Schacht v. United States

RESPONDENT: United States
LOCATION: Manhattan Municipal Building

DECIDED BY: Burger Court (1969-1970)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 398 US 58 (1970)
ARGUED: Mar 31, 1970
DECIDED: May 25, 1970

Facts of the case


Media for Schacht v. United States

Audio Transcription for Oral Argument - March 31, 1970 in Schacht v. United States

Warren E. Burger:

We'll hear 628, Schacht against the United States.

Mr. Berg, you may proceed whenever you're ready.

David H. Berg:

Mr. Chief Justice and May it please the Court.

The petitioner's case arises out of his conviction under Title 18, United States code 702, which prohibits impertinent part being authorized to wearing of distinctive parts of arm forces uniform are parts similar to distinctive parts of the armed forces uniform.

The appendix to our brief sets out the statutes in total.

The conduct that the defendant at the trial below engaged in was his taking part in a Vietnamese protest.

The protest took place in front of the Army Induction Center in Houston Texas on December 4, 1967.

The petitioner was wearing as part of the protest, parts of a military uniform.

His part in the protest was to discord a water gun filled with red ink at someone dressed as a Viet Cong.

The Viet Cong would fall.

He would run, shouting “Be an able American” to the fallen Viet Cong and say “My God, this is a pregnant woman.”

After his performance a few hours later, he was arrested tried, convicted on the charge that I've set out before.

His sentence was six months to be served and a $250.00 fine.

The case was appealed to the Fifth Circuit of Appeals which affirmed the conviction and the Supreme Court granted cert on December 15, 1969.

Warren E. Burger:

Has he served his present sentence?

David H. Berg:

No sir, he has not.

Warren E. Burger:

He hasn't served any part of it, this --

David H. Berg:

Well, in avertedly, he did.

The petition was filed out of time.

He was committed for three weeks.

We lodged a motion for leave to submit out of time which was granted.

He was released from prison.

It is our contention that Daniel Schacht engaged in symbolic speech by wearing parts of a military uniform during the skit.

We feel that the Court's first inquiry must be made on the basis of the holding of the O'Brien decision that Draft Card Burning case.

That case held if we understand it correctly that there are certain areas of freedom of speech which the government may impinge upon if there's a clear and compelling interest of the government to be protected by the regulation that it seeks to enforce.

It is our contention in this case that there is no compelling governmental interest in regulating the wearing of distinctive parts or parts similar to distinctive parts of an Armed Forces uniform.

Warren E. Burger:

I notice counsel that you describe this in your factual statement as a demonstration in front of the recruiting headquarters or some such thing.

You do not make a claim that this is a theatrical production?

David H. Berg:

Your Honor, we do make that claim.

We make the claim that he's entitled to a submission on the question.