# Schacht v. United States/Opinion of the Court

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United States Supreme Court
398 U.S. 58
Schacht v. United States
Argued: March 31, 1970. --- Decided: May 25, 1970
The petitioner, Daniel Jay Schacht, was indicted in a United States District Court for violating 18 U.S.C. § 702, which makes it a crime for any person 'without authority (to wear) the uniform or a distinctive part thereof * * * of any of the armed forces of the United States, * * *' He was tried and convicted by a jury, and on February 29, 1968, he was sentenced to pay a fine of $250 and to serve a six-month prison term, the maximum sentence allowable under 18 U.S.C. § 702. There is no doubt that Schacht did wear distinctive parts of the uniform of the United States Army and that he was not a member of the Armed Forces. He has defended his conduct since the beginning, however, on the ground that he was authorized to wear the uniform by an Act of Congress, 10 U.S.C. § 772(f), which provides as follows:
'When wearing by persons not on active duty authorized.
'(f) While portraying a member of the Army, Navy, Air Force, or Marine Corps, an actor in a theatrical or motion-picture production may wear the uniform of that armed force if the portrayal does not tend to discredit that armed force.' (Emphasis added.)
Schacht argued in the trial court and in this Court that he wore the army uniform as an 'actor' in a 'theatrical production' performed several times between 6:30 and 8:30 a.m. on December 4, 1967, in front of the Armed Forces Induction Center at Houston, Texas. The street skit in which Schacht wore the army uniform as a costume was designed, in his view, to expose the evil of the American presence in Vietnam and was part of a larger, peaceful antiwar demonstration at the induction center that morning. The Court of Appeals' opinion affirming the conviction summarized the facts surrounding the skit as follows:
'The evidence indicates that the demonstration in Houston was part of a nationally coordinated movement which was to take place contemporaneously at several places throughout the country. The appellants and their colleagues prepared a script to be followed at the induction center and they actually rehearsed their roles at least once prior to the appointed day before a student organization called the 'Humanists'.
'The skit was composed of three people. There was Schacht who was dressed in a uniform and cap. A second person was wearing 'military colored' coveralls. The third person was outfitted in typical Viet Cong apparel. The First two men carried water pistols. One of them would yell, 'Be an able American,' and then they would shoot the Viet Cong with their pistols. The pistols expelled a red liquid which, when it struck the victim, created the impression that he was bleeding. Once the victim fell down the other two would walk up to him and exclaim, 'My God, this is a pregnant woman.' Without noticeable variation this skit was reenacted several times during the morning of the demonstration.' 414 F.2d 630, 632.
* Our previous cases would seem to make it clear that 18 U.S.C. § 702, making it an offense to wear our military uniforms without authority is, standing alone, a valid statute on its face. See, e.g., United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). But the general prohibition of 18 U.S.C. § 702 cannot always stand alone in view of 10 U.S.C. § 772, which authorizes the wearing of military uniforms under certain conditions and circumstances including the circumstance of an actor portraying a member of the armed services in a 'theatrical production.' 10 U.S.C. § 772(f). The Government's argument in this case seems to imply that somehow what these amateur actors did in Houston should not be treated as a 'theatrical production' within the meaning of § 772(f). We are unable to follow such a suggestion. Certainly theatrical productions need not always be performed in buildings or even on a defined area and as a conventional stage. Nor need they be performed by professional actors or be heavily financed or elaborately produced. Since time immemorial, outdoor theatrical performances, often performed by amateurs, have played an important part in the entertainment and the education of the people of the world. Here, the record shows without dispute the preparation and repeated presentation by amateur actors of a short play designed to create in the audience an understanding of and opposition to our participation in the Vietnam war. Supra, at 60 and this page. It may be that the performances were crude and amateurish and perhaps unappealing, but the same thing can be said about many theatrical performances. We cannot believe that when Congress wrote out a special exception for theatrical productions it intended to protect only a narrow and limited category of professionally produced plays. Of course, we need not decide here all the questions concerning what is and what is not within the scope of § 772(f). We need only find, as we emphatically do, that the street skit in which Schacht participated was a 'theatrical production' within the meaning of that section.
This brings us to petitioner's complaint that giving force and effect to the last clause of § 772(f) would impose an unconstitutional restraint on his right of free speech. We agree. This clause on its face simply restricts § 772(f)'s authorization to those dramatic portrayals that do not 'tend to discredit' the military, but, when this restriction is read together with 18 U.S.C. § 702, it becomes clear that Congress has in effect made it a crime for an actor wearing a military uniform to say things during his performance critical of the conduct or policies of the Armed Forces. An actor, like everyone else in our country, enjoys a constitutional right to freedom of speech, including the right openly to criticize the Government during a dramatic performance. The last clause of § 772(f) denies this constitutional right to an actor who is wearing a military uniform by making it a crime for him to say things that tend to bring the military into discredit and disrepute. In the present case Schacht was free to participate in any skit at the demonstration that praised the Army, but under the final clause of § 772(f) he could be convicted of a federal offense if his portrayal attacked the Army instead of praising it. In light of our earlier finding that the skit in which Schacht participated was a 'theatrical production' within the meaning of § 772(f), it follows that his conviction can be sustained only if he can be punished for speaking out against the role of our Army and our country in Vietnam. Clearly punishment for this reason would be an unconstitutional abridgment of freedom of speech. The final clause of § 772(f), which leaves Americans free to praise the war in Vietnam but can send persons like Schacht to prison for opposing it, cannot survive in a country which has the First Amendment. To preserve the constitutionality of § 772(f) that final clause must be stricken from the section.
The Government's brief and argument seriously contend that this Court is without jurisdiction to consider and decide the merits of this case on the ground that the petition for certiorari was not timely filed under Rule 22(2) of the Rules of this Court. This Rule provides that a petition for certiorari to review a court of appeals' judgment in a criminal case 'shall be deemed in time when * * * filed with the clerk within thirty days after the entry of such judgment.' We cannot accept the view that this time requirement is jurisdictional and cannot be waived by the Court. Rule 22(2) contains no language that calls for so harsh an interpretation, and it must be remembered that this rule was not enacted by Congress but was promulgated by this Court under authority of Congress to prescribe rules concerning the time limitations for taking appeals and applying for certiorari in criminal cases. See 18 U.S.C. § 3772; Rule 37, Fed.Rules Crim.Proc. The procedural rules adopted by the Court for the orderly transaction of its business are not jurisdictional and can be relaxed by the Court in the exercise of its discretion when the ends of justice so require. This discretion has been expressly declared in several opinions of the Court. See Taglianetti v. United States, 394 U.S. 316, 89 S.Ct. 1099, 22 L.Ed.2d 302, n. 1 (1969); Heflin v. United States, 358 U.S. 415, 418, 79 S.Ct. 451, 453, 3 L.Ed.2d 407, n. 7 (1959). See also R. Stern & E. Gressman, Supreme Court Practice, 242-244 (4th ed. 1969), and the cases cited therein. It is true that the Taglianetti and Heflin cases dealt with this time question only in footnotes. But this is no reason to disregard their holdings and in fact indicates the Court deemed a footnote adequate treatment to give this issue.
When the petition for certiorari was filed in this case it was accompanied by a motion, supported by affidavits, asking that we grant certiorari despite the fact that the petition was filed 101 days after the appropriate period for filing the petition had expired. Affidavits filed with the motion, not denied or challenged by the Government present facts showing that petitioner had acted in good faith and that the delay in filing the petition for certiorari was brought about by circumstances largely beyond his control. Without detailing these circumstances, it is sufficient to note here that after consideration of the motion and affidavits this Court on December 15, 1969, granted the motion, three Justices dissenting. The decision of this Court waiving the time defect and permitting the untimely filing of the petition was thus made several months ago, and no new facts warranting a reconsideration of that decision have been presented to us.
For the reasons stated in Parts I and II of this opinion, the judgment of the Court of Appeals is reversed.
Reversed.

## Notes

* ↑ Title 18 U.S.C. § 702 provides as follows:
* ↑ Schacht wore a blouse of the type currently authorized for Army enlisted men with a shoulder patch designating service in Europe. The buttons on his blouse were of the official Army design. On his head Schacht wore an outmoded military hat. Affixed to the hat in an inverted position was the eagle insignia currently worn on the hats of Army officers.
* ↑ The precise language of 10 U.S.C. § 772(f) derives from the 1956 revision of Titles 10 and 32, which was undertaken for the purpose of combining laws affecting the Armed Forces, eliminating duplicate provisions, and clarifying statutory language. At that time the phrase 'actor in a theatrical or motion-picture production' was substituted for the previous phrase 'in any playhouse or theater or in moving-picture films while actually engaged in representing therein a military * * * character * * *.' 39 Stat. 216-217. Although the 1956 revision and codification were not in general intended to make substantive changes, changes were made for the purpose of clarifying and updating language. The shift to the present version of § 772(f) clearly reflects an intent to move to broader, more flexible language which, for example, would include television as well as other types of theatrical productions wherever presented. H.R.Rep. No. 970, 84th Cong., 1st Sess., 8; Statements of Senators O'Mahoney and Wiley, 102 Cong.Rec. 13944, 13953 (July 23, 1956).
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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