John Marshall Harlan II

“ The Court, on the other hand while refusing to assay a definition of the statutory language, flatly declares that under any interpretation, Congress could not possibly have meant to exclude petitioner's 'street skit' from the class of 'theatrical productions.' Neither extreme, in my view, is correct. The critical question in deciding what is to count as a 'theatrical production' ought to be whether or not, considering all the circumstances of the performance, an ordinary observer would have thought he was seeing a fictitious portrayal rather than a piece of reality. ”

“ The United States has argued that the exception for 'theatrical productions' must be limited to performances in a setting equivalent to a playhouse or theater where observers will necessarily be aware that they are watching a make-believe performance. Under this interpretation, the Government suggests, petitioner must be found as a matter of law not to have been engaged in a 'theatrical production' ”

“ See App. 51-54. Since the general verdict does not disclose which of these findings-only one of which can constitutionally entail conviction-was the actual finding, the conviction must of course be reversed. ”