Can the government prevent people from using particular symbols or images only when they are used to bring “disrespect” to some part of the government? This was the question facing the Supreme Court in the case of Schacht v. United States and they justices ruled against the government. According to the Supreme Court, actors could wear military uniforms in theatrical productions even if those productions could be found to “discredit” the armed forces in some manner.
Schacht v. United States: Background
Federal law banned wearing military uniforms without proper authority; an exception was made for theatrical productions, but not if they discredited the military:
-
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.
In 1967, Daniel Jay Schacht engaged in skits outside a military recruitment center as part of demonstrations against the Vietnam war. The 5th Circuit Court described the skit:
-
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.’
Schacht was convicted by a jury, fined $250, and sentenced to the maximum of six months in jail. This was upheld by the 5th Circuit Court and Schacht appealed to the Supreme Court.
Schacht v. United States: Decision
The Supreme Court reversed Schacht’s conviction. The justices accepted that the government can limit use of military uniforms to only those who are authorized, so the questions were whether Schacht was authorized by participating in a theatrical production and whether a portrayal that “discredits” the military could be a crime.
First, the Court found that the skit was a theatrical production. Justice Black wrote:
-
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” ... We are unable to follow such a suggestion.
Certainly theatrical productions need not always be performed in buildings or even on a defined area such 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.
Justices White, Stewart, and Burger disagreed in part, arguing a jury to decide whether the skit was a theatrical production.
Next, they agreed the law placed an undue burden on Schacht’s right to free speech:
-
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 [outlawing unauthorized wearing of military uniforms and specifying criminal penalties], 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.
Although not explicitly stated, the principle here is that once the government opens an area for private expression, there can be no content-based discrimination. All non-military uses of uniforms could be banned, but if their use is authorized in contexts where the military approves of the message, they can’t criminalize use of the same uniforms in the same contexts where they don’t like the message.
Schacht v. United States: Significance
Many plays and films, critical of wars or the military, couldn’t have been made without this decision. Not only does it reinforce the ban on content-based discrimination on private speech, but it is also used in debates about bans on flag burning. If the state cannot limit use of military uniforms to contexts where they approve of the message, how can it ban “desecration” of the flag on the theory that this encourages disrespect for the flag?
