Stolen Valor Part 1: LIMITED WEAR OF MILITARY UNIFORMS

First in a series of articles addressing “Stolen Valor”
​
By Barry J. Bernstein*

              For many years there has been federal law limiting the wear the military uniform and decorations.  This went unchallenged for many years as the reality of having a military in a free society.  This began to change in the 1960’s and 1970’s.
​
        The unrest of Vietnam brought in an era of change and anti-war demonstrations brought 1st Amendment challenges to limitations on military needs.  The first real challenge was United States v. O’Brien, 391 U.S. 367 (1968).  O’Brien was a war protestor that burned his draft card in defiance of a provision of a law similar to the uniform prohibition.  He was charged with a federal crime and convicted.  On appeal to the Supreme Court his conviction was upheld, saying they would uphold statutes where they advanced a legitimate government interest and the law was not intended to inhibit free expression.  However, the Court began modifying its foundations as the Vietnam era of protest transformed American society.
           Though there were limits on the use of the uniform, an exception existed for the wear of the uniform for actors in a performance.  The exception went so far as to say that it could only be for performances that reflected positive images of the uniform (if you think of war movies before the 1970’s, they were never negative).  As part of an anti-war skit in front of an induction center, Daniel Schacht wore parts of a military uniform.  He was convicted for wearing the uniform.  

         The Supreme Court focused only on the limit of positive portrayals in a positive light as a 1st Amendment violation of free expression.  Basically, the Court found the government was limiting expression to only supportive portrayals and was intentionally limiting free expression against the government.  The Court sidestepped issues of Schacht only fragments of a uniform, ignored whether that he was not a typical “actor,” and even avoided determining whether the demonstration was an actual “performance.”  Instead, the Court focused on the exception’s limited use only “if the portrayal does not tend to discredit that armed force.” 10 U.S.C. § 772(f) (1956).  The free speech argument zeroed in on the government controlling free expression to only positive portrayals.  The Court noted that even where the “performances were crude and amateurish and perhaps unappealing” it was protected free-speech.  Schacht’s conviction was reversed. Schacht v. United States, 398 U.S. 58 (1970).  The 1st Amendment issue seemed settled, and the ruling spawned a new generation of war movies and military comedies in less than patriotic themes.

            The law is still on the books as previously written, where only positive portrayals are allowed.  However, with the Schacht ruling it is unenforceable.  It was also a significant change in the law as far as the 1st Amendment.  With the end of the Vietnam protests, so seemed the issue for a generation.  However, things stirred up in the 1990’s and the issue of protecting the uniform changed to a broader issue of “stolen valor.”  Future articles in this series will address these 21st century issues.

While these articles are intended to inform you of unique issues of the military and veterans, it does not replace the need for proper legal advice by a licensed attorney in your jurisdiction.
    *The author retired as a colonel after 34 years of service.  He now practices law at Bernstein Law Firm, LLC in Irmo, South Carolina, advising clients and attorneys on military issues.