Analysis of Schacht v. US

Jacob Rosenblum

AP Government

On February 29^th, 1968 an actor by the name of Daniel Jay Schacht performed in a rehearsed skit while wearing an accurate replica of a military uniform¹. The skit was in opposition to the Vietnam conflict. In this play, Mr. Schacht’s role portrayed the military in what some called a, “negative way”.² The play was performed on the street in front of the Armed Forces Induction Center in Houston, Texas with the intention of exposing the evil of the American presence in Vietnam. According to Mr. Schacht, the street skit was part of a larger, peaceful antiwar demonstration at the induction center that morning. The Court of Appeals’ opinion in Mr. Schacht’s indictment summarized the facts surrounding the skit.³

• “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 a cap. A second person was wearing military colored overalls. 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. 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.”⁴

Mr. Schacht after his performance was indicted in a United States District Court for violating statute 18 U.S.C. 702 which states, “ Whoever, in any place within the jurisdiction of the United States or in the Canal Zone, without authority, wears the uniform or a distinctive part thereof or anything similar to a distinctive part of the uniform of any of the armed forces of the United States, Public Health Service or any auxiliary of such, shall be fined not more than $250 or imprisoned not more than six months, or both.”⁵ Mr. Schacht was clearly breaking 18 U.S.C. 702, but the base of his offense and which later got his case heard before the Supreme Court was statute 10 U.S.C. 772 (f) which states, “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.”⁶The constitutionality of U.S.C. 772 (f) was the federal law that the Supreme Court in the case of Schacht v. United States most directly discussed.

To shed further light on the details of this case, the respondent, the United States Government, argued that this case seemed to somehow imply that what Mr. Schacht and his fellow actors did in Houston should not be treated as a “theoretical production” within the meaning of 772 (f) because the production was not performed in a “theatrical setting” or by professional actors⁷. The Supreme Court didn’t oblige the Government’s argument and instead was fairly critical of it stating, “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 War⁸.” Needless to say this argument did not hold water in the eyes of the Supreme Court.

On May 25^th, 1970 Schacht v. US was decided in favor of Mr. Schacht. Considering the statutes and the actions that resulted in Mr. Schacht’s arrest, the Court decided the actor’s First Amendment rights were being infringed upon⁹. Under the precedent set forth by the case of United States v. O’Brien in 1968 (A criminal prohibition against burning draft cards did not violate the First Amendment, because its effect on speech was only incidental, and it was justified by the significant government interest in maintaining an efficient and effective military draft system),the Supreme Court did not feel that 18 U.S.C. 702 withheld constitutional rights, but that statute 10 U.S.C 772 (f) that resided under the same legal umbrella was most certainly an affront to the First Amendment¹⁰. In Schacht v. US the precedent set forth by United States v. O’Brien was specified and given limits. Schacht v. US was able to restore a precedent that guaranteed freedom to protest, which O’Brien in some ways hindered.

The Supreme Court’s official decision, written by Justice Black, agreed with the petitioner’s complaint that the last clause of 772 (f) would most certainly “impose an unconstitutional restraint of [the] right of free speech¹¹.” Mr. Black argued that together with statute 702 and 772 (f) Congress had 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. He went on to comment that the last clause of the 772 (f) denies citizen’s constitutional right to freedom of speech, including the right to openly criticize one’s government during a dramatic performance. The Court felt that because an actor, like everyone else in our country, enjoys a constitutional right to freedom of speech federal law 772 (f) was unconstitutional stating, “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 Amendment¹².”

An Analysis-

The majority of the plays and films we admire today as being revolutionary or milestones in American culture are those often those which are critical of wars, conflicts, or of the military. If the Supreme Court had not decided in favor of the appellant, Mr. Schacht, works included in this category would not have been able to be produced. The decision of Justice Black and his fellow Justices not only underpins the precedent that bans on content no matter the form restrict an individual’s right to free speech, but the decision also ignites fervent debate on the issue of 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? This question to this day is still being argued. This case in general also brings to light a somewhat curious and scary thought. How is it that Congress was able to construct such a law in the fist place (i.e. 772 (f))? A limit on free speech is the antithesis to what our constitution guarantees all of its citizens so how is it that Congress was able to pass the law with such ease?