Schacht v. United States, 398 U.S. 58 (1970)

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Syllabus

Petitioner, who participated in a skit performed several times in front of an Armed Forces induction center demonstrating opposition to American involvement in the Vietnam conflict, was convicted by a jury of violating 18 U.S.C. § 702, which makes criminal the unauthorized wearing of an American military uniform or part thereof. Petitioner alleged that he was authorized to wear the uniform by 10 U.S.C. § 772(f), which permits wearing of a uniform while one is portraying a member of an armed force in a theatrical or motion picture production "if the portrayal does not tend to discredit that armed force." His conviction was affirmed by the Court of Appeals, and he filed a petition for certiorari after the time specified in Supreme Court Rule 22(2) had expired.

Held:

1. The street skit in which petitioner participated was a "theatrical production" within the meaning of § 772(f). Pp. 61-62.

2. The words "if the portrayal does not tend to discredit that armed force" in § 772(f) impose an unconstitutional restraint on freedom of speech, and must be stricken from the section to preserve its constitutionality. Pp. 62-63.

3. The time requirement of Rule 22(2) is not jurisdictional and may be waived by the Court. Pp. 63-65.

414 F.2d 630, reversed.