Schacht v. United States

PETITIONER:Schacht
RESPONDENT:United States
LOCATION:Manhattan Municipal Building

DOCKET NO.: 628
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

Question

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.

David H. Berg:

I didn’t characterize it entirely.

It was a skit rehearsed a day before.

Warren E. Burger:

Well then — then you’re describing this is a demonstration, was not intended to preclude your claim in —

David H. Berg:

No.

Warren E. Burger:

— your brief that I wondered if you were changing your position?

David H. Berg:

As it where a play within a play, within a demonstration.

Potter Stewart:

Well, I think if you’re right about that, you don’t need to be (Inaudible).

David H. Berg:

Yes Your Honor, we still reach a constitutional question.

Potter Stewart:

The trial judge instructed on the matter, —

David H. Berg:

Yes.

–that he told the jury that if they file it, it was —within the statutory exception, they should acquit him?

And that — and incidentally that charge were submitted by the government’s attorney.

Potter Stewart:

Yes, so you did get the benefit of that instruction, did you?

David H. Berg:

Yes, we did, at the trial—

Potter Stewart:

Rightly or wrongly?

David H. Berg:

Yes sir.

Potter Stewart:

You say rightly, the government says wrongly although you’re not telling us that it was at the government requests?

David H. Berg:

That’s correct.

Potter Stewart:

Well, I still, I’m sorry.

I still don’t follow you.

If you’re right on the — that you’re not with — that you’re within the exception under the statute then I don’t understand you, why would it be a constitutional question?

David H. Berg:

Because the statutory scheme graded by the exception itself is unconstitutional.

We feel that the government — by that I mean that the constitutional scheme is one which punishes one —

Potter Stewart:

Yes, but if this is a prosecution that is for violating a statute?

David H. Berg:

Yes.

Potter Stewart:

And it’s a statute which says it can’t be any prosecution if you fall within an exception, is that right?

David H. Berg:

Yes sir.

Potter Stewart:

And if you fall within the exception, why isn’t that the end of the case, you couldn’t be prosecuted, you couldn’t be convicted?

David H. Berg:

Well, in this instance, he was granted the — he was given a submission on that issue.

The jury nonetheless found him guilty and we say that the entire statute is unconstitutional.

Potter Stewart:

Well, so you’re up against a jury finding that that you’re not within the exception?

David H. Berg:

No sir that we can’t tell from the case either.

Warren E. Burger:

After this, you had a general verdict and you can’t of identify the jury —

David H. Berg:

That’s correct, under the holding of a straight case.

We don’t know why this man was convicted.

We don’t know whether he was in a play or he was in a play that discredited it?

Warren E. Burger:

Yeah, well, —

David H. Berg:

Someone wearing distinctive parts and if that be the case then that part — we feel that part of the exception is clearly is unconstitutional.

Potter Stewart:

Well, I gather the facts are not in dispute, are they?

David H. Berg:

No sir, for the most part–

Potter Stewart:

Well, I suppose — suppose we were to feel that on the basis of the facts there was no issue for the jury?

Of the investigation?

David H. Berg:

If there is no issue for the jury on the basis of the fact–

Potter Stewart:

That should fall within the exception?

David H. Berg:

— as with the exception.

Potter Stewart:

Yeah.

David H. Berg:

Then we still have to deal with whether or not there’s a compelling interest.

Potter Stewart:

You’re awfully anxious to get a constitutionalist, you’re not at this, aren’t you?

David H. Berg:

Yes sir.

Potter Stewart:

You’re not as concerned to get your fellow off?

David H. Berg:

Yes.

We feel that a constitutional decision would–

Potter Stewart:

I get it nice, but if we can decide that it has come within the exception, that’s the end of the case, isn’t it if your man is off?

David H. Berg:

Your Honor, if the facts of the case clearly indicate that he fell within the exception, we have no way of knowing still whether or not that exception —

Potter Stewart:

I know but if that says it should’ve gone to the jury and that the conviction therefore —

David H. Berg:

It did go to the jury.

Potter Stewart:

— should be set aside, that’s the end of the case, isn’t it?

David H. Berg:

Unless I misunderstand sir, it did go to the jury?

Potter Stewart:

Alright.

David H. Berg:

Under the holding of the O’Brien decision, it’s our contention whether or not he’s entitled to an instruction on the statutory — the exception to the main statute.

David H. Berg:

The government has exhibited no compelling interest in controlling whether or not one may wear distinctive parts of Armed Forces uniform or part similar to distinctive parts.

Potter Stewart:

When — sorry to interrupt you again Mr. Berg but when you told that my brother Brennan that there was no substantial dispute as to the facts in this case, does that mean that you do concede that your client was wearing the uniform or a distinctive part thereof of any of the Armed Forces of the United States?

David H. Berg:

Mr. Justice Stewart I would concede only that he had on parts of a military uniform but not characterize it, it was distinctive.

Potter Stewart:

Well, it has to be, that either as I read it, it has to be the uniform which I suppose would mean the complete uniform or a distinctive part thereof, isn’t that what the statute said?

David H. Berg:

Yes, yes sir.

Potter Stewart:

And as — do you or don’t you concede that the —

David H. Berg:

Well, one of the questions we raised sir is that we don’t know what word distinctive part means and we don’t know whether —

Potter Stewart:

Well, I suppose khaki colored socks for instance would not be a distinctive part of the army uniform, although soldiers do wear khaki colored socks.

David H. Berg:

Yes sir.

Potter Stewart:

Or a handkerchief —

David H. Berg:

Yes.

Potter Stewart:

— or maybe under — an under short or underwear, I would know but tan shoes.

David H. Berg:

It doesn’t to — excuse me sir, it doesn’t really matter to us if we want to characterize it as having worn a distinctive part, our point we feel is still the same.

That the —

Potter Stewart:

Well, I’m not sure — I’m not sure that I understand you because — and I’m not sure whether — that I understand whether you do or whether you don’t concede that the dress, the garment in which the petitioner was dressed at this time was within the statutory definition?

David H. Berg:

Well, if I understand the question correctly, the question is whether or not the fact is in dispute that he was wearing a distinctive part of the uniform.

Potter Stewart:

The uniform or a distinctive part of there.

That’s what the statute says and if he wasn’t of course he wasn’t covered by the statute at all.

David H. Berg:

Alright, and it’s our contention that that’s one of the problems of the statute.

We have no way of telling sir whether or not he was wearing a distinctive part.

If he wasn’t then he’s not guilty to begin with.

If he was, then we still have problems with the statute.

Potter Stewart:

Well, the jury must have found that he was?

David H. Berg:

Yes.

Potter Stewart:

They certainly didn’t find he was wearing a complete uniform, did they?

David H. Berg:

Your Honor, from the verdict that was returned, we can only assume that–

Potter Stewart:

But there wasn’t any evidence at all or whatsoever that he was wearing an entire uniform?

David H. Berg:

No.

But we don’t know that they didn’t convict him on these grounds that he was wearing a similar part, a part similar to a distinctive part.

Potter Stewart:

Or a distinctive — well they at least found that he was wearing a distinctive part?

David H. Berg:

Yes.

That at least that the jury —

Potter Stewart:

In order to convict?

David H. Berg:

Pardon me sir.

Potter Stewart:

In order to convict, does that defines that?

David H. Berg:

Yes sir.

That would be prerequisite finding.

Hugo L. Black:

What did the evidence show he was wearing?

David H. Berg:

An eagle insignia turned upside down.

Hugo L. Black:

He what?

David H. Berg:

An eagle insignia turned upside down on an obsolete World War II hat.

A blouse and some bottoms and a green —

Hugo L. Black:

What kind of blouse?

David H. Berg:

An army blouse.

Hugo L. Black:

Yeah.

David H. Berg:

Buttons on the blouse?

William J. Brennan, Jr.:

What kind of buttons?

David H. Berg:

Military buttons on the blouse and the cap he uses I remember were not military issue and some civilian boots.

Potter Stewart:

And the eagle — you said an eagle turned upside down.

That’s the insignia —

David H. Berg:

Spread eagle.

Potter Stewart:

— that’s not only out of commissioned officer’s cap in the United State army?

David H. Berg:

The spread eagle.

Potter Stewart:

Is that — is that company?

David H. Berg:

Yes sir.

The government would seek to tell us to justify the imposition or the impingement of Daniel Schachts.

First Amendment rights, the right to where this parts of the uniform on the basis that government has some sort of overwhelming interest in regulating this wearing.

It’s our contention from the facts of the trial that the government in fact sells the jobbers all over the nation, the parts of the uniform which later end up in the hands of the people who wear it.

This Court might take note of the fact that the army jacket is worn by many people, the army raincoat.

Parts that look similar, two parts of an army uniform are widespread worn by young people especially by young people.

David H. Berg:

And if the interest in regulating this wearing was so overwhelming, then it would appear to us that the government would not sell on a wholesale basis to jobbers across the nation.

If there is a government interest in the distinctive wearing, they simply have it sought to it to assert that interest.

We have been unable to find very many cases under the statutes where convictions at least have occurred under 18702.

In fact, four since 1940 and I believe the statute in one form or another has been in the book since 1960.

Of course —

Warren E. Burger:

What should we draw from that, that the government has been negligent in enforcing this statute or just what’s your point?

David H. Berg:

Our point, my point that there’s some evidence the government is not interested enforcing the statute.

Warren E. Burger:

Well, what should the Court do about that when it gets a case where they are interested in enforcing it?

David H. Berg:

In this particular case, we feel it’s evidence of the government’s lack of a compelling interest in impinging his First Amendment, in regulating the wear and therefore impinging his rights, constitutional rights.

Potter Stewart:

Is there — I suppose there is and would you know if there is other federal legislation on making it a criminal offense to impersonate an officer or an enlisted man in the army?

I’m not very —

David H. Berg:

Yes sir, I believe that there is a statute.

Potter Stewart:

There is.

David H. Berg:

About the impersonation, is there, and that would be our point that this type — this kind of protection could be garnered for the government and more narrow stand.

Potter Stewart:

And you say there is such a narrow — more narrowly drawn stand?

David H. Berg:

I believe that there is a penalty for personating an officer that applies to civilian just for making a meal ticket of the uniform one way or another.

I raise briefly the question of the vagueness of the statute.

We feel that if the Court should find that there is some compelling interest in regulating the wearing of the distinctive parts of the uniform, that there is still a question under the statute, 18702 as to what authority — authorized means under the statute to whom does one turn for authority and concomitant questions of what exactly — what authority — under what conditions authority will be granted.

We don’t know what similar two distinctive parts mean.

It’s hard to tell that would apply to a woman wearing a khaki dress with epaulets on it and is this current fashionable.

At the trial, Danny sought to rely on 10 U.S.C 772 at the exception to statute in the Maine.

The government says that he was not entitled to a submission on this issue and we say that he was.

We say that even if we accept the government — the government’s definition of what a theatrical production is, he may still be entitled to the submission of the issue that the trial judge, the United States District Attorney and the Fifth Circuit, Court of Appeal saw no problem with the submission of this issue.

At the very minimum, we feel the issue was raised by the facts of the trial.

Potter Stewart:

Is there any indication in the record as to where he acquired this clothing?

David H. Berg:

No sir, there is none.

Warren E. Burger:

Going back to your point for a moment to — about the compelling interest, I don’t recall many events on but I don’t recall in the last 14 years any frequency of prosecutions for impersonating a federal agent.

Would you draw from that that the federal government has lost its interest in prosecuting people from — for impersonating federal agents or perhaps would another reasonable inference be that not very many people have been doing it?

David H. Berg:

Yes of course that inference could be drawn, but we say that that doesn’t preclude us from the other inference that the government simply has — because of the widespread wearing of the parts of the uniform, the government has lost its interest in enforcing the statute.

Warren E. Burger:

What evidence you have in this record of widespread use?

David H. Berg:

Your Honor, we have the evidence that it’s sold on a wholesale basis throughout the nation to whomever walks in the store and we ask the Court to take judicial notice.

Warren E. Burger:

With the military insignia and buttons on it?

David H. Berg:

Yes Your Honor, there’s nothing to controvert —

Warren E. Burger:

Or removed?

David H. Berg:

Pardon me sir.

Warren E. Burger:

Or are they removed before the sale?

David H. Berg:

There’s nothing in the evidence to indicate which way, but we feel that’s not — that that wouldn’t be a question in the case because one could still fall within the proscription of the statute by wearing parts — that are distinctive parts of the uniform.

This is of course, the first time — the point I was — I had raised before as to the constitutionality of — or I was — I would like to raise the question, the constitutionality of the statute under which the defendant was forced to defend.

If it can be agreed that he was entitled at least to a submission to the jury on the issue, then we must deal with the exception which says that one may wear distinctive parts in a play so long as that portrayal does not tend to discredit the armed force portray.

We feel that the words tend to discredit are unconstitutional at least on two and possibly three grounds.

One, there is a grant of power, a privilege to act in a play under the statute.

And then it’s unconstitutionally conditioned on the substance of what’s in the play.

We feel secondly that the play itself — that one engaged in criticism of the government, is constitutionally protected and thus the effect, the net effect of this portion of the statute, of the exception of the statute is to Schacht’s First Amendment freedom.

One really doesn’t know exactly what he can say or what he can do under the prescription of the exception.

Finally, of course we don’t understand exactly what the words tend to discredit mean anyway.

Tend to discredit is possibly as vague as words could be — when words are being prohibited.

We are left then if we can accept the unconstitutional, the exception to the exception of being unconstitutional.

We are left simply with 18 U.S.C 702 and as an exception which says one may wear these parts in a play, and what does this leave us with.

We are left with the question of what theatrical, a motion picture production actually means.

And the only way to purchase certainty in this area is to go ahead and appear in what you think is a motion picture, a theatrical production and see if you’re brought the trial if you’re wearing a symbolic — if you’re wearing as in Danny’s case parts of an Armed Forces uniform.

The vagueness contained therein is offensive to the Fifth and First Amendment, the Schacht’s First Amendment rights and what it actually does is grant a license to whomever is in charge of bringing — of bringing charges, it give a license to them, an official of the government to bring charges in cases where he doesn’t agree with what is being said in a play or if – and he can use the vagueness of the word production to justify the imposition of this charge.

We judged briefly before on considerations of the verdict itself, the general verdict.

And the first consideration is whether or not we can tell under the exception itself, if we can agree that the exception should have been submitted why petitioner was convicted.

He was either convicted because first, he was wearing parts of the uniform.

And secondly, because he was either in a play that discredited in which case we feel he should have been acquitted or he was not in a play at all in which case we feel the holding of the street case would at least compel a reversal on this man.

Potter Stewart:

Mr. Berg, do you know anything of the legislative history of the statute of this legislation?

David H. Berg:

Your Honor, it was enacted in 1916 with — and we were unable to obtain any of the history at that time.

Potter Stewart:

During World War I.

David H. Berg:

Yes sir.

It was revised in 1940 and then in 1956, 1940 of course again during —

Potter Stewart:

Any history relevant that you could find —

David H. Berg:

The only history that I’ve seen was in testimony that was introduced by the government in its brief which said that there was no intention to subsequently change the law.

If this Court were to find that the statute is constitutional on its face that petitioner Schacht was in fact — and that petitioner Schacht was in fact not entitled to a submission on the issue that it was applied on the basis of the constitutional law by the virtue of the acts that he performed.

We still say that the application of this law to Schacht denied him certain fundamental freedom of speech.

There is evidence, a widespread wearing of the uniform.

There is evidence and we asked the Court to again to take judicial notice that after he’s constantly, not only discredit but ridiculed the armed force that they seek to portray.

Dr. Strangelove is a good example of that.

We again point to the fact of lack of prosecution of under the statute that the fact that Danny Schacht was strangely taking part in a protest against the war in Vietnam when the law was suddenly applied to him.

We ask the Court to read the record and check the vindictiveness of the United States District attorney’s closing argument.

— Or the defendant was entitled to that offense then we would take it and run, be very happy with it.

The point that I wanted to make was that our defendant at the trial admitted that he intended to discredit the uniform he was wearing.

Byron R. White:

Did you know what he was wearing?

David H. Berg:

Well he — that of course — with that of course is the point is to whether he was entitled to a submission, but at least he admitted that point and I was — in my point that we — I would ask this Court to find that that part was unconstitutional.

If in fact the Court does find that the words tend to discredit are unconstitutional, again, we are left with Title 18 which grants an exception in instances of plays in which one is wearing distinctive parts of the uniform.

There are pages and pages in the transcript which exemplify the prosecuting attorney, the defense lawyer and the judges’ confusion over exactly what production means.

Nobody knows exactly what it means within the framework of the statute and they finally decide on the Webster dictionary definition.

Of course, if there — if this kind of confusion exists for lawyers and for the judge at the trial, think of the kind of burden that imposes on anyone trying to make a good faith effort to ascertain under the statute whether or not he’s going to be in a motion picture or theatrical production.

We say the statute fails for this reason.

This presents a chilling affect on First Amendment rights.

One must step back and just fail to exercise the right to free speech, to act in a play because you don’t know whether or not you’re accepted under the statute.

But more importantly to us, it presents an opportunity to any government official who has the opportunity to bring charges under the statute based on what he feels is a violation of the act and in cases where he doesn’t feel that the production can be proved by the defendant.

What this means to us is that defendant Schacht was tried under statute that’s seldom used.

Although there is widespread disuse of — although there is widespread wearing of distinctive parts of the uniform, of parts similar to distinctive parts of the uniform.

He wore it in a part of the country in which dissent is not very popular.

We feel that the law was unconstitutionally applied to him for the sole purpose of punishing his participation in the act, any Vietnam War skit.

There are record references which support this contention, very short.

The defense attorney 209 — the prosecuting attorney at 209 says, if the Court please, in our original charge we found with the Court, we did provide a separate charge.

We feel that the defendants were entitled to a charge with respect to the defense and if I may present this to the Court now.

The — Mr. 2406, the defense attorney says, “Excuse me, you have the word betrayal.

We are getting kind of bad aren’t we instead of portrayal.”

David H. Berg:

Mr. K, the prosecuting attorney says, “Excuse me, we have betrayal.”

The Court — some people might view it as a betrayal.

What about the definition of those terms?

In the closing argument at 382, Mr. Hartman for the US government in indicating the view point, indicating the view point of this office about this sort of thing that Danny engaged in.

If it pleases the Court ladies and gentlemen, the only thing I gather with the argument of these defendants, they are displeased with the government and the war, but I have a single answer to that.

There’s a plane and a boat leaving, two or three times a day for other parts of the world.

I could probably name you gentlemen the place to go.

You can leave anytime if you don’t like and then you stop.

At 384 he says, if he referring to the defendants, comes to my house and expresses himself like this, he will not be able to walk into this Court room and be tried again.

And I say to you, there are many others likely.

I don’t to rub shoulders with these two, do you?

We say that this is clear evidence that what we have here is not a case involving simply the wearing of distinctive parts of the uniform.

This case involves suppression of my client’s right of free speech.

Potter Stewart:

Now you — the words you’re according where spoken by whom and when?

David H. Berg:

The prosecuting attorney in the closing argument.

Potter Stewart:

At the closing argument that you —

David H. Berg:

And prior to that the — one of the prosecuting attorney since submitting the charge.

It indicates to us the attitude toward what Danny did, to what he said in that at least in the Southern District of Texas.

In conclusion, we would say, having addressed ourselves we believe to the legal questions involved in this case that there is a question of social concern here.

We feel that the imposition of this sentence on Danny Schacht represents a certain breech of faith with young people attempting to protest certain things they feel that are wrong, certain things they feel must be rectified.

This Court has a perfect opportunity to rectify that situation and to correct a breach of faith that was promulgated not on the fact that Danny Schacht was wearing parts of the uniform, but on the fact that Danny Schacht dare to engage in a dissent gainst the war in Vietnam.

William J. Brennan, Jr.:

Was there any violence in connection with this —

David H. Berg:

None whatsoever sir.

William J. Brennan, Jr.:

— episode?

David H. Berg:

No sir.

William J. Brennan, Jr.:

Threats, shouting anyone?

David H. Berg:

No sir.

There is no contention anywhere in the record that there was anything but a peaceful and orderly demonstration.

Potter Stewart:

Mr. Berg with the respect to the jurisdictional question?

David H. Berg:

Yes.

Potter Stewart:

Are you going to rest on your brief?

David H. Berg:

I would address myself to that point just briefly Your Honor.

We feel that the jurisdictional question as we understand it raised by the government is answered and the delegation of power to this Court was unrestricted.

No restriction placed on it, was placed on it by itself.

The Court in effect has said, we’ll place a restriction of 30 days, and the power to make that rule being unrestricted, we feel that the Court has a right to abrogate that rule.

Further, there’s another contention — I hope, I’m understanding it correctly, there’s another contention in the petition — in the government’s brief that in the cases where this Court has waived the rule and I think specifically the Hulson case, the government didn’t submit a brief and therefore it’s not bound by its holding.

As we understand this contention, we feel that you’ve failed, it’s unsound and that it’s the business of the Court to raise the question of jurisdiction itself and having considered that point made its ruling, we don’t see any difference whether the full submission was made by the government or not?

Potter Stewart:

And you don’t see any difference between delay of under 90 days and one over 90 days with respect to jurisdiction?

David H. Berg:

We will rest our brief.

Potter Stewart:

That is a distinction made by the government as you know?

David H. Berg:

As I understood the distinction by the government, it was that there were statutes which prohibit a granting of the cert after 90 days.

Potter Stewart:

But that’s the outside limit of any statutory length of times —

David H. Berg:

Yes, it will —

Potter Stewart:

–the government submits and as the power of the Court is only to shorten that time within that 90 days?

That’s their submission roughly as I understood.

Hugo L. Black:

Does the record show why this delay occurred?

David H. Berg:

Yes it does Your Honor.

There was a submission — we submitted of course the motion for leave to file out of time and along with it a transcript of a short hearing to ascertain exactly why the brief wasn’t followed on time.

And I can tell you some of the testimony that was induced at that time was that the —

Hugo L. Black:

That’s all right, it’s in the record?

David H. Berg:

Yes sir.

The point of that hearing, that small hearing was that the defendant and his attorney at the time, an ACOU lawyer just had apparently write down a communication — the ACOU lawyer simply left the time go by without obtaining the money for filing of the transcript.

Warren E. Burger:

In other words the essence of it is that was negligence of counsel is that what you’re suggesting?

David H. Berg:

Yes sir.

Warren E. Burger:

Very well.

David H. Berg:

Thank you.

Warren E. Burger:

Mr. Solicitor General.

Erwin N. Griswold:

May it please that Court.

I will direct myself first to the jurisdictional question which has been raised in the government’s brief.

When I first came to my present office some time ago, I was rather surprised to find occasional briefs coming across my desk in which it said the petition was filed out of time.

Erwin N. Griswold:

Nevertheless, there is no reason for granting certiorari and then going on to argue the question of certiorari.

I raised the question with my associates and they said, “Oh, it’s not jurisdictional.”

And I was puzzled by that, but there are lots of things that I find puzzling and don’t always find answers to.

And I went along and noticed those cases continuing until this case came when the Court granted certiorari 131 days after the judgment of the Court below and I couldn’t see any reason why if they could grant it a 131 days, it couldn’t be granted at 1131 days or at anytime and I asked my associate Mr. Connelly to look into it and we dug into it rather thoroughly and I will endeavor to summarize here what we found in looking into it.

Of course there was originally the basic statute of 1925 which provided a period of three months for certiorari with respect to all types of judgments with a power in the Court to or a justice at the Court to extend that for 60 days on an application made within the three months period.

And then in 1933, Congress authorized the Court by a statute which says that the Court shall have the power to prescribe and I think prescribe has some significance.

From time to time, rules of practice and I think rules has some significance and by an amendment made in 1934, it was provided that the rules made as here in authorized may prescribe the times for and manner of taking appeals and applying for writs of certiorari.

And the committee reports at that time read in a way which sounds contemporary.

Existing rules of the United States, District Courts and Circuit Court of Appeals tend themselves to delay.

Many cases and all pending in the Federal Courts for months and even years have elapsed since the verdict of guilty.

And the cases have not been finally disposed of in the United States, Circuit Courts of Appeals and the accused have been at large on bail.

Nothing tends more to discredit the administration of criminal justice than such delays.

There was an article by Professor Orfield who had been a member of the advisory committee on the criminal rules which referred to the time limits in rule 11, which was adopted in Roman XI in 1934 and which fixed a single period of 30 days referred to that as jurisdictional.

And then the next thing that happened was that rather to my surprise and due to the very careful work of Mr. Connelly, we find that the very question was decided by the Court in United States ex rel. Coy against the United States 316 U. S 342 where a petition for certiorari was filed more than 30 days after the judgment, and the Court said on page 344, the petition for certiorari was filed too late and we are without jurisdiction.

Potter Stewart:

Is that case in your brief?

Erwin N. Griswold:

Oh yes, this case is the —

Potter Stewart:

Main one —

Erwin N. Griswold:

Is the essence of our brief Mr. Justice.

Potter Stewart:

I’m just looking at the index of your brief and I have read some —

Erwin N. Griswold:

Well it’s under United States ex rel. Coy I believe in the —

Potter Stewart:

Well, what’s in it?

Erwin N. Griswold:

In the —

Potter Stewart:

Cite about the 3447

Erwin N. Griswold:

Well, I’m sorry Mr. Justice, it’s under Coy, it’s cited on pages 14 and 17 of —

Potter Stewart:

Thank you.

Erwin N. Griswold:

— our brief.

Potter Stewart:

Yes, right.

Erwin N. Griswold:

And the Court also referred in the Coy opinion saying “Since the purpose in adopting the rules was to expedite criminal appeals and it seems rather odd that the nod effect in this case has been a very substantial delay over the time that would have been involved where the rules not in force.

Now, since 1934 when rule 11 was first adopted, the rules have gone through various changes.

In 1946, the language was changed from shall to may and someone might think that “Well, that’s just permissive and that means it isn’t really binding” it says beginning in 1946, it said “Maybe made within 30 days”.

Erwin N. Griswold:

Another change was made in 1946 which was to grant authority to a Justice of the Court to extend the time not exceeding 30 days.

If the application was made “Within the 30 day period following judgment” and the advisory committee at that time in its notes said “This rule continues existing law, except that it grants to the Supreme Court or a Justice thereof the authority to extend the time.”

And of course, the existing law included not only the text to the rule but also this Court’s decision in the Coy case.

And at other places in the notes to the preliminary draft of the rules of 1946, of the Coy case is cited so that it was not overlooked and this Court several times in per curiam decisions, denying petition cited the Coy case.

The next case we have is United States against Smith.

Smith being a District Judge, there haven’t been an application for Mandamus against him which the Court of Appeals had refused and this was certiorari to this Court to review the Court of Appeals refusal.

Judge Smith had granted a new trial long after the five days, put in the rule, he tempted to justify it on the grounds that he had done it sue sponte, that the rule simply said that application must be made within 5 days but it said nothing about what the judge did himself.

But this Court reversed the Court of Appeals.

I may point out too that this rule with respect to appeal also contain the may language which was introduced in 1946 both with respect to appeals and with respect to certiorari.

Potter Stewart:

For some reason Mr. Solicitor General, I’m having difficulty again in the index to your brief I can’t find United States against Smith under either United States or Smith.

Erwin N. Griswold:

Well, then the index is —

Potter Stewart:

But for the time —

Erwin N. Griswold:

— is sadly deficient and indeed Mr. Justice, it may not be in the brief.

It maybe results to some of my subject with continued research.

Potter Stewart:

Could you let me have citation of that?

Erwin N. Griswold:

It is 331 U. S 469 and it is a very relevant opinion by Mr. Justice Jackson.

Potter Stewart:

331-469?

Erwin N. Griswold:

331-469.

Potter Stewart:

Thank you.

Erwin N. Griswold:

The Court held that mandamus should have been granted to require the district judge to revoke its order granting a new trial.

And there’s very interesting language in the opinion and relevant language and I quote “The rules in abolishing the term rule did not substitute indefiniteness, the policy of the rules was not to extend power indefinitely but to confine it within constant time limits” and otherwise said Mr. Justice Jackson in a phrase what seems to me to be very relevant here.

Otherwise, the power lingers on indefinitely and that is what we are currently confronted with, with the situation as it now stands.

Now, in 1954, the relevant rules were transferred to the rules of this Court.

On rule 22, paragraph 2 and that’s where they are now.

But I suggest that the power to prescribe them is not derived from some inherent judicial power of this Court to manage its own business.

But is still derived from the Acts of 1933 and 1934 or since things have since been codified, it is not actually 18 United States code Section 3772 which carries forward in virtually identical language, the provisions of the Acts of 1933 and ’34.

Hugo L. Black:

Mr. Solicitor General may I ask you a question.

You are saying in this case which is 129 days overtime that is jurisdictional — I supposed it had been one day over the time.

Erwin N. Griswold:

Mr. Justice I would say under my argument that it would be exactly the same.

Hugo L. Black:

That’s what I thought.

Erwin N. Griswold:

But under the rule the Court has no jurisdiction after the time or the time as extended by an application made within time not to exceed 30 days has expired, thus the course would be entirely without prejudice to the Court by an exercise of the rule making power to provide as it has and in rule 4A of the appellate rules the Court, the rules of appellate procedure, the Court has provided that upon showing of excusable neglect the District Court may extend the time for filing the notice of appeal by any party for a period not to exceed 30 days from the expiration of the time otherwise prescribed by the subdivision.

And I would say, I don’t want to pass upon it now because there maybe arguments in various way but would seem to me to be entirely appropriate for the Court to provide by rule with a fixed time limit for an extension of time even though it is not sought within the time.

It is the unlimited open —

Hugo L. Black:

Did the government with you Mr. Solicitor General, look at the cases to see how many times this Court had accepted jurisdiction when it was over the time limit?

Erwin N. Griswold:

Well Mr. Justice, Stern and Gresham have some reference to this and I gather that there 10 to 12 or 15 and I will come to those after a while.

Some state criminal appeals, some federal ones, indeed I’m putting this case called Robison against United States in 390 U. S, I confessed error in the case in which the petition was filed one or two days late.

I may say at that time I was aware of it but one or two days didn’t upset me but a 131 days, I found a rather large order and I did find the Coy case which seems to me to have decided the question and my suggestion is that in these other cases the Court has slipped or fallen or drifted or lapsed into it an error without ever having focused on the relevant materials which I am trying to present to the Court now.

William J. Brennan, Jr.:

Maybe we could have — maybe we did it with design?

Erwin N. Griswold:

Mr. Justice, I have suspected that, nevertheless, in one of the places where you Mr. Justice have referred to this which is in a dissent you wrote in the case called Hicks against the District of Columbia.

William J. Brennan, Jr.:

That’s probably a case which we shouldn’t have taken at all any way?

Erwin N. Griswold:

Also not cited in my brief which in 383 U. S.

You —

William J. Brennan, Jr.:

It’s easier to invoke those things in cases you don’t like I guess in the cases which you’re interested?

Erwin N. Griswold:

Well, in one of these cases where you have written an opinion, you referred to the fact that the Court has discretions for grant.

And I suggest that putting it on discretion is in effect a denial of the fact that the statutory power is to grant rules and is a recognition of the fact that this is not done pursuant to rule and is something which I think perhaps the Court might not have done if there had been an opportunity for full briefing and argument.

William J. Brennan, Jr.:

What’s that exactly?

Erwin N. Griswold:

Oh Mr. Justice, it’s in my notes here and I — it’s not a fix case.

William J. Brennan, Jr.:

What’s the line and you choose double that?

Erwin N. Griswold:

Coy.

Potter Stewart:

No, Robinson.

Erwin N. Griswold:

Robinson was 390 U. S.

Potter Stewart:

Mr. Solicitor General may I ask.

Am I correct that certiorari in civil cases is governed by an expressed statute.

Erwin N. Griswold:

Yes Mr. Justice.

Potter Stewart:

Which says that the petition in civil cases must be filed within 90 days of the judgment, isn’t it?

Erwin N. Griswold:

With an extension of 60 days.

Potter Stewart:

Yes, where as here we’re dealing with the criminal case where we have no comparable explicit statutes, do we?

Erwin N. Griswold:

No, Mr. Justice, what you have is a statute authorizing the Court to prescribe by rule, the time and I am suggesting that the practice which has grown up of doing this on an open ended basis does not comply with the statutorily authorization to prescribe by rule.

Potter Stewart:

Well, I suppose then in the criminal case under that authority we might prescribe six months even though its only 90 days on the basis of this.

Erwin N. Griswold:

Oh yes Mr. Justice, I suspect that you could prescribe two years if you —

Potter Stewart:

Yeah.

Erwin N. Griswold:

— thought that was appropriate I don’t advocate it but I would think that would come within the terms of the statutory authorization.

I would not think you could properly say maybe filed at any time.

Potter Stewart:

Now, did you suggest —

Erwin N. Griswold:

I don’t think that is prescribing by rules.

Potter Stewart:

Did you suggest over here that there are maybe 12 or 15 cases within — in which we have indeed extended?

Erwin N. Griswold:

Yes, Stern and Greshem missed them, a great many —

Potter Stewart:

But not as going to suggest I can — think I can count 12 or 15 cases in the less couple of weeks?

Erwin N. Griswold:

Not in which you granted review.

Potter Stewart:

Oh, in which we granted review.

Erwin N. Griswold:

Oh no, there’d been many more cases on that in which the applications have been filed late.

I’m more referring to —

Potter Stewart:

Which we have ignored it?

Erwin N. Griswold:

Somewhere between 12 and 20 would be my estimate of what —

Potter Stewart:

Where we granted it, is that it?

Erwin N. Griswold:

Where you have granted it and proceeded to hear the case.

Warren E. Burger:

Going back to this rule Mr. Solicitor General, once adopted, is it your position that has the same course as the statute in the civil cases?

Erwin N. Griswold:

Yes Mr. Justice, my position is thought the Court has the power to change the rule which it doesn’t have power to change the statute that is the rule making power is a continuing power.

That once the Court has adopted a rule that is a piece of delegated legislation, that is made pursuant to the authority granted by Congress and what is now found in 18 U. S C. 3772.

Warren E. Burger:

Well now, are you speaking of a rule making power where it’s unilateral or where it’s concurrence with commerce?

Erwin N. Griswold:

In this case it is unilateral.

In the case of proceeding after verdict, congress has given to the Court power to prescribe by rule the times for filing petition for certiorari.

Potter Stewart:

And the essence I gather them Mr. Solicitor General is then if we prescribe at the time period that has precisely the same effect as if it had been written into enabling law itself?

Erwin N. Griswold:

Yes Mr. Justice that would be — that would be my position.

I think that that was what was contemplated by Congress.

I think that’s what the words prescribe by rule mean.

That was clearly the understanding of the informed commentators at the time.

Professor Orfield, for example, referred to the fact that the rule is jurisdictional and that was the almost contemporaneous decision of this Court in the Coy case.

Now, I referred to the fact that the language has changed to may, it also changed to may with respect to appeals and this Court in the Robinson case in 361 U. S., it is cited in our brief and involved a late filing of a notice of appeal.

And the Court held that the may language there was compulsory that the appeal with the appellant Court got not jurisdiction when the appeal was filed more than five days late and it quoted with approval the language from United States against Smith, the phrase of — lingers on indefinitely.

Erwin N. Griswold:

And in concluding its opinion, it said something further which seems to me to be relevant here.

That powerful policy argument maybe made both for and against greater flexibility with respect to the time for taking of an appeal is indeed evident.

But that policy question involving as it does many witty and conflicting consideration must be resolved through the rule making process and not by judicial decision.

If by that process the Courts are ever given power to extend the time for the filing on a notice of appeal upon a finding of excusable neglect, it seems reasonable to think that some definite limitation upon the time within which they may do so would be prescribed.

So, it seems to me that the case is tolerably clear.

The purpose of the rules was to cut down delays to restrict the time.

Congress was not clear just how much would be workable and delegated the authority to cut down the time to the Court.

And then there’s the language of the statutory authorization or to prescribe by rule.

And then there’s the language of the rules themselves.

The rules provide that the petition should be filed within 30 days, they provide further that a justice may extend the time within 30 days.

And then there is a very interesting further provision in the rules of the Court.

Rule 34 says that whenever any justice of this Court is empowered by law to extend the time, an application seeking such extension must be presented to the Court within the period sought to be extended.

And there its must not may, it is specific.

And finally, there was the decision of this Court.

In the Coy case in 316 U. S. and in the Smith and Robinson cases.

Well now, what happened to upset this clear picture?

Nothing deliberate, I may point out that in the Coy case in the order granting certiorari, the Court expressly directed the attention of council to the question of the time limit involved and asked that that question be briefed and it was.

But at no time has the Court ever had briefing an argument in these cases in which certiorari has been granted after the time that this is filed.

Potter Stewart:

Mr. Solicitor General, may I ask if the time Coy was decided, did the predecessor of rule 22, read as rule 22 now reads?

Erwin N. Griswold:

Yes Mr. Justice, —

Potter Stewart:

Exactly —

Erwin N. Griswold:

— it’s the rule 11 of the 1934 rules.

Potter Stewart:

But the phrasing was the same?

Erwin N. Griswold:

It read exactly the same except for the change of shall to may to which I have already referred and to the fact that at the time Coy was decided, there was no part to extend the time.

Potter Stewart:

The reason I asked is that’s rather unusual wording, isn’t it?

It’s phrased not that a petition is out of time unless filed within 90 days but that a petition shall be deemed in time when filed within 90 days.

Erwin N. Griswold:

I think that’s essentially the language of the 1925 Act with respect to civil cases which they were simply carrying forward.

Now, —

Potter Stewart:

Just before you go on.

I think I misunderstood the least part of the argument in your brief because here in oral argument in response to a question for Mr. Justice Black you said that your argument, jurisdictional argument would be precisely the same.

Potter Stewart:

Now you — if this case were one day late rather than over 100 days late and I gathered from page 18 of your brief.

Well, I understand you make that as your basic argument.

I’d gather it from page 18 in your brief that you say even if you are mistaken about the one day, certainly, if the delay is more than 90 days which is the longest time allowed by the statute then clearly its jurisdictional, is it not?

Erwin N. Griswold:

Oh yes Mr. Justice, I recognized the one day argument is a hard one and if it’s too hard for the Court to accept I will fall back and say “Well, at least you got to have sometime limit on it” and the only feasible one is the old 90 day statutory one —

Potter Stewart:

Or three months.

Erwin N. Griswold:

–not the rules which were designed to expedite criminal appeals.

Potter Stewart:

Which is it?

90 days–

Why is that?

Erwin N. Griswold:

I think that — I think that logically I stand by my answer to Mr. Justice Black but the rules are jurisdictional.

They now provide for 30 days, plus as an extension of 30 days if by the expressed terms of the rules, the application is made within the 30 days.

And if that is the ground upon which I stand, if the Court won’t accept that ground.

I do say that certainly they should not be construed to leave a completely open ended.

Potter Stewart:

Beyond 90 days?

Erwin N. Griswold:

Beyond and if it isn’t completely open ended, where should it stop.

Well, it seems to me at the place where it was before the rules came in to the picture in which to be technical was three months rather than 90 days at that time.

Potter Stewart:

Or perhaps I misunderstood you then.

Well, I understood you to say to Mr. Justice Brennan that you thought it would be a defiance of the rule making body if the Courts had ruled fix two years?

Erwin N. Griswold:

It at least is within the — it is within the language of — to prescribe by rule and you would have to read into that while congress couldn’t have intended that the Court would enlarge the time or that congress was meaning was that the Court should shorten the time and that’s another case which we don’t have here and my guess is the Court isn’t going to prescribe a rule which fixes it in two years.

But what you said to Mr. Justice Stewart I would suppose you now say that it has been 90 days was the outside limit?

Erwin N. Griswold:

I would argue in an advisory committee working to assist this Court in the rule making process that the Court could not appropriately make a rule of more than 90 days.

Potter Stewart:

And you say the legislative history of the statute conferring role making power indicates that it was to enable the Court to expedite?

Erwin N. Griswold:

It enables the Court to expedite the decisions in criminal cases.

Potter Stewart:

That hasted it beyond 90 days and shorter?

Erwin N. Griswold:

And this Court has so recognized.

Potter Stewart:

Is there any indication that in the role of Congress, ever know of the errors from your standpoint which the Court had been quarrelling–

Erwin N. Griswold:

No Mr. Justice, when it was only a day or two here and there I was just puzzled but I didn’t think it’s was appropriate to report to Congress that the Court was violating its rules.

When this case came along we as I say dug into it and found quite a lot.

The Court fell into this error if my may put it that way in Heflin against the United States in 358 U. S.

Further question came up only in the most back handed way.

Erwin N. Griswold:

It was not dealt within the briefs of any of the parties and it is dealt within a footnote in the Courts opinion of the complete text of which is, the complete text of which is “Well because no jurisdictional statute is involved” that’s all.

Hugo L. Black:

Maybe that was thought to be enough.

Maybe it was thought that it didn’t deserve anymore length of it.

Erwin N. Griswold:

Well Mr. Justice, if so I apologize for the time of the Court I had taken that seems to me that if that was the over ruling of the Coy case, that the Coy case, the Coy case was entitled to be present at its own funeral.

And I don’t think that the Court — had nothing to indicate that the Court was aware of the Coy case at that time or that it would have dealt with it in such a completely summary fashion.

Byron R. White:

Were there dissents in the Coy case?

Erwin N. Griswold:

Well Mr. Justice, yes there were.

It’s terribly hard to tell just what had happened in the Coy case.

It’s a very intricate decision arising in criminal procedure in the District Court and the Court decided that the — what the District Court had done was wrong but the consequence of that was to make it a criminal appeal and since it was a criminal appeal, it was too late because it was filed more than — the petitioner filed more than 30 days and then the Court said in the footnote “But a majority of the Court feels that in order to avoid security because it was pointed out that they could go back in the District Court and start over again and raise the same question and since the point is not jurisdictional that they would hear the case.

Potter Stewart:

But then your premise, we’ve been violating our rules in other aspect namely, we have numerous applications where the application with extension is not filed within the time and those orders and outside many of them.

I thought there might be something to do with merits, application for extension granted subject to the approval of the full authority, we do it constantly?

Erwin N. Griswold:

Well Mr. Justice, my argument would extend to that.

It would seem to me that at least in civil cases that is completely unjustifiable and I can find no reason why it isn’t equally unjustifiable in terms of this Court’s own rules.

And now, with respect to all of these things, if the rules so construed are too inflexible, then I submit that the change should come through the rule making process and not in essence by an acquiescence.

And if there is a change made through the rule making process, it will almost certainly have an eventual time limit and also some statement of the grounds or considerations on which such an extension will be granted.

In some instances, which leaves this important matter wholly at large, not even good cause shown or excuse them on neglect as things now stand, cannot with true propriety be called a rule and it is only the power to prescribe rules which Congress has given to the Court in this area.

Incidentally Mr. Justice Douglas, I now come, it was the Taglianetti case in 394 U.S, this not one of your dissents, where again in a footnote and wholly conclusary, the Court said the time limit is not jurisdictional citing Heflin and does not bar our exercise of discretion to consider the case.

Hugo L. Black:

What’s the name of that case you saying?

Erwin N. Griswold:

Taglianetti, its 394 U.S. 316 and that is cited in our brief.

Byron R. White:

Mr. Solicitor General can I ask you, did I understand that Rule 11 under which Coy was decided, that wasn’t just the rules of practice of this Court but the Rule 11?

Erwin N. Griswold:

No, Mr. Justice–

Byron R. White:

That was part of the federal — the first edition of the federal rule was uneasy?

Erwin N. Griswold:

That was the rules of practice in criminal cases before verdict.

Byron R. White:

Right.

Erwin N. Griswold:

Which included because of a special provision in the statute, the authority of the Court to prescribe rules fixing the time for taking appeals and for filing petition for certiorari.

Byron R. White:

Well that — then that Rule 11 was adapted like the present federal rules of criminal procedure?

Erwin N. Griswold:

Yes, Mr. Justice.

Byron R. White:

And that was — was the Rule 11 part of the set of rules that was placed before the Congress?

Erwin N. Griswold:

No, Rule 11 was not.

Byron R. White:

That set of rule —

Erwin N. Griswold:

That whole set of rules is made under authority of the — granted by the Congress to the Court to make rules its own and that was not placed before a congress and that has been true all the way along.

Byron R. White:

But then that Rule 11 was taken out of the Rules of Criminal Procedure and placed in the rules of this Court in —

Erwin N. Griswold:

For a while it was in both places.

It was in the Rules of Criminal Procedure by way of a cross reference.

It was in Rule 37 of the Rules of Criminal Procedure until 1967 or 1968 when the Court abrogated Rule 37, and since that time it has been exclusively in the rules of this Court.

Byron R. White:

But it’s up until ‘67 it was also in the rules of Criminal Procedure?

Erwin N. Griswold:

By way of a cross reference Mr. Justice, Rule 37 (2).

Byron R. White:

And that rule had been placed certainly out by that time had placed before the Congress?

Erwin N. Griswold:

No Mr. Justice, those three captors of those rules —

Byron R. White:

I see, I see.

Erwin N. Griswold:

— were not laid before the Congress.

There was a complicated submission by which all of the rules except these three chapters were laid before Congress but these three chapters relating to appeals were prescribed by the Court effective on the same day as the rules laid before Congress became effective.

Byron R. White:

I see —

Thurgood Marshall:

Mr. Solicitor —

I see this footnote in Taglianetti is not my footnote alone.

Erwin N. Griswold:

No, Mr. Justice I apologize for that.

I’m not sure I even wrote this per curiam?

Erwin N. Griswold:

I was quite wrong.

It was the Hicks case.

Yeah.

Erwin N. Griswold:

— was the one in which you referred to Heflin —

Yeah.

Erwin N. Griswold:

— and said that it was not jurisdictional.

Taglianetti was a per curiam and I wouldn’t know who wrote it.

Thurgood Marshall:

Mr. Solicitor, I have great trouble with the usual statement which is usually taken for granted that a Court can usually ask discretion to waive its rules but never to raise — to waive a statute.

And in this case you say that we cannot waive the statute, civil.

And so now we can’t waive a rule.

Well, that does not apply to all of the rules, just this one?

Erwin N. Griswold:

No Mr. Justice, that only applies to rules which are made by the Court acting pursuant to a grant of authority given by a Congress to act in essentially a legislative manner.

Thurgood Marshall:

And that is restricted to this one rule?

Erwin N. Griswold:

That would be restricted to any rules made pursuant to the power originally granted in 1933-34 —

Thurgood Marshall:

Well, you see the problem —

Erwin N. Griswold:

— and now granted by Title 18 U.S. code Section 3772.

Thurgood Marshall:

And you don’t know whether it apply to any other rule?

You see my problem, you say we’ve been violating the law, I’m wondering we might be violating the law or some of the rules?

Erwin N. Griswold:

Well Mr. Justice I don’t think so.

Although insofar as it does deal with rules which have been laid before a Congress which includes the whole business of rules of civil procedure.

Thurgood Marshall:

Now, I’m talking about the rules of this Court where you just read from?

Erwin N. Griswold:

It would only be with respect to those rules of this Court which I made pursuant to a grant of power by Congress.

And I would not suggest that it would be claimed that this Court had power to fix the time for filing petition for certiorari or to take appeals simply out of its inherent power.

But that that part has never been thought to come to the Court except pursuant to the grant which Congress has made.

Hugo L. Black:

Under the grant of legislative power?

Erwin N. Griswold:

Yes, Mr. Justice, a grant of delegated legislation.

It’s a nice problem in separation of powers but is one that —

Byron R. White:

The practice of —

Erwin N. Griswold:

I’ve got over being puzzled by that one.

I used to be puzzled somewhat but I can accept that.

Potter Stewart:

It might be the power created by article 3 itself called the congressional power that is going to the jurisdiction of this Court?

Erwin N. Griswold:

Oh, yes Mr. Justice.

I would assume that it was.

This is a part of the power of Congress to make law as long since established that Congress can do that in certain cases and under proper conditions by delegating it to other governmental bodies and is most appropriate that this particular item should be delegated to this Court.

But what this Court does pursuant to that power is essentially legislative and our submission is that it should be so treated and perhaps most important of all that this Court so decided in the Coy case and has never since decided to the contrary with any indication of treatment of the issues in the problem or of the continuing validity of the Coy case itself.

Warren E. Burger:

Well, let me ask you this to pursue Justice Stewart’s questions.

You said you were somewhat puzzled by this possible conflict between the branches but if it arises out of Article Three which gives Congress the power to define the jurisdiction I believe and would not the power to define jurisdiction include all the incidental power to define how it’s to be executed?

How jurisdiction is to be implemented including fixing the number of days within which filing must be happening.

Potter Stewart:

Article Three itself and I’m reading from it, says the Supreme Court shall have appellate jurisdiction both as to law and fact with such exceptions and under such regulations as the Congress shall make.

Erwin N. Griswold:

And in this case, the regulation of the Congress has made has been to delegate this to the Court but I suggest that the Congress never contemplated that that was a simply open ended delegation whenever the Court thinks in its a good discretion that it would be a good idea to take the case than it shall which is near as I can see —

Hugo L. Black:

Mr. Solicitor General, as scripted in the vocabulary, recent with the idea of a restrictive interpretation of the constitution.

Do you think that is a restrictive interpretation of a constitution?

Erwin N. Griswold:

Oh, I don’t know Mr. Justice.

Erwin N. Griswold:

It depends on how you define restrictive.

I can define it in such a way that it is not.

I think —

Potter Stewart:

Strict, I think is the word strict constructions.

Erwin N. Griswold:

Even strict construction is I think believe in a certain measure of flexibility and that flexibility is one which we not only have been able to live with but which we have come to accept.

We find it more frequently of course in delegations to administrative bodies, but in this area it’s most appropriate that there be a delegation to the Court.

Warren E. Burger:

Going back to your earlier statements.

If we have power to waive —

Erwin N. Griswold:

I didn’t start the merits Mr. Chief Justice.

Warren E. Burger:

No, I’m not getting on the merits yet.

Erwin N. Griswold:

I know but —

Warren E. Burger:

I’m still on jurisdiction.

Your earlier statement on the question of time, if we can casually waive the late filing of a week, we can do it, you said for two years?

Erwin N. Griswold:

It seems to me that and what has been done in this case, the Court can if in its discretion whatever that means, it think it appropriate, it can grant a writ of certiorari to review any decision of the Court of Appeals made at anytime in the past which isn’t moot for some reasons or other.

And that I don’t think was contemplated by Congress and yet I think that’s what’s involved in this case.

I don’t think that that —

Warren E. Burger:

Because we have common law writs of certiorari under the — perhaps under the All Writs Statute?

Erwin N. Griswold:

Yes Mr. Justice.

And I don’t really know much about that–

Warren E. Burger:

And I don’t even —

Erwin N. Griswold:

I don’t remember what the time limit would be.

There are bills of review which people found when there had been corruption in the Courts and they upset judgments long after the event, and in equity, you can do a lot of remarkable things.

Professor Chafe, he taught me that long ago but I don’t — this particular writ of certiorari is a pretty — pretty technical term of art which I don’t think comes within those others.

Well now, with respect to the merits of the case.

The first is the constitutional validity of Title 18 Section 702 and it’s hard for me to see how there can be any doubt about this.

This is the provision which makes it a crime to for an unauthorized person to wear the uniform or any distinctive part there of it.

Incidentally, let me clear up one possible misconception which came from the petitioner’s argument.

He suggested that there might be a simulation of the uniform here but actually the indictment is simply that he did wear a distinctive part of the official uniform and the trial was conducted throughout on the basis that he wore a distinctive part of the uniform.

There is no basis for saying that it was something which simulated the uniform.

Warren E. Burger:

Mr. Solicitor General, we have sought a great deal of your time with jurisdictional problem.

Warren E. Burger:

We will extend your argument 10 minutes over the four remaining and accordingly accommodate your friend if he needs the time.

Erwin N. Griswold:

Thank you Mr. Chief Justice.

Now in that connection, I would call attention to page 45 and 46 of the Appendix where an Exhibit 12 was introduced in the trial, read to the jury, official army regulation and on page 46 about two inches down in quotation marks, the following uniforms and articles thereof for a male members of the United States Army are distinct.

Distinctive components of the uniforms are limited to caps, coats, jackets and trousers except as indicated.

So that the socks and the handkerchiefs are out, even shoes are out.

Potter Stewart:

You’re on, page 45 of the Appendix refers to Exhibit 12 but doesn’t contain Exhibit 12, but I suppose that’s in the original record?

Erwin N. Griswold:

Well, this is the quotation from Exhibit 12.

Exhibit 12 is the regulation and this is a quotation from Exhibit 12.

I don’t have Exhibit 12 in my hand —

Potter Stewart:

But it will be on the original —

Erwin N. Griswold:

Indeed I haven’t examined it.

I believe this to be a quotation from Exhibit 12 which it purports to be.

I would also point out that further down on the page that buttons are referred to and I would also call attention to the fact that on page 13 an FBI agent testified —

Hugo L. Black:

Page what?

Erwin N. Griswold:

Page 13 of the Appendix.

In response to the question, would you just describe the jacket he had on when you saw him?

A green jacket with a brass buttons of the type issued associated with military uniforms and you note that jackets are one of the things that are a distinctive part.

And then on page 20, a US Army colonel at page, down at the bottom of the page, on his head he had the fur filled army officer’s cap with the loose strap — with the strap loose and hanging down and with an army officer’s insignia upside down.

Reminds me of some skits, I’ve seen at the Veteran Club dinner, uniforms and so on?

Erwin N. Griswold:

That I believe by some stretch of the imagination Mr. Justice is a theatrical production.

We will argue here later that it is not — that this was not that — of course is given under circumstances and in a situation where everyone present knows that it is simulated.

And wasn’t given in Houston?

Erwin N. Griswold:

But given in Washington, which is close to the Pentagon and where other things have happened.

But there is no doubt that that is a simulation and here there was a considerable reason to doubt whether the person involved was or was not a member of the Armed Forces.

Now, the petitioner here, perhaps his oral argument belies this but as I read his brief, it seemed to me that he made no claim that he didn’t come within the terms of the statute that is that he was wearing a distinctive part of the uniform.

It seems to me to leave no question which was not in substance coved by this Court’s decision in United States against O’Brien, the case involving the burning of the draft card.

Surely, there is power in Congress to protect the integrity of the uniform of the Armed Forces of the United States.

This is a matter, which is of importance not only to the army but also to citizens.

We have to be able to rely on the fact when we see a policeman that he is a policeman.

And these times, we have to be able to rely on the fact when we see a man in military uniform that he is a member of the military.

Erwin N. Griswold:

The constitution expressly gives to Congress the power to raise and maintain armies and to do all things necessary and proper to carry that power into effect.

And surely –-

Thurgood Marshall:

Mr. Solicitor General, on disgrace to the army, does that apply to the dozens of (Inaudible) bungs we used to see everyday with army jackets on?

Erwin N. Griswold:

I think Mr. Justice, you will almost always find that the buttons have been removed.

That seems to be the convention in —

Thurgood Marshall:

No, I have seen plenty with buttons on.

I’ve seen them with jackets and overcoats and the fur hat.

Erwin N. Griswold:

Mr. Justice, if I can get to that case soon enough, maybe I could exercise some prosecutorial discretion with respect to that case.

This — that seems to me to be a situation where discretion might be appropriate.

In this case, where the prosecutor exercises the discretion otherwise and where two Courts below have sustained that, I found no effective way that I could proceed except by defending the actions which they have taken.

This Court in United States against Bernal, which involved a prosecution for impersonating an officer, a cognate question said that one of the purposes of such statute is to maintain the general good repute and dignity of the service itself.

And this is essentially an argument, which I made somewhat against the advise of some of my associates in the O’Brien case, where I contended that it was within the power of Congress under the necessary and proper clause in connection with the power given to raise and defend armies, to protect the dignity of the selective service process by making it a crime to burn draft cards.

I did that because I found it somewhat difficult myself to find that draft cards themselves were of very great importance in the process.

The Court took the latter ground in its opinion and thus the O’Brien case is not a decision on that point but I think that the decision reads is very close to the one which is involved here.

So our position would be that the criminal code provision is constitutional and that the defendant clearly came within it and was properly found by the jury to have come within it.

And so we come to the exemption in 10 U. S. Code 772 (f) and our contention is that the petitioner was not by any reasonable stretch of the interpretation of the words in that statute an actor in a theatrical or motion picture production.

Now obviously, it wasn’t motion picture so you can throw that out.

So you have to make him an actor in a theatrical production.

Now originally, this statute we spelled out the history of such as it is in our brief.

The statute prohibited any person from wearing the uniform in any playhouse or theater or in moving picture films.

And it was codified I think in 1954 and the sponsors emphasized that no substantive change was intended.

The objective was to make it plain that television performances would be covered, which might not come within playhouse or theatre.

But the intention of Congress is manifested in the original language and in the revision and that is that it is confined to situations where the make believe role of the person wearing the uniform is clear from the setting.

Thus, it seems to me that Dr. Strangelove or the (Inaudible) mutiny come within it because everybody knows that’s a simulation.

It doesn’t mean that a performance must be given in the building, could be an outdoor theatre, could be an area set aside for it.

It means only that the performance wherever given must preserve some of the traditional characteristics of dramatic presentation such as the defined area set apart for the actors and an audience surprised that the events which they observed are portrayed and not real.

The skit here was not a theatrical production in any reasonable meaning of that term.

It was an intermittent event in a demonstration in the street, in front of an induction station that also included picketing and distributing leaflets.

Pedestrians and motorists who either stopped or passed by the demonstrating could reasonably believe that the petitioner was in fact a soldier as his wearing of distinctive parts of the uniform was intended to convey.

The petitioner’s conduct here has all the elements of picketing and no real similarity to the theatrical production which Congress contemplated, and no one would suggest I believe that a person would be entitled without authority to wear the uniform of the army merely because he was picketing.

Erwin N. Griswold:

To seek to bring the petitioner’s action here within the statutory language is pressing that language to it’s dryly logical extreme or to use of another passage from homes of being led by technical definition to apply a certain name and then to deduce consequences which have no relation to the grounds on which the name was applied.

What you’re saying really on this interpretation that I gather is that the impression (Inaudible)

Erwin N. Griswold:

Yes, Mr. Justice and because of that, we — since we think that as a matter of law, that what he did does not come within the exemption in the statute.

But the qualification on that exemption about tending to discredit the Armed Forces is irrelevant.

This is a little like for example, the Lopez case which involved the defense of entrapment and the contention was made that the charge about entrapment was not quite right and the Court held where it wasn’t necessary to decide that because as a matter of law, there wasn’t any entrapment and he wasn’t entitled to any charge with respect to entrapment.

And we would contend here that the defendant was not entitled to any charge with respect to the defense of actor in a theatrical production and therefore the question of discredit becomes irrelevant.

I would be prepared myself to defend a discredit exception to the exception to the statute if it was necessary although I agree that it’s getting very close to the line but on grounds similar to those which were involved in the O’Brien case with respect to the draft cards.

An analogy is the copyright law.

After all the uniform is the uniform of the United States and the United States is entitled to have some control over the way in which it is used.

But as I have contended, the petitioner doesn’t come within the exception in any of the exemption in any event.

All that’s happened —

Hugo L. Black:

Was there any other evidence —

Erwin N. Griswold:

— here was that the petitioner received the benefit of the defense to which he was not entitled.

Hugo L. Black:

Was there any evidence in the record as to why he wore the uniform?

Warren E. Burger:

Does not his own statement suggest part of the answer to that?

That the petitioner’s own statement was that he was doing it to express his views on the war in Vietnam?

Erwin N. Griswold:

Oh, yes Mr. Chief Justice.

It was part of the demonstration.

There is no doubt about that and had he simply stood outside and made a speech against the war in Vietnam wearing the uniform, I cannot see any basis upon which the fact that he was making a speech would entitle him to exemption from the statute, which makes it a defense to wear the uniform of the United States without authority.

Hugo L. Black:

What did he say as to why he was doing it, in the record?

Do you remember?

Erwin N. Griswold:

The Court said, this is page 337 of the transcript, was the portrayal without reference to the fact you had on full uniform calculated to discredit the army or the Armed Forces.

The witness, I think the uniform showed disapproval and my intentions were to show my disapproval of the actions of the army.

There is evidence in the record I think, isn’t it that they rehearsed the skit?

Erwin N. Griswold:

Yes Mr. Justice.

There’s some evidence that they rehearsed this skit, if you can call it a skit.

Potter Stewart:

The demonstration or whatever it was, there would have been a meaning?

Erwin N. Griswold:

Yes, I think it’s reaching quite a bit to call it even a skit which isn’t —

Potter Stewart:

But it would have been completely meaningless and unintelligible if everybody had been in civilian clothes, wouldn’t it?

Erwin N. Griswold:

No, I don’t think so and they could have worn —

Potter Stewart:

If the petitioner had been in civilian clothes and if the — no problem —

Erwin N. Griswold:

They could have worn other types of uniforms.

You can get uniforms other than the uniform of the United States Army from theatrical supply houses if there had been some theatrics here they might have done something.

Hugo L. Black:

Well, the act is a kind of a theatrical performance even though they called it a protest, wasn’t it?

Erwin N. Griswold:

Mr. Justice I think not.

I think to be a theatrical performance you have to have something like a stage.

I don’t mean indoors, I don’t mean formal but you have to have some place where there are players and some place where there is an audience.

And this was in essence a demonstration not a theatrical performance.

Our position would be that as a matter of law this was not a theatrical performance.

Hugo L. Black:

But it is a strong.

Wasn’t it?

That would be a pretty stronghold against the law, wouldn’t it?

Erwin N. Griswold:

No, I don’t think so Mr. Justice.

Hugo L. Black:

What do you think?

Is the play a negative theatrical performance?

The Jitney players I suppose would come here, have you ever seen the Jitney players?

Erwin N. Griswold:

Oh, yes, yes.

Where you — what we have put in to our brief essentially is a separate place for the players and circumstances under which it is evident that it is a simulation and not actual effect.

Byron R. White:

Well, I suppose that it was clear that the episode was a simulation, nobody was deceived and the thing that someone was getting shot.

Erwin N. Griswold:

No, but whether the person was or was not a member of the Armed Forces.

Was —

Byron R. White:

That’s the importance that —

Erwin N. Griswold:

Was the important part of it and there was nothing here to indicate that he was not a member of the Armed Forces.

Byron R. White:

That’s right and there — whereas, there would be if there was in some play?

Erwin N. Griswold:

If there was some kind of an indication that it was a play.

Hugo L. Black:

Well, he wouldn’t have to make statement that I am not a member of the Armed Forces, would he?

Erwin N. Griswold:

That would have helped in this case but indeed, if he had had a sign of in his back not a member of the army, that might have made it enough so that the jacket was not a distinctive part of the uniform, I don’t know, we’re very close to the line in each case.

Hugo L. Black:

Even though they call it a protest, we’re really getting to pretty close lines, don’t we?

Erwin N. Griswold:

Yes, of course that’s part of the problem.

The government tries to protect itself in various ways and then whatever you do is either speech or a symbolic speech and the First Amendment completely engulfs it and the government’s powers are sharply restricted.

Erwin N. Griswold:

Now obviously, there is a line, a very important line and a difficult line but it’s perfectly plain.

It seems to me that this protest could be made and could be made without interference at that place, at that time, the problem was the making it in the way in which it was made regardless of the place and the time, including the wearing of the uniform which congress for more than 50 years has made it an offense when not authorized.

Well, our first submission is that the Court should dismiss this petition as having been granted without jurisdiction.

If we are not successful on that and I hope that we will be because I’m greatly troubled by the un-open ended situation in which we now are that the decision below on the merit should be affirmed.

Warren E. Burger:

Thank you Mr. Solicitor General.

Mr. Berg.

David H. Berg:

Mr. Chief Justice, may it please the Court.

I would make just one last point to the Court and that we have failed at least in our opinion defined any compelling interest suggested by the government for the enforcement of the statute.

The government acknowledges by the testimony that it read that the uniform itself was symbolic of speech, and we submit again that absent any compelling interest to regulate that action, the impingement on the freedom of expression, the symbolic act that the petitioner took part in was — that sort of impingement is not allowable under the holding of the O’Brien case, absent of compelling interest.

Warren E. Burger:

I did not understand the Solicitor General to concede that the wearing of this apparel was symbolic speech.

He said that each time these problems are raised in the Courts, he has met with the argument that this is symbolic speech.

David H. Berg:

If — excuse me.

Warren E. Burger:

I wouldn’t treat that as a concession.

David H. Berg:

If I misunderstood this argument, we believe the facts still remains that Schacht testified that he meant the uniform as showing discredit or criticism of the United States.

Warren E. Burger:

So his intention is not in dispute?

Erwin N. Griswold:

Yes.

No sir.

Hugo L. Black:

You’re not resting wholly on that constitutional claim, are you?

No sir.

No sir, we still would say that the statute was applied, but there are problems of construction of the statute is applied unconstitutional.

Warren E. Burger:

Thank you for your submission Mr. Berg and Mr. Solicitor General.

The case is submitted.