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Military Uniform Wear

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It would seem, on the surface, that the law is pretty plain, right? None of the above categories cover Halloween. Or, do they?

Section 772 (f) allows the uniform to be worn in a theatrical production. Is Trick or Treat a "theatrical production?" Nobody knows, because no court has ever defined this. The closest a court has come is the Supreme Court, who used a very liberal interpretation of "theatrical production" in SCHACHT v. UNITED STATES, 398 U.S. 58 (1970). In this case, the court said:

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 (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 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. 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 [398 U.S. 58, 62] 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.

By the way, in making this decision, the Supreme Court also struck the words, "if the portrayal does not tend to discredit that armed force," from the statute as unconstitutional. The court said:

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 [398 U.S. 58, 63] 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.

So, in the above Supreme Court case, the court defined "theatrical production" very liberally, and struck out as unconstitutional the prohibition that the portrayal not tend to discredit the military.

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