Schact Analysis
18 U. S. C. §
702: It is a crime for any person "without authority [to wear]
the uniform or a distinctive
part thereof . . . of any of the armed forces of the United States . .
."
10 U.
S. C. § 772 (f), provides an exception to 18 U. S.C. § 702,
when the person wearing the uniform is doing so: "(f) While portraying
a member of the Army, Navy, Air Force, or Marine
Corps,
an actor in a theatrical or motion-picture production may wear the
uniform of that armed force if the portrayal
does not tend to discredit
that armed force."
Language in red is seen as an
unconstitutional content-based distinction by all 9 justices.
Three justices would rely on
language in green to send the case back to a lower court for a
determination as to whether Schact's skit was a theatrical production.
Hypo: Could Congress amend § 772 (f)
to limit theatrical productions to productions involving five or more persons?
Hypo: Under the existing law could a one-person skit
be a theatrical production?