the claim at all, but rather,

whether the claimant has a sufficient privacy interest in the place searched to invoke Fourth
 Johnson — 10
Amendment protection. The issue of standing in a Fourth Amendment case goes directly to

whether the claimant’s own personal Fourth Amendment right has been violated.

It is also important to recognize that the Supreme Court has not invoked prudential

considerations to expand the concept of Fourth Amendment standing as it has in First

Amendment overbreadth cases. If it ever did, I might disagree with the majority about Fourth

Amendment standing. I believe we might indeed then—properly—question our right to

entertain a Fourth Amendment claim brought by one claimant based only on the invasion of

another person’s rights, even if the United States Supreme Court sanctioned it.

Rakas is also inapposite to the issue I have addressed. In Rakas, the Supreme Court

was faced with a request to expand its traditional rules of standing in Fourth Amendment

cases to allow criminal defendants to assert the Fourth Amendment rights of others when

seeking to exclude evidence from their trials. 439 U.S. at 129-130. The Supreme Court

declined that request. Id. at 150. Here, in contrast, the Supreme Court has already expanded

its traditional rules of standing. I question only whether the sources of law that animate or

restrain our authority permit us to follow their lead. The Court in Rakas described,

“misgivings as to the benefit of enlarging the class of persons who may invoke the

[exclusionary rule]” as a prudential consideration. Rakas, 439 U.S. at 138. To the degree that

expansion of traditional standing rules involves merely “prudential” considerations, even

when the expansion is sanctioned by the United States Supreme Court, the standing rules at

issue are no longer rooted in the substantive guarantees of the First Amendment.
 Johnson — 11
I believe that the question of whether the Texas Court of Criminal Appeals must

entertain a First Amendment overbreadth claim by a person who cannot demonstrate first that

his own constitutional rights have been violated is a matter of state law. I do not believe that

the relaxed standing requirement employed by the United States Supreme Court for

overbreadth claims is a substantive guarantee of the First Amendment. The Supreme Court

of the United States may no more compel this Court to hear such a claim by such a person

than it may compel this Court to entertain discretionary review in civil cases. Prior to this

time, I would have thought that the latter issue (that Supreme Court could never compel us

to hear civil cases because our state constitution forbids it) to be beyond dispute. Compare

T EX. C ONST. A RT. V, § 3 (jurisdiction of the Texas Supreme Court) with T EX. C ONST. A RT.

V, § 5(a) (jurisdiction of the Texas Court of Criminal Appeals).

B. Texas law limits this Court’s authority to address overbreadth claims

Having concluded that the standing element of an overbreadth claim is a matter of

state law, I next address whether there are reasons why this Court should refuse to adopt the

Supreme Court’s relaxed standing requirements for overbreadth cases. I conclude we should

not relax the standing requirements in Texas.

The Supreme Court of the United States derives its authority from Article III of the

United States Constitution, which limits its jurisdiction to “cases” and “controversies.” 6 That

Court explains that the doctrine of “standing” is a landmark that serves to identify which

cases will satisfy the Constitution’s case and controversy requirement. See Lujan v.
6
U.S. CONST . ART . III § 2 (extending “judicial power” to “cases” and “controversies”).
 Johnson — 12
Defenders of Wildlife, 504 U.S. 555, 559-562 (1992). But “standing,” the Court has

explained, has two strands: (1) Article III standing and (2) prudential standing. See Elk Grove

Unified Sch. Dist. V. Newdow, 542 U.S. 1, 11 (2004). Both are founded on concerns “about

the proper—and properly limited—role of the courts in a democratic society.” Warth v.

Seldin, 422 U.S. 490, 498 (1975).

To establish Article III standing, a claimant in federal court must show an “injury-in-

fact” which “helps to ensure that the plaintiff has a personal stake in the outcome of the

controversy.” Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2341 (2014) (internal

quotation marks omitted). However, the Supreme Court has also “adverted to a prudential

branch of standing, a doctrine not derived from Article III and not exhaustively defined but

encompassing . . . at least three broad principles: the general prohibition on a litigant’s

raising another person’s legal rights, the rule barring adjudication of generalized grievances

more appropriately addressed in the representative branches, and the requirement that a

plaintiff’s complaint fall within the zone of interests protected by the law invoked.” Lexmark

Int'l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1386 (2014) (internal

quotation marks omitted). These “broad principles,” which animate the federal court’s

“prudential branch of standing,” appear to me to be related more to the doctrine of separation

of powers than to the Article III constitutional limitation of the federal courts’ authority to

the determination of cases and controversies. Cf. id. (explaining, “From Article III’s

limitation of the judicial power to resolving Cases and Controversies, and the separation-of-
 Johnson — 13
powers principles underlying that limitation, we have deduced a set of requirements that

together make up the irreducible constitutional minimum of standing.”) (internal quotation

marks omitted).

The United States Constitution does not expressly require that the powers of the three

branches of the federal government be separated. It is the United States Supreme Court that

has judicially enforced the federal doctrine of the separation of powers. See Miller v. French,

530 U.S. 327, 341 (2000) (explaining, “[t]he Constitution enumerates and separates the

powers of the three branches of Government in Articles I, II, and III, and it is this very

structure of the Constitution that exemplifies the concept of separation of powers.”) (internal

quotation marks omitted). The Texas Constitution, in clear contrast, mandates in plain

language—appearing in the Constitution itself—that the “powers of the Government . . . shall

be divided.”7 The fact that separation of powers in Texas is not just a judicially observed

phenomenon, but a distinct, overt, and clearly stated constitutional mandate indicates to me

that our courts might have less discretion in defining the parameters of that doctrine for our

State than does the United States Supreme Court when it comes to its federal judicially made

separation of powers doctrine.

7
T EX. C ONST. A RT. II, § 1 (providing the following: “The powers of the Government of the
State of Texas shall be divided into three distinct departments, each of which shall be confided to
a separate body of magistracy, to wit: Those which are Legislative to one; those which are Executive
to another, and those which are Judicial to another; and no person, or collection of persons, being
of one of these departments, shall exercise any power properly attached to either of the others, except
in the instances herein expressly permitted.”)
 Johnson — 14
In fact, the author of today’s majority opinion once wrote, “this Court has enforced

the doctrine of separation of powers more aggressively than the United States Supreme Court

has.” State v. Rhine, 297 S.W.3d 301, 317 (Tex. Crim. App. 2009) (Keller, P.J., concurring,

in which Meyers, Hervey, and Holcomb, JJ., joined). Perhaps that is because our Texas

constitutional mandate that the powers of government remain separated is less subject to our

own independent interpretation than is the federal—court made—doctrine of separation of

powers. We should consider more seriously, then, whether the Texas Constitution’s

prohibition on actions by the Judiciary that invade the province of the Legislature might

impede our authority to execute the United States Supreme Court’s overbreadth doctrine in

the exact same manner as it is executed by that Court. And, consequently, I believe we should

consider whether we may permit Appellee in this case to claim—in state court—that the

statute under which he was convicted is unconstitutional in the absence of a showing that his

own constitutional rights have been violated.

Up to this point in time, this Court has simply assumed that it has the same authority

as the United States Supreme Court to disregard traditional notions of standing (or to alter

them) to address facial-overbreadth constitutional challenges in the area of the First

Amendment, regardless of a showing by the complaining party that his own constitutional

rights have been violated. But we might not have the authority to do that, and we ought not

simply to presume that we do without at least considering the matter with some skepticism.

It is simply not enough to conclude that, because United States Supreme Court has that
 Johnson — 15
power, we must have it as well. It would also be a mistake to conclude that the United States

Supreme Court has the power to confer or even mandate jurisdiction or power to act upon

this Court where the Texas Constitution and the Texas Legislature have not done so first. The

Court of Criminal Appeals is not merely a subsidiary of the United States Supreme Court,

or just a lesser federal court, even when it comes to questions of federal constitutional law.

For a court to judge a law to be substantially overbroad in violation of the First

Amendment, prohibiting its future enforcement certainly frees the public from concern that

it might be enforced against them should they choose to communicate in a manner appearing

to conflict with the terms of the law. It is also beyond dispute that the First Amendment needs

“breathing space,” and a statute that is unconstitutionally overbroad in violation of the First

Amendment may have the effect of chilling some protected expression until it is declared

unconstitutional. But when a court judges a statute’s potential unconstitutional breadth

without the benefit of a case in which its unconstitutional breadth has actually become known

by application, the court risks entering into the realm of speculation and conjecture; its

speculations and conjectures about the manners in which the law might be enforced may fail

to accord appropriate latitude to the other two branches of government charged with

upholding the constitution. To do so may also improperly invade the provinces that are

proper only to the other branches of government.8

8
To be sure, there have been times in history when the courts have been more quick than
other branches of government to address unconstitutional laws that were popular, such as when the
courts addressed the Jim Crow laws. But in a rush to declare statutes facially unconstitutional to
protect the public from what we judges consider to be overbroad laws, we might also on occasion
forget that we live in a somewhat cloistered world. We basically talk to ourselves, and our staff, and
 Johnson — 16
The majority’s decision in this case, to me, bears a striking resemblance to legislative

action. Here, an individual who was not unconstitutionally affected by the destruction of a

flag law at issue has, in effect, asked this Court to repeal the statute under which he was

properly and constitutionally charged and convicted, not because his own constitutional

rights were violated, but because the statute might be unconstitutionally applied against

others, in the future, who are not before the Court today. This Court has obliged his request.9

In doing so, we have arguably engaged in a function that should be reserved to the legislative

branch of our State’s government. Certainly, we would not have obliged his request, and

neither would the United States Supreme Court, if he had challenged the statute under any

theory other than that it violated the First Amendment.

perhaps we read a book from time to time. The other two branches of government have far greater
input on matters that directly affect the public than we do. The executive and legislative branches
of government naturally have opportunities to access and interact both with those officials who apply
our laws and with the citizens who are most directly affected by them. We in the judiciary have
nowhere near the same level of contact with the thoughts and opinions of real people. This
cloistering that affects the judiciary unlike the other branches of government puts us at a
disadvantage when measuring the true breadth of any law passed by the Legislature and approved
by the Governor. It also raises the specter that the court might, being called upon to speculate about
the possible applications of a law, declare a statute unconstitutionally overbroad—a statute that
would never have been enforced in a manner inconsistent with the First Amendment and would
never have been understood by ordinary citizens to reach constitutionally protected expression—by
imagining a perfectly fine law into a dangerous monster that threatens the very fabric of our nation.
We should guard ourselves against that.
9
Allowing a litigant to bring a claim in our state courts that a statute is unconstitutional when
he cannot show that it was unconstitutionally applied to him in his own case also invites us to
assume the power to issue advisory opinions. But we are without power to do that. See Pfeiffer v.
State, 363 S.W.3d 594, 600 (Tex. Crim. App. 2012) (observing that this Court is “without authority”
to render advisory opinions). In fact, as this Court has held before, “[i]t is well-established that this
Court is without constitutional or statutory authority to . . . render advisory opinions, except” for
when we are answering questions certified to us by a federal court. Ex parte Ruiz, 750 S.W.2d 217,
218 (Tex. Crim. App. 1988).
 Johnson — 17
Consistent with the requirement that a claimant demonstrate standing before being

allowed to advance a claim, the Supreme Court ordinarily requires adherence to the rule that,

“a person to whom a statute may constitutionally be applied will not be heard to challenge

[the] statute on the ground that it may conceivably be applied unconstitutionally to others,

in other situations not before the Court.” Broadrick v. Oklahoma, 413 U.S. at 610. That Court

has apparently relied on “prudential” considerations to relax this ordinary rule of standing

in cases alleging First Amendment overbreadth. However, I do not believe that we in Texas

are free to interpret our constitutionally mandated separation of powers provision as liberally

as the United States Supreme Court has interpreted its own court-made federal doctrine of

separation of powers, pursuant to merely “prudential” considerations. Consequently, in this

case, because Appellee cannot show that his own First Amendment rights have been violated,

I would conclude Appellee’s claim—that the Texas destruction-of-a-flag statute is facially

unconstitutional—is barred. Cf. Hollingsworth v. Perry, 133 S.C. 2652, 2659 (2013)

(explaining that when a claimant in federal court cannot establish standing to bring a claim,

the federal courts “have no authority to decide [a] case”).

THE COURT MISAPPLIES OVERBREADTH

Even assuming that we are authorized to address the facial constitutionality of the

destruction of a flag statute in spite of Appellee’s failure to demonstrate that the statute is

unconstitutional as applied to his own conduct, I still have serious concerns that Appellee has

failed to meet the bare requirements of the overbreadth doctrine, even as that doctrine has
 Johnson — 18
been applied by the United States Supreme Court. In Broadrick, the United States Supreme

Court explained,“where conduct and not merely speech is involved, . . . the overbreadth of

a statute must not only be real, but substantial as well, judged in relation to the statute’s

plainly legitimate sweep.” Broadrick, at 615. There is no question that the destruction of a

flag statute addresses conduct. The majority even acknowledges that “the conduct of

intentionally or knowingly damaging a United States flag is not inherently expressive.”

Majority Opinion at 20 & n.74; see also Johnson, 491 U.S. at 403 n.3. As a matter of fact,

the only way that the destruction of a flag statute can ever be applied to expressive conduct

is if an actor violates the statute with the additional self-initiated intent (not described in the

statute) to express some message. But the statute itself makes no reference to this additional

self-initiated intent.

In isolation, then, the destruction of a flag statute is a pure conduct regulation. In that

regard, it is really no different than our laws prohibiting disorderly conduct. See T EX. P EN.

C ODE § 42.01 (providing that a person commits an offense if, among other things, the person

intentionally or knowingly “(3) creates, by chemical means, a noxious and unreasonable odor

in a public place;” or “(5) makes an unreasonable noise in a public place . . . or in or near a

private residence that he has no right to occupy”). Like the destruction of a flag statute, the

disorderly conduct statute prohibits pure conduct. It is only when a discrete individual
 Johnson — 19
violates these laws with the additional self-initiated intent to communicate a message that any

potential violation of the First Amendment—even arguably—might occur.10

In many respects, the law at issue here is also comparable to the law at issue in

Virginia v. Hicks. The Supreme Court explained that Hicks “was not arrested for leafleting

or demonstrating without permission,” but rather, “[h]e violated [a] written rule that persons

who receive a barment notice must not return to the [Richmond Redevelopment and Housing

Authority] property.” Hicks, 539 U.S. at 121. The Court explained, “there comes a point at

which the chilling effect of an overbroad law, significant though it may be, cannot justify

prohibiting all enforcement of that law—particularly a law that reflects ‘legitimate state

interests in maintaining comprehensive controls over harmful, constitutionally unprotected

conduct.’ [citation omitted]. For there are substantial social costs created by the overbreadth

doctrine when it blocks application of a law to constitutionally unprotected speech, or

especially to constitutionally unprotected conduct.” Id. at 119 (first emphasis in the original;

second emphasis added).

It seems to me that a determination that a statute is unconstitutional on its face should

not be entirely dependent on the motivations of individual violators who attack it. At that

point, we are no longer truly addressing the facial constitutionality of the law itself, but the

mere constitutionality of the application of the law against the individuals who violate it with

10
The Texas Penal Code contains a defense to prosecution for cases in which a defendant
engages in conduct that would violate Section 42.01(a)(5) whenever that conduct “consists of speech
or other communication,” unless the defendant has disobeyed a reasonable order “to move, disperse,
or otherwise remedy the violation prior to his arrest[.]” TEX . PENAL CODE § 42.04(a), (c).
 Johnson — 20
an additional self-initiated intent to communicate a message.

The outer boundaries and reach of the overbreadth doctrine have not yet been defined

by the United States Supreme Court. We know that before a court may strike down a law

“where conduct and not merely speech is involved, . . . the overbreadth of a statute must not

only be real, but substantial as well, judged in relation to the statute’s plainly legitimate

sweep.” Broadrick, at 615. But what constitutes “substantial . . . in relation to . . . [its] plainly

legitimate sweep”? An easy argument can be made that it means the statute prohibits a lot of

protected speech! But the majority observes in this case only that it is “clear that the Texas

flag destruction statute violates the First Amendment when applied to some circumstances.”

Majority Opinion at 20 (emphasis added). The majority also concedes that there are at least

two types of situations that might involve permissible applications of the law. Majority

Opinion at 24-25. The majority then concludes that “[m]ost conduct that falls within the

provisions of the statute and that would come to the attention of the authorities would

constitute protected expression.” Majority Opinion at 25. But that conclusion can only be

drawn with reference to choices made outside of the parameters of the language of the statute

itself—and with a reference to choices made by actors who use the violation of this pure

conduct-regulating statute to accomplish their own purposes.

What is certain is that the overbreadth doctrine, as it is currently enforced by the

Supreme Court, requires an examination of the statute itself, and not merely the potential or

hypothetical First Amendment uses that violators of the statute might intend for it by their
 Johnson — 21
acts taken in violation of its provisions. United States v. Stevens, 559 U.S. 460, 485 (2010)

(explaining, “we have repeatedly emphasized that an overbreadth claimant bears the burden

of demonstrating from the text of [the law] and from actual fact, that substantial overbreadth

exists.”) (internal quotation marks omitted). The Supreme Court explains the doctrine this

way: “the overbreadth of a statute must not only be real, but substantial[.]” Broadrick, at 615

(emphasis added). Even the Supreme Court acknowledges that “there comes a point at which

the chilling effect of an overbroad law, significant though it may be, cannot justify

prohibiting all enforcement of that law.” Hicks, 539 U.S. at 119. That point might be where

the language of the statute on its face fails to implicate any kind of communicative efforts,

and where the only way the statute might prohibit First Amendment protected messages is

if the conduct is intended for that purpose solely by the actor. See Broadrick, 413 U.S. at 615

(explaining, “facial overbreadth adjudication . . . attenuates as the otherwise unprotected

behavior that it forbids the State to sanction moves from ‘pure speech’ toward conduct”).

This Court has not been asked to consider here, and it does not address, whether the

flag destruction statute might be unconstitutionally vague or whether it might operate

unconstitutionally for any other reason, such as in violation of a right to liberty generally. The

Court’s limitation of its opinion to the issue actually presented is, I believe, appropriate. Such

questions should be reserved for cases in which those issues are clearly before us.
 Johnson — 22
CONCLUSION

Appellee in this case has failed to demonstrate that his own conduct—that violated

the provisions of the destruction of a flag statute—was protected by the First Amendment.

In cases where the destruction of a flag statute operates unconstitutionally in violation of an

individual’s First Amendment rights as applied, I would agree that such an individual would

deserve relief.11 Under the circumstances presented here, I cannot agree.

FILED: October 7, 2015
PUBLISH

11
It seems to me that the chances that law enforcement officials would attempt to apply this
statute against an individual in violation of the First Amendment as construed by the United States
Supreme Court have been substantially diminished as a result of that Court’s opinions in Texas v.
Johnson and United States v. Eichman. The constitutional right to burn and/or otherwise destroy the
flag of the United States is now well and broadly known to the people of this country and beyond.
I would be surprised if even people commonly interviewed by Jesse Watters (host of Watters’ World
on the television show The O’Reilly Factor) would not know that the Supreme Court has protected
their right to express dissatisfaction by destroying the flag. In fact—perhaps because of those
opinions—flag burning and flag destruction appear to have become somewhat of a rite of passage
and even a badge of honor for domestic protesters of federal legislative and executive actions. It is
incredibly common today to hear stories of people dishonoring this revered symbol of our nation.
What has become much less common and almost non-existent since the United States Supreme
Court opinions in Johnson and Eichman is stories of people being arrested and prosecuted for
destroying a flag in the exercise of their First Amendment right of free speech. Consequently, the
urgency of striking down this law, even if its language does allow for the potential to reach some
constitutionally protected speech, is diminished as well.