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This is a followup to Is it illegal to wear military surplus clothing?

US Law 10 USC 771 provides that only members of the US military may wear:

...the uniform, or a distinctive part of the uniform, of the Army, Navy, Air Force, or Marine Corps;

or a similar uniform, except as otherwise provided by law. To do so without authorization is a crime. 18 USC 702 has almost identical provisions.

10 USC 772 gives a list of exceptions: circumstances in which people not currently in teh military may legally wear the uniform. Of these, paragraph (f) reads:

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. (emphasis added)

It seems to me that the bold section would, if enforced, constitute an impermissible regulation of symbolic speech, in that it is a content-based regulation.

Can it really be made criminal for an actor to portray a "member of the Army, Navy, Air Force, or Marine Corps" as a tyrant, or a bigot, or in some other way that "tend[s] to discredit that armed force"? There are some historical situations where an accurate portrayal might well "tend to discredit" a military service: For example the My Lai Massacre in Vietnam, or the Andersonville prison during the civil war, just to name two. Or a completely fictional portrayal of a modern Captain Queeg could be seen as discreditable. For the matter of that, the portrayal of the Captain in the classic WWII film Mister Roberts could be so seen.

Of course, this only arises as an issue if someone tries to prosecute in such a situation. If it were, would a First Amendment defense be likely to prevail?

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    Or just about anyone in Dr. Strangelove, or How... – DJohnM May 18 at 7:24
  • @DJohnM Quite true, and many more could be listed. At first I thought this was a purely theoretical issue. I was surprised to read Schact and find an actual prosecution based on the clause. – David Siegel May 18 at 13:17
  • @DJohnM: I think Dr. Strangelove was filmed in the UK, so at the time when the actors were actually wearing the uniforms, they weren't under US jurisdiction. – Nate Eldredge May 18 at 15:14
  • @Nate Eldredge Perhaps so, but it is an example fo the quite common genre of films to which such a law could in theory apply. – David Siegel May 18 at 19:49
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    Note that there is a difference between a soldier wearing his government issue uniform and portraying the military in a bad light and simply portraying the military in a bad light. – Loren Pechtel May 19 at 15:48
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Yes, A First Amendment defense would apply. This is no longer a crime.

Schacht

In Schacht vs. United States, 398 U.S. 58 (1970) the US Supreme Court held the final clause of 10 USC 772(f) unconstitutional on just this ground.

In that case anti-war protesters rehearsed and performed a skit in which soldiers shot and killed a character dressed as a member of the Vietcong, only to discover and proclaim that the character was a pregnant woman. One of them, Daniel Jay Schacht, was

indicted in a United States District Court for violating 18 U.S.C. 702, ... He was tried and convicted by a jury, and on February 29, 1968, he was sentenced to pay a fine of $250 and to serve a six-month prison term, the maximum sentence allowable ...

In the opinion by Justice Black, the Court held;

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. ...

... it follows that his conviction can be sustained only if he can be punished for speaking out against the role of our Army and our country in Vietnam. Clearly punishment for this reason would be an unconstitutional abridgment of freedom of speech. The final clause of 772 (f), which leaves Americans free to praise the war in Vietnam but can send persons like Schacht to prison for opposing it, cannot survive in a country which has the First Amendment. To preserve the constitutionality of 772 (f) that final clause must be stricken from the section.

Hamilton

In United States vs Hamilton (2012) the US Fourth Circuit Court of Appeals limited 18 U.S.C. § 702 (wearing a military uniform without authorization), and 18 U.S.C. § 704(a) and (d) (wearing military medals and other insignia without authorization).

Hamilton had, among other actions, appeared at a Vietnam Veterans’ Recognition Ceremony in the dress Uniform of a Colonel of US Marines, wearing numerous medals and awards including two Navy Crosses, four Silver Stars, one Bronze Star, and seven Purple Hearts. He had in fact been medically discharged years earlier with less than 1 year of service, after an accident to his hand, with the rank of Private First Class (PFC). He had not been awarded any of the medals or decorations that he wore. (He had previously been apprehended on military bases three times wearing the uniforms of a colonel (once) and a lieutenant general (twice), but was not charged on those occasions.)

The Fourth Circuit wrote:

We observe that the Ninth Circuit applied such a limiting construction to Section 704(a) in United States v. Perelman, holding that the statute created a criminal offense prohibiting the unauthorized wearing of military medals only when the wearer "has an intent to deceive." (658 F.3d at 1137-38) In our view, the imposition of a limiting construction requiring an "intent to deceive" is appropriate with respect to both Sections 702 and 704(a).

...

Accordingly, we hold that persons violate the insignia statutes if they wear a military uniform without authorization, or wear military medals or imitations of such medals, respectively, only when they do so with the intent to deceive.

The Fourth Circuit went on to hold these provisions constitutional when so limited, and to uphold the convictions under them, quoting Schacht is support of this holding.

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    The "Yes" at the start of your question is ambiguous, since there are multiple possible questions it could be saying yes to. The following sentence doesn't do much to clarify things; it can be read as "yes, a first amendment defense would apply" or "yes it's a crime, but a first amendment defense would apply". Reading the SCHACHT v. UNITED STATES ruling, it looks like the final clause of paragraph (f) has been stricken by judicial review, so such portrayals are no longer a crime. – user2357112 May 18 at 6:03
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    Thank you @user2357112 I have clarified the answer. See if it looks good to you now. – David Siegel May 18 at 13:13
  • The question is is presenting a play .... a crime. Your answer starts by saying Yes. So It is a crime. The rest of the answer says no. It is the first word user2357112 y is querying and you have nmot changed it. – Mark May 19 at 9:21
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    @Mark Oh, come on. The question ends, "... or would a First Amendment defense be likely to prevail?" The answer begins "Yes, A First Amendment defense would apply. This is no longer a crime" in large, boldface letters. There is no ambiguity here whatsoever. – David Richerby May 19 at 14:34
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    @Mark, I think the question that counts is the one stated in the body, particularly as a conclusion, not the title. I don't think anyone who read the entire question would find the answer in any way confusing, nor would anyone who ready even the first paragraph of the answer be confused as to the meaning of the answer. Anyone who reads JUST the title and the Boldfaced answer and is thereby confused I am not much concerned with But I have added a 2nd question to the title, to avoid any possible confusion. – David Siegel May 19 at 15:51

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