Dear Dawg: We have a 7th grader who aspires to be a member of the U.S. Supreme Court. the kid reads court opinions during lunch, and speaks in unintelligible legalese half the time. And he takes great pleasure in being provocative.
So yesterday he pulled a Texas flag out of his backpack and set it on fire on the playground during lunchtime. Needless to say, this caused a commotion and the assistant principal sent the kid to ISS for the rest of the day. Now Mr. Smartypants is saying that the Texas Court of Criminal Appeals has held that he has a constitutional right to burn the Texas flag. He asked us, "haven't you read Judge Keller's opinion in State of Texas v. Johnson?". What's he talking about?. I HATE LAWYERS ANYWAY.
DEAR I HATE LAWYERS ANYWAY,
The kid is current, but he's wrong. The Texas Court of Criminal Appeals released its decision in State of Texas v. Johnson on October 7, 2015. They declared unconstitutional the Texas statute that made it a crime to intentionally damage a U.S. or Texas flag. The court held that the statute was "overbroad" and therefore unconstitutional. So the prosecution of Mr. Johnson could not proceed. Likewise, Mr. Smartypants, your future lawyer cannot be prosecuted under that statute.
That doesn't mean that there is a constitutional right to burn or otherwise damage the flag anywhere, anytime. We expect you would consider it a violation of the Code of Conduct to set fire to anything while on the school playground. Fire is dangerous, especially when kids are around. You are not prosecuting him for damaging a flag under the Texas Penal Code. You are enforcing your code of conduct's rules about setting fire to things.
The U.S. Supreme Court long ago determined that burning an American flag can be a form of expression, and thus it shot down the Texas statute regarding flag desecration. But again, that doesn't mean that a person can burn a flag anywhere, anytime.
Here's a weird tidbit for you. Both of these cases are styled Texas v. Johnson. The U.S. Supreme Court decided Texas v. Johnson in 1989. The Texas Court of Criminal Appeals decided Texas v. Johnson October 7, 2015. Looks like the State of Texas ought to just leave Mr. Johnson alone.
This kid isn't named Johnson, is he?
DAWG BONE: TEXAS HIGH COURT STRIKES DOWN "DAMAGING A FLAG" STATUTE. BUT YOU STILL CAN'T BURN A FLAG ON THE PLAYGROUND DURING SCHOOL.