Facts
- Daniel Jay Schacht, a civilian antiwar protester, wore distinctive parts of a U.S. Army uniform without military authority during a planned street skit outside an Armed Forces Induction Center in Houston, Texas (Dec. 4, 1967).
- Schacht was indicted under 18 U.S.C. § 702, which criminalizes unauthorized wearing of a U.S. military uniform or a distinctive part of it.
- Schacht asserted authorization under 10 U.S.C. § 772(f), which permitted actors in theatrical productions to wear a uniform “if the portrayal does not tend to discredit that armed force.”
- The skit was scripted, rehearsed, and repeatedly performed; it depicted persons in military garb shooting a “Viet Cong,” followed by a line indicating the victim was a pregnant woman, and conveyed criticism of U.S. military actions in Vietnam.
- A jury convicted Schacht; he was fined $250 and sentenced to six months’ imprisonment.
- The Fifth Circuit affirmed, concluding the street skit was not a “theatrical production” under § 772(f) and upholding the “discredit” limitation.
- Schacht’s petition for certiorari was filed late under then-applicable Supreme Court Rule 22(2), but the Court granted review.
Issues
- Whether the street skit qualified as a “theatrical production” under 10 U.S.C. § 772(f), authorizing a civilian actor to wear a military uniform.
- Whether § 772(f)’s limitation allowing uniform-wearing only when the portrayal “does not tend to discredit” the armed forces violates the First Amendment by discriminating based on viewpoint.
- Whether the time limit in Supreme Court Rule 22(2) for filing a petition for certiorari was jurisdictional or could be waived.
Decision
- The Court held the skit was a “theatrical production” within the meaning of § 772(f).
- The Court held the phrase “if the portrayal does not tend to discredit that armed force” was unconstitutional because it permitted favorable portrayals while punishing critical ones.
- The Court severed the unconstitutional “discredit” phrase from § 772(f), leaving the remainder operative.
- The Court reaffirmed that the general ban on unauthorized uniform-wearing in 18 U.S.C. § 702 is valid on its face.
- The Court held Rule 22(2)’s filing deadline was not jurisdictional and could be waived; it reached the merits.
- The Court reversed and vacated Schacht’s conviction.
Legal Principles
- The government may enforce a generally applicable, content-neutral prohibition on unauthorized wearing of military uniforms.
- The First Amendment forbids conditioning a statutory exception on the speaker’s viewpoint, including allowing only noncritical portrayals of the armed forces while punishing critical portrayals.
- When a statute contains an unconstitutional clause that can be removed without defeating the remainder, the offending language may be severed to preserve the valid portions.
- A non-jurisdictional Supreme Court filing deadline may be waived by the Court in appropriate circumstances.
Conclusion
The Court vacated Schacht’s conviction because the statutory exception for theatrical uniform use unconstitutionally discriminated against critical portrayals of the military; by severing the “discredit” limitation, the Court allowed uniform use in theatrical productions without regard to viewpoint while leaving the general unauthorized-wearing ban intact.