PETITIONER'S REPLY BRIEF
No. 88-155
In The
Supreme Court of the United States
October Term, 1988
____________________
THE STATE OF TEXAS,
vs.
GREGORY LEE JOHNSON,
_____________________
ON WRIT OF CERTIORARI
TO
THE TEXAS COURT OF CRIMINAL APPEALS
______________________
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John
Vance
Criminal
District Attorney
Dallas County, Texas
Kathi Alyce Drew
Assistant District Attorney
(Counsel of Record)
Dolena T. Westergard Assistant
District Attorney
600 Commerce Street Dallas,
Texas 75202-4606
(214) 653-7910
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TABLE
OF CONTENTS
INDEX
OF AUTHORITIES
| CASES |
|
|
Chance v. State, 563 S.W.2d 812 (Tex. Crim. App. 1978).............................................
|
|
| City
Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984)......................
|
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| Coates
v. Cincinnati, 402 U.S. 611 (1971) ................................................................ |
|
| Floyd
v. State, 575 S.W.2d 21 (Tex. Crim. App. 1978) ................................................ |
|
|
Holmes v. Wallace, 407 F.Supp. 493 (M.D. Ala.), aff'd, 540 F.2d 1083 (5th
Cir. 1976)........ |
|
|
Lapolla v. Dullaghan, 63 Misc.2d 157, 311 N.Y.S.2d 435 (N.Y. Sup. Ct.
1979) .................. |
|
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N.A.A.C.P. v. Claiborne Hardware Co., 458 U.S. 886 (1982) .......................................... |
|
| New
York State Club Ass'n. v. City of New York, U.S. , 108 S.Ct. 2225 (1988)
................ |
|
| Parker
v. Morgan, 322 F.Supp. 585 (W.D.N.C. 1971) ................................................... |
|
|
Smith v. Goguen, 415 U.S. 566 (1974) ..................................................................... |
|
|
State of Delaware ex rel. Trader v. Hodsdon, 265 F.Supp. 308 (D.C. Del.
1967) ............... |
|
|
Street v. New York, 394 U.S. 576 (1969) ................................................................. |
|
| Thornhill
v. Alabama, 310 U.S. 88 (1940) .................................................................. |
|
| Village
of Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489 (1982) .................. |
|
| |
|
| STATUTES |
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36 U.S.C. § 174.................................................................................................... |
|
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36 U.S.C. § 175.................................................................................................... |
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36 U.S.C. § 176(k)................................................................................................ |
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36 U.S.C. § 177.................................................................................................... |
|
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TEX. GOV'T CODE ANN. § 312.002 (Vernon 1988)........................................................ |
|
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TEX. PENAL CODE ANN. § 6.03 (Vernon 1974)............................................................. |
|
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TEX. PENAL CODE ANN. § 7.01 (Vernon 1974)............................................................. |
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TEX. PENAL CODE ANN. § 7.02 (Vernon 1974)............................................................. |
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| TEX.
PENAL CODE ANN. § 42.09 (Vernon 1974)........................................................... |
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| OTHERS |
|
|
Black's Law Dictionary 1602 (4th ed. 1968)................................................................ |
|
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Webster's New Collegiate Dictionary 243 (1980).......................................................... |
|
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Webster's New Collegiate Dictionary 293 (1980).......................................................... |
|
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Webster's New Collegiate Dictionary 304 (1980).......................................................... |
|
|
Webster's New Collegiate Dictionary 730 (1980).......................................................... |
|
|
Webster's New Collegiate Dictionary 859(1980).......................................................... |
|
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Webster's New Collegiate Dictionary 1051(1980)......................................................... |
|
| |
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COMES NOW THE STATE
OF TEXAS, Petitioner, and respectfully submits this brief in reply to the brief
of Respondent, Gregory Lee Johnson.
[ARGUMENT]
I. SECTION 42.09(a)(3) DOES NOT PROHIBIT CONDUCT
ON THE BASIS OF COMMUNICATIVE IMPACT
The primary thrust of Respondent's argument is that §
42.09(a)(3) "singles out for prohibition only such conduct as will have
a 'seriously offen[sive]' communicative impact on others."1
Resp. Br. 10. Johnson argues that "[b]ecause the flag carries such a powerful
symbolic meaning, almost any conduct with regard to it is communicative." Resp.
Br. 32. Johnson also claims that "flagburning . . . provides a powerful medium
for the message of dissent from government policies or disrespect for the government
itself." Id. These arguments assume that an individual who abuses a flag is
always "saying something" by virtue of that abuse. The arguments also assume
not only that all acts of flagburning are disrespectful and constitute a means
of dissent, but that the disrespect/dissent is directed at the government itself,
and not at some other entity2.
These assumptions have no basis in fact.
Johnson's arguments also constitute a gross mischaracterization of the statute.
The focus of the Texas statute is on a particular act and the accompanying mens
rea. The statute is essentially designed to protect the physical integrity of
the flag. The Texas statute does not single out conduct that expresses an anti-government
message. Section 42.09 does not regulate the content of the message, if any,
sought to be conveyed; rather, the statute regulates conduct and the manner
in which the conduct is effectuated. See Pet. Br. 44.
In this regard, the crime does not turn on the reaction, if any, of those who
view an act of flag desecration, but on an intentional act of severe, flagrant
physical abuse of the flag. The statute, by its terms, is not concerned with
any expression which may accompany the act of flag desecration. Thus, the State's
proscription is not limited to those acts of desecration which communicate unacceptable
ideas about the flag. The statute does not punish only those who desecrate the
flag "for the purpose of disparaging it as a symbol," but also those who would
not necessarily desecrate the flag with that motive or purpose. See Smith v.
Goguen, 415 U.S. 566, 598-599 (1974) (Rehnquist, J., dissenting).
The First Amendment was never intended to extend to physical acts of destruction
involving the American flag. The fact that an individual may intend an act of
flag desecration to convey a message, even a particularized message, is insufficient
to cloak the act with First Amendment protection. An individual "leaves the
arena of speech" and crosses the line into unprotected conduct when he engages
in an act of wanton destruction.
Moreover, the statute can be read so that the "serious offense" language is
applicable only to that portion of the definition of desecrate which modifies
the term "physically mistreat." Indeed, the very placement of the commas may
well indicate that the legislature intended that the terms "deface" and "damage"
stand alone without any further clarification. Read in this way, the "serious
offense" language becomes pertinent only in a marginal case where it is questionable
whether an act of physical mistreatment of the flag is serious enough to constitute
desecration.
The Texas Court of Criminal Appeals did not specifically interpret the meaning
of the definition of "desecrate," nor did it decide the relationship of the
definition to the remainder of the statute. More importantly, the court did
not find that the language rendered the statute "essentially communicative"
or proscribed penalties for expressive impact alone. The court held only that
the language was too broad to justify the statute as a breach of the peace statute3.
In the alternative,
if this Court deems that § 42.09(a)(3)
does regulate expressive conduct or conduct with communicative impact, the State
has nonetheless elaborated two compelling interests that justify regulating
that conduct. These interests -- preserving the flag as a symbol of nationhood
and national unity and preventing a breach of the peace -- have been discussed
in depth in the State's brief on the merits. Pet. Br. 19-37. Those interests
and the State's discussion of those interests have been all but ignored by Respondent.
Texas' interests are sufficient to justify whatever minimal infringement of
speech may ensue from enforcement of the statute.
II. SECTION 42.09(a)(3) IS "VIEWPOINT NEUTRAL"
Johnson claims that the statute is "viewpoint based," in that it "favors
the State's viewpoint that the flag is a 'symbol of nationhood and national
unity' at the expense of all other views." Resp. Br. 13. Johnson states that
"[t]hose who seek to celebrate the viewpoint sanctioned by the State, however,
may burn the flag, so long as they do so ceremoniously." Id. This is simply
not the case.
Section 42.09(a)(3) does not permit impairment
of the flag's physical integrity by those who do not seek to disparage it as
a symbol or by those who seek to "praise" the flag or this country. Texas prohibits
flagburning regardless of the message, if any, sought to be conveyed by the
conduct. A flagburning is a flagburning; a flagburning as a "contra memorial"
is as illegal as a "contra protest." Cf. Amici Br. ACLU 14-15. A flagburning
to "demonstrate respect for the symbol," Resp. Br. 14, does not decriminalize
the conduct.
In propounding his claim that Texas would allow a flag to be destroyed to show
patriotism or to make some affirmation of faith to the nation, Johnson refers
to 36 U.S.C. § 176(K). While that statute does provide that the "proper" way
to dispose of a flag is to burn it in a dignified way, this refers only to the
retirement from service of a flag too worn to be displayed, not to the act of
burning a flag to proclaim a patriotic stance.
For many, the flag
may be the ultimate symbol of patriotism. For others, it may symbolize a nation
unresponsive or even oppressive. Still others may view the flag with no discernable
emotion at all. Texas regulates none of these viewpoints. Texas only commands
all within its borders and subject to its jurisdiction to refrain from desecrating
the flag4. The statute demands only
that the flag be left alone, physically unimpaired5.
III.
SECTION 42.09(a)(3) IS NOT UNCONSTITUTIONALLY VAGUE
In his brief, Johnson
has reiterated the vagueness challenges raised in the Texas courts. He claims
that the statute is vague because it "fails to draw a comprehensible line between
those acts of flagburning it prohibits and those it permits." Resp. Br. 24. Johnson's
argument focuses primarily on § 42.09(b)
which defines "desecrate" as meaning, in part, to "physically mistreat" in a way
that the actor knows will "seriously offend" one or more persons likely to observe
or discover his action. Assuming, without conceding, that Johnson is entitled
to present this argument6, §
42.09(a)(3) is not unconstitutionally vague.
Recently, in New
York State Club Ass'n. v. City of New York, U.S. , 108 S.Ct. 2225, 2233 (1988),
this Court reiterated the general rule that a facial challenge is proper under
the First Amendment only when the challenged law could never be applied in a valid
manner or when, even though a law may be validly applied to defendant, it is so
broad that it may inhibit the constitutionally protected free speech of third
parties:
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Properly
understood, the latter kind of facial challenge is an exception to ordinary
standing requirements, and is justified only by the recognition that free
expression may be inhibited almost as easily by the potential or threatened
use of power as by the actual exercise of that power. Both exceptions, however,
are narrow ones: the first kind of facial challenge will not succeed unless
the court finds that "every application of the statute created an impermissible
risk of suppression of ideas," and the second kind of facial challenge will
not succeed unless the statute is "substantially" overbroad, which requires
the court to find "a realistic danger that the statute itself will significantly
compromise recognized First Amendment protections of parties not before
the Court." |
(Citations
omitted). See also City Council of Los Angeles v. Taxpayers for Vincent, 466
U.S. 789, 797-798 (1984), citing Thornhill v. Alabama, 310 U.S. 88 (1940). In
a facial challenge to the overbreadth and vagueness of a law, a court's first
task is to determine whether the enactment reaches a substantial amount of constitutionally
protected conduct. If it does not, then the overbreadth challenge must fail.
A court should then examine the facial vagueness challenge and, assuming the
enactment implicates no constitutionally protected conduct, uphold the challenge
only if the enactment is impermissibly vague in all of its applications. Village
of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-495
(1982).
Under Texas law,
a statute is not rendered vague merely because the words or terms used are not
defined. Even a statute which appears vague may be given constitutional clarity
when aided by standard rules of statutory construction. One such rule is that
terms not defined in a statute are given their ordinary meaning. TEX. GOV'T
CODE ANN. § 312.002 (Vernon 1988). Words defined in dictionaries and with meanings
so well known as to be understood by a person of ordinary intelligence are not
considered vague or indefinite. Floyd v. State, 575 S.W.2d 21, 23 (Tex. Crim.
App. 1978).
Johnson first attacks
the terms "physically mistreat" as vague. Surely, the word "physically" is understandable.
See Webster's New Collegiate Dictionary 859 (1980) which defines "physical"
as "having material existence." "Mistreat," too, is readily capable of definition.
See Webster's New Collegiate Dictionary 730 (1980) which defines "mistreat"
as "to treat badly: abuse7."
There is no question in this case but that Johnson "abused" the "material existence"
of the flag by burning it. The term "seriously offend" is also readily understandable.
"Seriously" has been defined as "to a serious extent; severely." Webster's New
Collegiate Dictionary 1051 (1980). "Serious" is defined, in relevant part, as
"deeply interested" and "having important or dangerous possible consequences."
Id. at 1050. "Offend" is defined, in part, as "to cause dislike, anger, or vexation,"
"to cause to feel vexation or resentment usu[ally] by violation of what is proper
or fitting." Id. at 790. Thus, an individual is guilty under this portion of
the statute if he "abuses" the "material existence" of the flag in a way that
he knows might produce a reaction of resentment or anger with possible dangerous
consequences.
A fair reading
of § 42.09(a)(3) reveals that the
Texas statute regulates conduct which significantly impairs the physical integrity
of the flag and no more. A reasonable person of common intelligence is placed
on sufficient notice of what the statute forbids. Certainly any individual of
common intelligence would have no difficulty in discerning that the act of soaking
an American flag with lighter fluid and igniting it constitutes desecration.
Contrary to Johnson's
assertions, application of the statute does not depend upon or vary with the
sensibilities of persons likely to observe the conduct. The definition of "desecrate"
modifies the culpable mental state. The statute does not proscribe reckless
or negligent handling of the flag, only intentional and knowing abuse -- the
kind of mistreatment that the actor knows is not innocent but is intentional
and designed to seriously offend. A relatively casual touching or mishandling
of the flag, such as wadding it up and tucking it under a tee shirt, which might
"offend" the sensibilities of some persons, is not within the reach of this
statute. Instead, Section 42.09 punishes only conduct which constitutes severe
physical abuse of the flag which an individual knows is likely to seriously
offend potential observers. The statute is invoked only when an individual commits
flagrant abuse of the flag.
Section 42.09(a)(3)
differs significantly from the statute condemned in Coates v. Cincinnati, 402
U.S. 611 (1971). At issue in Coates was a municipal ordinance making it a criminal
offense for three or more persons to assemble on any sidewalk and there conduct
themselves in a manner annoying to persons passing by. Id. at 612 n. 1. This
Court found that the statute was vague8
because "no standard of conduct is specified at all." Id. at 614. Section 42.09
is quite different from the ordinance in Coates. Section 42.09(a)(3)
clearly specifies the offensive conduct contemplated by use of the term "desecrate"
-- deface, damage or physically mistreat. This is a definite standard of conduct.
Individuals of common intelligence need not guess at the meaning of this statute.
Smith v. Goguen,
415 U.S. 566 (1974), is also distinguishable. That case involved a Massachusetts
flag misuse statute which made it an offense to "treat contemptuously9"the
United States flag. Id at 570, 571. A majority of this Court concluded that
this language was impermissibly vague10
on its face, holding that it supplied no standard. This Court reasoned that
the statute, which had received no narrowing state court interpretation, failed
to draw reasonably clear lines between the kinds of nonceremonial treatment
of the flag that it criminalized and those that it did no. Id. at 57411.
Unlike Goguen,
the Texas statute establishes a definite standard of conduct. Section 42.09(a)(3)
clearly defines what type of conduct constitutes desecration, i.e., defacement,
damage or physical mistreatment. If the complained-of "serious offense" language
modifies the entire definition, it goes to the culpable mental state of the
individual at the time he engaged in the proscribed conduct and to the manner
in which that conduct is performed. The mental element of "knows"12
narrows the statute to reach only intentional acts13.
No actual serious offense need occur in order for the statute to be violated14.
The statute is not inherently subjective.
On its face, § 42.09(a)(3) does
not foreclose any individual from exercising his right to free speech. Nor does
it prohibit any individual from using the flag or displaying the flag in informal
ways to express his opinions. What is prohibited are clear, severe and flagrant
acts of flag desecration.
IV.
SECTION 42.09(a)(3) IS NOT UNCONSTITUTIONALLY OVERBROAD
In part, Johnson's
overbreadth argument is premised on the incorrect assumption that the statute
regulates "use," "display" and "misuse of the flag." Resp. Br. 24. To support
this argument, Johnson sets forth a "laundry list" of conduct, based on the
Flag Code, 36 U.S.C. §§ 174-177, which he claims the Texas statute would prohibit.
Resp. Br. 28-29.
The federal Flag
Code is directory in nature, not mandatory15,
as use of the word "should" throughout those provisions clearly indicates. The
Flag Code merely sets forth proper etiquette in dealing with the flag. No penalties,
civil or criminal, apply to violations of its terms. Moreover, the customs discussed
in the Flag Code relate to use and display of the flag, not to its desecration
Section 42.09(a)(3) does not proscribe
misuse or improper display of the flag; rather, it prohibits desecration of
the flag. By defining "desecrate16"
as "deface," "damage" or otherwise "physically mistreat" in a way that the actor
knows will seriously offend one or more persons likely to observe or discover
his action, § 42.09(b) clearly proscribes
only flagrant acts of physical abuse or destruction. The statute is not designed
to regulate any of the examples suggested by Respondent.
V. SECTION 42.09(a)(3) IS DESIGNED TO REACH ONLY
ACTIONS THAT PHYSICALLY DAMAGE OR DESTROY THE FLAG AND WHICH ARE, BY THEIR VERY
NATURE, VIOLENT
Johnson insists that he "peacefully" burned the flag. Resp. Br. 1, 3, 8, 30.
The apparent thrust of this argument is that he cannot be punished for flag
desecration because no actual violence occurred. The State fails to see how
a wanton act of flagburning can be characterized as "peaceful;" by its very
nature, the act is violent. Violence17
was unquestionably done to the flag. Certainly Johnson has no claim that his
act was peaceful. Johnson burned the flag in a public place at the climax of
a turbulent, destructive and potentially violent demonstration in the midst
of a crowd of demonstrators and onlookers. Considering the surrounding demonstration
and the intensely public place in which the act occurred, it can hardly be characterized
as anything but "inherently inflammatory," literally, as well as figuratively.
While it is true that no actual violence among persons occurred, this was merely
fortuitous. It was the response of those who witnessed the act that was peaceful;
the act itself was not. The fact that the response of those who witnessed the
act was peaceful does not render the act peaceful. In the case at bar, Johnson
soaked the flag with lighter fluid and ignited it in the midst of a crowd of
persons in an undisputedly public place. The flag was totally consumed. This
is exactly the sort of violent conduct prohibited by the terms of §
42.09(a)(3).
VI. SECTION 42.09(a)(b) DOES NOT PERMIT CONVICTION
BASED UPON WORDS OR ASSOCIATIONS
As Johnson acknowledges, nothing in the terms of §
42.09(a)(3) permits a conviction based upon words18.
Resp. Br. 33-34. Likewise, nothing in the trial court's charge to the jury authorized
conviction for any words spoken19.
(R.I-47-51). Johnson was prosecuted and convicted for an act of flag desecration,
not for using foul language, engaging in contemptuous speech, or making disparaging
remarks about the flag20. While
the trial prosecutor did, in final jury arguments, refer to Johnson's words
and extraneous conduct throughout the course of the demonstration, all such
evidence was intended to show the destructive, turbulent and potentially violent
atmosphere in which the flagburning occurred. This was recognized by the intermediate
court of appeals. J.A. 25.
It should also be noted that Johnson's defense21
at trial was that he was not the flagburner. Texas permits criminal responsibility
to be placed on one who, acting with the intent to promote or assist the commission
of the offense, "solicits, encourages, directs, aids, or attempts to aid" another
in the commission of the offense. TEX. PENAL CODE ANN. §§ 7.01, 7.02
(Vernon 1974). The jury was charged under the law of parties. (R.I-49). This
instruction was submitted without objection22.
A "converse" charge was also submitted at Johnson's request. (R.I-49; R.V-629).
Thus, it was incumbent upon the trial prosecutor to argue in favor of any theory
under which Johnson could be found guilty. The fact that one may be guilty as
a party to a violation of § 42.09
does not render the statute a prohibition on association.
CONCLUSION
Section 42.09 reflects the Texas legislature's
attempt to define "with substantial specificity what constitutes forbidden treatment"
of the flag. See Smith v. Goguen, 415 U.S. at 581-582. The statute is aimed
at severe, flagrant and provocative acts of physical abuse and destruction of
the flag, the symbol of this nation. Moreover, § 42.09(a)(3) proscribes
only acts done in a public context which, by their very nature, are likely to
create a breach of the peace. The language utilized by the statute -- desecrate,
deface, damage, physically mistreat -- contemplates violent acts which are clearly
intentional and malicious. The Texas Court of Criminal Appeals erred in concluding
that this statute violated the federal guarantee of freedom of speech as applied
to Johnson. For the foregoing reasons, in addition to those urged in its brief
on the merits, the State requests that the judgment of the Texas Court of Criminal
Appeals be, in all respects, reversed.
Respectfully submitted,
JOHN VANCE, Criminal District Attorney, Dallas County, Texas
KATHI ALYCE DREW, Assistant District Attorney (Counsel of Record)
DOLENA T. WESTERGARD, Assistant District Attorney,
600 Commerce Street, Dallas, Texas 75202-4606, (214) 653-7910
1) Johnson's argument that one must "foresee what will 'seriously
offend' not merely all potential passers-by, but also all who might 'discover'
his action later through word of mouth, the news media, or a photograph,"
Resp. Br. 25, completely misconstrues the statute, which clearly relates only
to actual discovery as opposed to reported discovery.
2) This is an interesting argument in view of the fact that
Johnson's own trial exhibits were directed largely at the policies of certain
American corporations and not at the "government" per se. (R.V-833; Def. Ex.
1).
3) The Court of Criminal Appeals found this clause overbroad
only as a breach of the peace statute, reasoning that serious offense would
not always result in a breach of the peace. Pet. App. 13. Even if this erroneous
legal conclusion is binding upon this Court, it does not void the statute. The
Texas court did not address the overbreadth question vis-a-vis the nationhood
and national unity interest, nor did it address overbreadth in the context of
the First Amendment. The Court of Criminal Appeals found only that the statute
could not be applied to Johnson as a breach of the peace statute since no actual
violence occurred. Id.
4) Texas agrees that the United States flag is "sui generis."
Parker v. Morgan, 322 F.Supp. 585,588 (W.D.N.C. 1971); Amici Br. for W.L.F.
11. The flag is "of its own kind or class." Black's Law Dictionary 1602 (4th
ed. 1968). It is unique, a special entity whose ownership carries with it
special responsibilities.
5) The applicability of § 42.09 to the desecration of other
objects should help clarify this fact. The statute does not permit "ceremonial"
damage to a tombstone or "dignified" defacement of the Alamo.
6) The intermediate court of appeals found nothing vague
about the terms of the statute. J.A. 20. The Court of Criminal Appeals, which
had granted Johnson's petition for discretionary review on this point, specifically
declined to address this issue. Pet. App. 2,4,21. This argument, if successful,
would substantially alter the judgment by determining that the statute is
unconstitutional on its face. This issue should have been raised, if at all,
in a cross-petition for certiorari.
7) The terms "deface" and "damage," which are also part
of the statutory definition of desecrate, are also well-defined terms. See
Webster's New Collegiate Dictionary 293 (1980) ("deface" is defined as "to
mar the external appearance . . . injure by effacing significant details")
and 284 ("damage" is defined in part as "loss or harm resulting from injury
to . . . property"). A flag is unquestionably damaged when burned. Johnson
was specifically charged by information with damaging and physically mistreating
the flag by burning it. J.A. 3. The jury had to specifically find that burning
the flag constituted "damage" or "physical mistreatment" in order to return
a conviction. (R.I-50).
8) The dissent by Justice White found the statute was not
vague as "[a]ny man of average comprehension should know that some kinds of
conduct, such as assault or blocking passage on the street, will annoy others
and are clearly covered by the 'annoying conduct' standard of the ordinance."
402 U.S. at 618.
9) Treating a flag "contemptuously" is different from physically
mistreating a flag in a way that the actor knows will seriously offend others.
"Contemptuously," by its very nature, means "manifesting, feeling, or expressing
contempt," which is defined as "lack of respect or reverence for something."
Webster's New Collegiate Dictionary 242-243 (1980). "Treats contemptuously"
is thus an act which, by its very nature, must express a lack of respect.
See Goguen, 415 U.S. at 588 (White, J., concurring).
10) Justice White, concurring in the judgment, found that
the statute was not vague, but was, in fact, capable of understanding by "anyone
with at least a semblance of common sense." 415 U.S. at 584. Justice White
also found that the statute was not vague as to Goguen because he was "under
no misapprehension as to what he was doing" and because "[i]t should not be
beyond the reasonable comprehension of anyone who would conform his conduct
to the law to realize that sewing a flag on the seat of his pants is contemptuous
of the flag." Id. at 584-585. Those justices who dissented agreed that the
statute was not vague. Id. at 590 (Blackmun, J., dissenting). Id. at 591 (Rehnquist,
dissenting). Both dissents were joined by then Chief Justice Burger.
11) Goguen's act was wearing a small flag sewn to the seat
of his pants. There was no allegation or evidence of physical desecration.
The opinion characterized Goguen's conduct as "immaturity," "silly conduct,"
"casual treatment of the flag" and "informal use of the flag," 415 U.S. at
573, 574, all vastly different matters from soaking a flag with lighter fluid
and igniting it.
12) Under Texas law, a person acts knowingly, or with knowledge,
with respect to the nature of his conduct or to circumstances surrounding
his conduct when he is aware of the nature of his conduct or that the circumstances
exist; a person acts knowingly, or with knowledge, with respect to a result
of his conduct when he is aware that his conduct is reasonably certain to
cause the result. TEX. PENAL CODE ANN. § 6.03(b) (Vernon 1974). The Texas
Court of Criminal Appeals has acknowledged that "knowingly" has acquired a
technical meaning not necessarily equivalent to the common, everyday usage
of such word. See Chance v. State, 563 S.W.2d 812, 815-816 (Tex. Crim. App.
1978). By burning the flag in the manner he did, Johnson was aware that his
conduct was reasonably certain to cause serious offense.
13) This mental element was absent from Coates.
14) Thus, Johnson's argument that the "legal observers"
were merely offended, as opposed to seriously offended, is beside the point.
15) The federal Flag Code is not intended to proscribe
behavior but is fashioned as an expression of prevalent custom and usage regarding
display of the American flag. Lapolla v. Dullaghan, 63 Misc.2d 157, 311 N.Y.S.2d
435, 438 (N.Y. Sup. Ct. 1979); see also Holmes v. Wallace, 407 F.Supp. 493,
496 (M.D. Ala.), aff'd, 540 F.2d 1083 (5th Cir. 1976); State of Delaware ex
rel. Trader v. Hodsdon, 265 F.Supp. 308, 310 (D. Del. 1967).
16) See also Webster's New Collegiate Dictionary 304 (1980).
17) The First Amendment does not protect acts of violence.
N.A.A.C.P. v. Claiborne Hardware Co., 458 U.S. 886, 916 (1982).
18) This is a crucial distinction from the statute condemned
in Street v. New York, 394 U.S. 576 (1969), which prohibited speaking defiant
or contemptuous words about the flag.
19) In keeping with the instructions given by the trial
court (R.I-47-51), the jury could not have returned a verdict of guilty based
solely upon Johnson's "words and associations." Resp. Br. 33-34. To have rendered
such a verdict could have constituted jury misconduct, a point not raised
by Johnson either in Motion for New Trial or on direct appeal.
20) In fact, Johnson's protestations that he was convicted
because of his many and harsh words against this country and because of his
associations with his fellow protesters evidences the significant alternative
avenues of communication that the State of Texas did allow.
21) Johnson did not testify in his own behalf at the guilt/innocence
stage of the trial; all defensive evidence was presented by witnesses who
had been observers of the demonstrations for the ACLU, an interesting coincidence
since ACLU attorneys represented Johnson at trial and through the state appellate
process and have appeared as amici on his behalf in this Court.
22) Error was, nevertheless, raised on this point on direct
appeal. The intermediate court of appeals found no error, primarily because
"the bulk of the State's argument was premised on Johnson's culpability as
a sole actor." J.A. 24