United States v. Smith

• Decision Date: 14 May 1969
• Docket Number: No. 26398.,26398.
• Citation: 414 F.2d 630
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jarrett Vander SMITH, Jr., and Daniel Jay Schacht, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

414 F.2d 630 (1969)

UNITED STATES of America, Plaintiff-Appellee, v. Jarrett Vander SMITH, Jr., and Daniel Jay Schacht, Defendants-Appellants.

No. 26398.

United States Court of Appeals Fifth Circuit.

May 14, 1969.

Will Gray, Houston, Tex., for defendants-appellants.

Morton L. Susman, U. S. Atty., James R. Gough, Joel P. Ray, Asst. U. S. Attys., Houston, Tex., for plaintiff-appellee.

Before GOLDBERG and MORGAN, Circuit Judges, and LIEB, District Judge.

LIEB, District Judge:

On December 4, 1967, approximately twenty people gathered outside the Armed Forces Induction Center at Houston, Texas. Their purpose — not unexpectedly — was to protest American participation in the Vietnam conflict. They remained on the scene from about 6:30 A.M. to about 8:30 A.M. As such events will, this one attracted the news media and federal and local law enforcement agents.

Among the demonstrators¹ were Daniel Jay Schacht and Jarrett Vander Smith, Jr., the appellants in this case. Schacht was observed wearing "the fur felt Army officer's cap with the strap loose and hanging down, and with an Army officer's insignia upside down. On his body * * * he had an Army green shade 44 enlisted blouse with a U.S. Army Europe patch on the left shoulder." The buttons on the blouse, as well as the blouse itself, were the currently authorized buttons and blouse issued to service personnel. The eagle insignia on the cap was also of current issue. Smith was seen wearing an Army jacket or blouse with official current military buttons attached to it.

Smith and Schacht were indicted, tried by a jury and convicted of violating 18 U.S.C.A. § 702 (1964)², which prohibits the unauthorized wearing of a distinctive part of an Army uniform. They made no attack on the jury finding that they did wear distinctive parts of the military uniform; they raised constitutional issues concerning the free speech guaranty of the First Amendment and the due process guaranty of the Fifth Amendment of the United States Constitution.

By way of defending the case in the District Court, Smith and Schacht contended that they qualified to wear parts of the uniform pursuant to 10 U.S.C.A. § 772(f) (1952)³, which permits an actor to wear a military uniform in a theatrical production "if the portrayal does not tend to discredit that armed force." It is argued on appeal that the appellants were participating in a play or skit which was designed to expose the evil of the American presence in Vietnam. They maintain that their actions were protected by 10 U.S.C.A. § 772(f) (1952) or, if not, that the statute creating an exception to the principal violation acts as an unconstitutional restraint on the right of free speech and is unconstitutionally vague.

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."⁴

Initially it should be stated that the evidence does not situate Smith as a participant in the so-called "skit." Apparently his only function was to distribute leaflets to the onlookers. That portion of this opinion which considers the Section 772(f) defense, therefore, is limited to appellant Schacht; as to Smith the defense is inapposite.

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.⁵ 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 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. A demonstrator testified at trial that the purpose of their activities was not "to discredit the Army exactly, to discredit the actions of the United States being involved." Undoubtedly that statement fairly depicts the objectives of Smith and Schacht.

Smith and Schacht were not convicted for disturbing the peace or for disorderly conduct. They were not charged with sedition, treason, mutiny, or the like; nor were they prosecuted for the substance of their utterances, either oral or written. Smith and Schacht were not prosecuted because of their roles in the performance of a skit which was critical of the American involvement in Vietnam.

Smith and Schacht were prosecuted for their unauthorized wearing of a distinctive part of the military uniform, plain and simple. Without more, their convictions would be unassailable from a constitutional viewpoint. They wore portions of the current issue of the military uniform; they did not have lawful permission to wear the uniform; and they acted with knowledge of what they were doing. For their violation of the statute they were tried and convicted by a jury.

The appellants, however, seek to cloak their action with the First Amendment guaranty against intrusions on their right of free and unhampered speech. How has the United States violated their right to free speech? Smith and Schacht argue that by regulating the wearing of armed forces uniforms, the United States has on this occasion restricted their constitutional right to peaceably demonstrate and speak on topics which are unpleasant to the majority of citizens; that the statutory regulation acts as a previous restraint on their peaceful activities.

I.

The statute with which we are concerned, 18 U.S.C.A. § 702 (1964), proscribes certain conduct. It makes unlawful the wearing of a distinctive part of a military uniform without permission.

It is assumed, and we think properly, that the appellants had a perfect right to demonstrate when and where they did. The demonstration was peaceable and orderly; it was not illegal as such. Accord, Brown v. State of Louisiana, 383 U.S. 131, 86 S.Ct. 719, 15 L.Ed.2d 637 (1966). The appellants sought to highlight alleged governmental evils and they were free to do so as an incident to their rights as citizens. In Rosenblatt v. Baer, 383 U.S. 75, 85, 86 S.Ct. 669, 676, 15 L.Ed.2d 597 (1966), the Court declared that:

Criticism of government is at the very center of the constitutionally protected area of free discussion. Criticism of those responsible for government operations must be free, lest criticism of government itself be penalized.

See also, Mills v. State of Alabama, 384 U.S. 214, 218, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966); Cantwell v. State of Connecticut, 310 U.S. 296, 310, 60 S.Ct. 900, 84 L.Ed. 1213 (1940).

Constitutional principles caution us to be circumspect when deciding controversies that include problems affecting freedom of speech. In weighing the possible evils to be derived at the hands of a strong federal government, our forefathers decided that the infringement of a man's speech was primary.⁶ And so, it has long been the policy of the courts to observe the rule enunciated recently in Ashton v. Kentucky, 384 U.S. 195, 200, 86 S.Ct. 1407, 16 L.Ed.2d 469 (1966):

When First Amendment rights are involved, we look even more closely lest, under the guise of regulating conduct that is reachable by the police power, freedom of speech or of the press suffer.² Footnote Omitted

What we have said, however, should not be understood to mean that we are powerless to act when First Amendment defenses are hoisted. Constitutional rights are not the special possession of man isolated from society; the rights extend to all men, and their welfare also must be considered. Freedom of speech is not illimitable.

First Amendment rights "are not confined to verbal expression"; they include appropriate types of action. Brown v. State of Louisiana, supra, at 141-142, 86 S.Ct. at 724; Garner v. State of Louisiana, 368 U.S. 157, 82 S. Ct. 248, 7 L.Ed.2d 207 (1961). At the same time, "certain forms of conduct mixed with speech may be regulated or prohibited." Cox v. State of Louisiana, 379 U.S. 536, 563, 85 S.Ct. 476, 480, 13 L. Ed.2d 487 (1965). It becomes essential, therefore, for this Court to strike a constitutionally acceptable balance so that any statutory inhibition on the exercise of free speech will not fall within that vast wasteland of proscribed governmental activity.

The problem before us is not a novel one. The Supreme Court of the United States has contended with it on several occasions and, yet, it remains unresolved. We start with what the Court said in Cox v. State of Louisiana, supra, at 555, 85 S.Ct. at 464:

We emphatically reject the notion urged by appellant that the First and Fourteenth Amendments afford the same kind of freedom to those who would communicate ideas by conduct such as patrolling, marching, and picketing on streets and highways, as these amendments afford to those who communicate ideas by pure speech.

Smith and Schacht were participating in two modes of conduct at the same time that they were voicing their disapproval of their sovereign's involvement in Vietnam. First, Smith was distributing leaflets and Schacht was acting out his role as a soldier in the skit. As to these activities the Government has no quarrel. Second, both men were wearing distinctive parts of the current issue of the military uniform. This conduct was forbidden by Congress and their doing of it resulted in their prosecution for violation of a criminal statute.

Can the United States Government lawfully enforce a criminal statute which may have as an incidental effect the inhibition of an individual's right of free expression? We think that it can under proper...