Schacht v. United States
398 U.S. 58, 1970 U.S. LEXIS 39, 90 S. Ct. 1555 (1970)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
A statute that makes it a crime for an actor wearing a military uniform to say things during a theatrical performance that tend to discredit the armed forces is an unconstitutional abridgment of freedom of speech under the First Amendment.
Facts:
- Daniel Jay Schacht wore distinctive parts of a United States Army uniform.
- Schacht was not a member of the Armed Forces.
- On December 4, 1967, Schacht participated in a street skit performed several times in front of the Armed Forces Induction Center in Houston, Texas, as part of an antiwar demonstration.
- The skit involved Schacht in a uniform, a second person in 'military colored' coveralls, and a third person in Viet Cong apparel.
- Schacht and the second person, yelling 'Be an able American,' shot the Viet Cong character with water pistols containing red liquid, creating the impression of bleeding.
- After the Viet Cong character fell, the other two exclaimed, 'My God, this is a pregnant woman.'
- The skit was designed to expose opposition to the American presence in Vietnam and had been rehearsed at least once prior to the demonstration.
Procedural Posture:
- Daniel Jay Schacht was indicted in a United States District Court for violating 18 U.S.C. § 702 (unauthorized wearing of a military uniform).
- Schacht was tried by a jury and convicted.
- He was sentenced to a $250 fine and a six-month prison term.
- The Court of Appeals affirmed the conviction.
- Schacht filed a petition for certiorari with the Supreme Court 101 days after the deadline under Rule 22(2).
- The Supreme Court granted Schacht's motion to waive the untimeliness and hear the petition, with three Justices dissenting.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does the clause in 10 U.S.C. § 772(f) that restricts the wearing of military uniforms by actors in theatrical productions if the portrayal "tends to discredit" the armed forces violate the First Amendment's guarantee of freedom of speech?
Opinions:
Majority - Mr. Justice Black
Yes, the clause in 10 U.S.C. § 772(f) that restricts wearing military uniforms by actors if the portrayal "tends to discredit" the armed forces violates the First Amendment. While 18 U.S.C. § 702 generally prohibits unauthorized wearing of uniforms, 10 U.S.C. § 772(f) creates an exception for actors in "theatrical productions." The Court finds that the street skit in which Schacht participated was indeed a "theatrical production" within the meaning of the statute, broadly interpreting the phrase to include amateur, outdoor performances. When the "tend to discredit" restriction is read in conjunction with the general prohibition, it effectively criminalizes speech critical of the military while in uniform. This creates an unconstitutional abridgment of an actor's constitutional right to freedom of speech, as it allows punishment for opposing the Army's role in Vietnam but not for praising it. The First Amendment does not permit such a restriction. Additionally, the Court asserts that its procedural rules, like the 30-day deadline for filing certiorari petitions under Rule 22(2), are not jurisdictional and can be waived in the Court's discretion when justice requires, especially if good faith and circumstances beyond the petitioner's control caused the delay.
Concurring - Mr. Justice Harlan
Yes, the "tend to discredit" clause is unconstitutional, and the Court has the discretion to waive the untimeliness of the certiorari petition. I join Part I of the Court's opinion. Regarding Part II, I agree that the Government's jurisdictional argument based on the untimely certiorari petition should be rejected. I distinguish between statutory time limitations, which are generally treated as jurisdictional because the Court cannot waive congressional enactments, and time limits imposed by the Court's own rules, which are promulgated under broad statutory delegation. Under this distinction, the Court retains the discretion to relax or modify its procedural rules when the ends of justice require it, as supported by the general principle articulated in American Farm Lines v. Black Ball. This discretion should be exercised sparingly and only for adequate reasons, which I find to be present in this case due to petitioner's good faith and circumstances beyond his control.
Concurring - Mr. Justice White
Yes, the conviction must be reversed because Congress cannot constitutionally distinguish between theatrical performances that do and do not "tend to discredit" the military. However, I disagree with the majority's conclusion that Schacht's actions must be considered a "theatrical production" as a matter of law. I believe that whether an activity constitutes a "theatrical production" under 10 U.S.C. § 772(f) should be a question for the jury. The critical determination for the jury should be whether, considering all circumstances, an ordinary observer would have perceived the performance as a fictitious portrayal rather than reality. Since the jury in this case could have based its general verdict on either the unconstitutional "tend to discredit" clause or a finding that it was not a theatrical production (a determination I believe should have been left to them), and we cannot know which it was, the conviction must be reversed under Stromberg v. California.
Analysis:
This case significantly reinforces First Amendment protections for expressive conduct, particularly when criticizing government policy, even within specific statutory exceptions. By striking down the 'tend to discredit' clause, the Court affirmed that the government cannot restrict speech based on its content, especially when it seeks to suppress criticism. The ruling also clarifies the Supreme Court's authority to waive its own procedural rules, distinguishing them from jurisdictional statutory requirements, which impacts appellate practice and access to justice in exceptional circumstances. Future cases involving expressive conduct, theatrical performances, or symbolic speech will look to Schacht for its affirmation of broad First Amendment rights.
