Authority of Government to Regulate Wearing All or Part of Armed Services Uniforms
In United States v. O'Brien, 391 U.S. 367, 376, 20 L. Ed. 2d 672, 88 S. Ct. 1673 (1968), the Court considered whether a federal statute prohibiting the "knowing destruction" of a Selective Service card violated the First Amendment. 391 U.S. at 375.
O'Brien burned his draft card in an antiwar demonstration.
The Court noted that on its face, the statute regulated conduct, not speech, and did not abridge the First Amendment.
The Court stated, however, that "when 'speech' and 'nonspeech' elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms." Id. at 376.
Addressing O'Brien's claim that the statute was unconstitutional as applied and as enacted because Congress's purpose was to abridge free speech, the Court applied the test discussed earlier. Id. at 377; see Johnson, 491 U.S. at 407 (noting that the O'Brien standard is limited "to those cases in which 'the governmental interest is unrelated to the suppression of free expression'").
The Court held the statute met all of these requirements and upheld the conviction. Id.; cf. Regan v. Time, Inc., 468 U.S. 641, 648-49, 655-56, 82 L. Ed. 2d 487, 104 S. Ct. 3262 (1984) (holding unconstitutional as impermissibly content-based a federal statute prohibiting the photographic reproduction of U.S. currency except for "historical," "newsworthy," or certain other purposes, but upholding the statute's size and color requirements for permissible reproductions as reasonable time, place, or manner restrictions).
The Court subsequently upheld against a First Amendment challenge a federal statute similar to section 843.085(1), although it struck part of a related statute.
In Schacht v. United States, 398 U.S. 58, 26 L. Ed. 2d 44, 90 S. Ct. 1555 (1970), the Court considered whether a conviction for wearing parts of a U.S. Army uniform without authorization violated the First Amendment.
The defendant, who was not in the military, performed in a skit at an antiwar rally while wearing an official U.S. Army shirt with a shoulder patch and a military hat with the then-current official insignia of Army officers. He was convicted under the following statute:
Whoever, in any place within the jurisdiction of the United States or in the Canal Zone, without authority, wears the uniform or a distinctive part thereof or anything similar to a distinctive part of the uniform of any of the armed forces of the United States, Public Health Service or any auxiliary of such, shall be fined not more than $ 250 or imprisoned not more than six months, or both.18 U.S.C. 702 (1964)
The defendant claimed that he was authorized to wear the uniform under a separate provision, which permitted an "actor in a theatrical or motion-picture production" to wear the uniform "while portraying" a member of the armed forces. Id. at 59-60 (quoting 10 U.S.C. 772(f) (1964)).
The Court first addressed the validity of the statute prohibiting anyone from wearing an armed forces uniform without authorization.
Citing O'Brien, the Court stated that its "previous cases would seem to make it clear that 18 U.S.C. 702, making it an offense to wear our military uniforms without authority is, standing alone, a valid statute on its face." Schacht, 398 U.S. at 61.
The Court thus recognized that the government had the authority to regulate who could wear all or even part of its armed services uniforms.
The Court in Schacht did invalidate a clause in the separate "actor's exemption," which authorized actors to wear armed services uniforms, but only if they portrayed the military in a positive light:
When wearing of military uniforms by persons not on active duty authorized.
(f) While portraying a member of the Army, Navy, Air Force, or Marine Corps, an actor in a theatrical or motion-picture may wear the uniform of that armed force if the portrayal does not tend to discredit that armed force.
10 U.S.C. 772(f) (1964) (emphasis added).
The Court explained that this clause on its face simply restricts 772(f)'s authorization to those dramatic portrayals that do not "tend to discredit" the military, but, when this restriction is read together with 18 U.S.C. 702, it becomes clear that Congress has in effect made it a crime for an actor wearing a military uniform to say things during his performance critical of the conduct or policies of the Armed Forces. 398 U.S. at 62.
In other words, the statute exempted only actors positively portraying the military.
This was clearly a content-based restriction on speech.
Important for this discussion, the Court invalidated only the clause prohibiting an actor from discrediting the military. Id. at 63.