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.
398 U. S.
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.
398 U. S.
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.
Page 398 U. S. 59
MR. JUSTICE BLACK delivered the opinion of the Court.
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. . . ." [
Footnote
1] 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 [
Footnote 2] 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
Page 398 U. S. 60
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 anti-war 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
Page 398 U. S. 61
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.
I
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, out-door
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
398 U. S. 60 and
this page. It may be that the performances were crude and
Page 398 U. S. 62
amateurish and perhaps unappealing, but the same thing can be
said about many theatrical performances. We cannot believe that,
when Congress wrote out special exception for theatrical
productions, it intended to protect only a narrow and limited
category of professionally produced plays. [
Footnote 3] 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
Page 398 U. S. 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.
II
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
Page 398 U. S. 64
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, n.
1 (1969);
Heflin v. United States, 358 U.
S. 415,
358 U. S. 418
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 the 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
Page 398 U. S. 65
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.
[
Footnote 1]
Title 18 U.S.C. § 702 provides as follows:
"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."
[
Footnote 2]
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.
[
Footnote 3]
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).
MR. JUSTICE HARLAN, concurring.
I join Part I of the Court's opinion. With respect to Part II, I
agree with the Court's rejection of the Government's
"jurisdictional" contention premised on the untimely filing of the
petition for certiorari. In my view, however, that contention
deserves fuller consideration than has been accorded it in the
Court's opinion.
I
The Court's opinion does not fully come to grips with the
Solicitor General's position. The Court rejects the argument that
untimeliness under Rule 22(2) should be given jurisdictional effect
by stating, in part, that the Rule "contains no language that calls
for so harsh an interpretation." In this regard, however, the time
limitation found in Rule 22(2) is no different from those
established by statute; [
Footnote
2/1] neither makes explicit reference to waivers of the
limitation. In the absence of language providing for waiver, we
have without exception treated the statutory limitations as
jurisdictional. [
Footnote 2/2] The
Solicitor General asks why we should not do the same under our
Rule. This issue,
i.e., why we treat time requirements
Page 398 U. S. 66
under our Rule differently from the requirements imposed by
statute, is hardly acknowledged in the Court's opinion. Moreover,
although it is true that
Talianetti v. United States,
394 U. S. 316 n. 1
(1969), and
Heflin v. United States, 358 U.
S. 415 418 n. 7 (1959), held that the Court could waive
untimeliness under our Rule, neither opinion explained why this is
so. The Solicitor General does not belittle those two cases merely
because each dealt with the problem in a footnote, but rather urges
that they are inconclusive because neither gave reasons for the
conclusion. [
Footnote 2/3]
II
My own analysis of the issue presented here begins with an
examination of the statutory authority for Rule 22(2). This is
found in what is now 18 U.S.C. § 3772, [
Footnote 2/4] a provision authorizing this Court to
prescribe
Page 398 U. S. 67
post-verdict rules of practice and procedure in criminal cases.
Section 3772 specifically delegates to this Court the power to
promulgate rules prescribing "the times for and manner of taking
appeals [to the Courts of Appeals] and applying for writs of
certiorari. . . ." While the legislative history of this provision
evinces a congressional concern over undue delays in the
disposition of criminal cases, [
Footnote 2/5] the broad terms of the statutory language,
as well as what was written in the committee reports, [
Footnote 2/6] convince me that Congress'
purpose was to give this Court the freedom to decide what time
limits should apply.
Under the unqualified delegation found in § 3772, I have no
doubts concerning this Court's authority to promulgate a rule that
required certiorari petitions to be filed within 30 days of the
judgment below, but that expressly provided that this requirement
could be waived for good cause shown, in order to avoid unfairness
in extraordinary cases. I also think the Court might promulgate a
rule that expressly provided that untimeliness could not be waived
even for "excusable neglect" -- in other words a "jurisdictional
rule." [
Footnote 2/7]
Page 398 U. S. 68
Rule 22(2), as promulgated, contains no express provision
allowing for waiver. It is clear from prior decisions that the
Court has interpreted the rule to allow for such a waiver, however.
[
Footnote 2/8] So interpreted, I
find Rule 22(2) no less authorized under 18 U.S.C. § 3772 than
would be a rule that, by its terms, provided expressly for the
possibility of a waiver.
Nor do I find it at all anomalous that this Court on occasion
waives the time limitations imposed by its own Rules, and yet
treats time requirements imposed by statute as jurisdictional. As a
matter of statutory interpretation, the Court has not presumed the
right to extend time limits specified in statutes where there is no
indication of a congressional purpose to authorize the Court to do
so. Because we cannot "waive" congressional enactments, the
statutory time limits are treated as jurisdictional. On the other
hand, for the time requirement of Rule 22(2), established under a
broad statutory delegation, it is appropriate to apply the "general
principle" that
"'[i]t is always within the discretion of a court or an
administrative agency to relax or modify its procedural rules
adopted for the orderly transaction of business before it when, in
a given case, the ends of justice require it,'"
American Farm Lines v. Black Ball, 397 U.
S. 532,
397 U. S. 539
(1970), quoting from
NLRB v. Monsanto Chemical Co., 205
F.2d 763, 764 (C.A. 8th Cir.1953).
III
Although I therefore conclude that this Court possesses the
discretion to waive the time requirements of Rule
Page 398 U. S. 69
22(2), it must be recognized that such requirements are
essential to an orderly appellate process. Consequently, I believe
our discretion must be exercised sparingly, and only when an
adequate reason exists to excuse noncompliance with our Rules. In
the present case, I agree with the Court that petitioner has
adequately explained why he failed to meet our time requirements.
On this basis I concur in Part II of the Court's opinion.
[
Footnote 2/1]
Compare Rule 22(2)
with, e.g., 28 U.S.C. §§
2101(b), (c). Both the Rule and this statute provide for limited
extensions of time. There was, however, no extension in the case
before us.
[
Footnote 2/2]
E.g., Matton Steamboat Co., Inc. v. Murphy,
319 U. S. 412
(1943);
Department of Banking v. Pink, 317 U.
S. 264 (1942);
Citizens Bank v. Opperman,
249 U. S. 448
(1919).
[
Footnote 2/3]
The Government relies on language in
United States ex rel.
Coy v. United States, 316 U. S. 342
(1942), a case not cited by the Court, as support for its claim
that the 30-day limit established by rule was "jurisdictional." The
issue in that case was which time limit -- the 30-day limit imposed
by what was then Rule XI or instead the 90-day limit of the general
statutory provision -- applied to a petition for certiorari for
review of a circuit court affirmance of a district court denial of
a motion to correct sentence in a criminal case. After noting that
the petition was filed more than 30 days after the judgment of the
Court of Appeals, the Court said:
"If the judgment of the Court of Appeals is one to which Rule XI
applies, the petition for certiorari was filed too late, and we are
without jurisdiction,"
id. at
316 U. S. 344.
In disposing of the case, however, the opinion simply stated that
the "writ will . . . be dismissed for failure to comply with Rule
XI,"
id. at
316 U. S. 346, not
for want of jurisdiction. In any event, the Court in
Coy
did not focus on the issue of whether for good cause Rule XI might
be waived, thereby removing a time limitation that otherwise might
be termed jurisdictional.
[
Footnote 2/4]
18 U.S.C. § 3772 derives from 47 Stat. 904 (1933) and 48 Stat.
399 (1934). Before these enactments, certiorari in criminal cases
was governed by the general three-month time limitation provided by
§ 8(a) of the Judiciary Act of February 13, 1925, 43 Stat. 940.
[
Footnote 2/5]
See H.R.Rep. No. 2047, 72d Cong., 2d Sess., 2 (1933);
S.Rep. No. 257, 73d Cong., 2d Sess., 1 (1934).
[
Footnote 2/6]
See H.R.Rep. No. 2047,
supra, at 2 ("A
statutory code of procedure is not flexible; changes made desirable
by experience cannot be promptly made. The overwhelming weight of
opinion among judges and lawyers is that matters of practice and
procedure may better be controlled by rule than by statute.").
[
Footnote 2/7]
See United States v. Robinson, 361 U.
S. 220 (1960), where we held that, under the Federal
Rules of Criminal Procedure, the Court of Appeals could not enlarge
the time for filing an appeal even though it has found "excusable
neglect." The Court thought,
inter alia, that time
extensions were inconsistent with the express language of Rule
45(b) and the "deliberate intention" of its drafters.
In that case, the Court decided that the "conflicting
considerations" in favor of or against an "excusable neglect"
provision should be "resolved through the rulemaking process, and
not by judicial decision," given the rather clear indications from
the language and background of the existing rule that the omission
had been deliberate. Although the Government relies heavily on
Robinson here, neither the language nor the background of
Rule 22(2) indicates a "deliberate intention" to preclude
waiver.
[
Footnote 2/8]
See, e.g., Heflin v. United States, supra; Taglianetti v.
United States, supra.
MR. JUSTICE WHITE, with whom THE CHIEF JUSTICE and MR. JUSTICE
STEWART join, concurring in the result.
I agree that Congress cannot constitutionally distinguish
between those theatrical performances that do and those that do not
"tend to discredit" the military, in authorizing persons not on
active duty to wear a uniform. I do not agree, however, with the
Court's conclusion that, as a matter of law, petitioner must be
found to have been engaged in a "theatrical production" within the
meaning of 10 U.S.C. § 772(f). That issue, it seems to me, is
properly left to the determination of the jury.
The United States has argued that the exception for "theatrical
productions" must be limited to performances in a setting
equivalent to a playhouse or theater, where observers will
necessarily be aware that they are watching a make-believe
performance. Under this interpretation, the Government suggests,
petitioner must be found as a matter of law not to have been
engaged in a "theatrical production"; hence, his conviction for
unauthorized wearing of the uniform is lawful without regard to the
validity of the "tend to discredit" proviso to § 772(f). The Court,
on the other hand, while refusing to assay a definition of the
statutory language, flatly declares that, under any interpretation,
Congress could not possibly have meant to exclude petitioner's
"street skit" from the class of "theatrical productions." Neither
extreme, in my view, is correct. The critical question
Page 398 U. S. 70
in deciding what is to count as a "theatrical production" ought
to be whether or not, considering all the circumstances of the
performance, an ordinary observer would have thought he was seeing
a fictitious portrayal, rather than a piece of reality. And,
although the judge's instructions here did not precisely reflect
this interpretation, this question seems eminently suited to
resolution by the jury.
Under proper instructions, then, a jury could have concluded
that no theatrical production was involved, in which case the
verdict should be sustained. However, the judge's instructions also
permitted conviction on a finding that petitioner was engaged in a
theatrical production, but that the production tended to discredit
the military.
See App. 51-54. Since the general verdict
does not disclose which of these findings -- only one of which can
constitutionally entail conviction -- was the actual finding, the
conviction must of course be reversed.
Stromberg v.
California, 283 U. S. 359
(1931). I thus join the judgment of reversal, but find it neither
necessary nor correct to hold that petitioner's "theatrics"
perforce amounted to a "theatrical production."