WAYTE v. UNITED STATES 470 U.S. 598 (1985)

After a presidential proclamation directing young men to register for a possible draft, David Wayte did not register, but wrote letters to government officials stating that he did not intend to do so. These letters went into a selective service file of men who had given similar notices or who had been reported by others for failing to register. The government adopted a policy of "passive enforcement" of registration: it would prosecute only men named in this file. Government officials wrote letters warning the men to register or face prosecution, and federal bureau of investigation agents urged Wayte in person to register during a grace period. He refused and was indicted for failure to register. The federal district court dismissed Wayte's indictment, holding that the government had not rebutted his preliminary showing of selective prosecution. The court of appeals reversed, holding that Wayte had not shown that the government had prosecuted him because of his protest. The Supreme Court affirmed, 7–2.

Justice lewis f. powell wrote the opinion of the court. Claims of selective prosecution, he said, must be judged under ordinary equal protection standards, which, as the Court held in washington v. davis (1976), require a showing of intentional discrimination. Here, the government's awareness that "passive enforcement" would fall disproportionately on protesters was an insufficient showing of intent to punish protest. Given the government's policy of urging compliance after receiving notice of failure to register, Wayte was not prosecuted for protesting, but for persisting in refusing registration.

Wayte's first amendment challenge also focused on the enforcement system's disparate impact on protesters. Applying the formula of united states v. o ' brien (1968), Justice Powell concluded that "passive enforcement" passed the test. The government interest in national security was important, and unrelated to the suppression of expression; and the enforcement system burdened speech no more than was necessary to secure registration.

Justice thurgood marshall dissented, joined by Justice william j. brennan, arguing that Wayte had been denied effective opportunity for discovery of information concerning the motivations of high government officials for prosecuting him. Thus, he could not fully support his claim that the prosecution was designed to punish his protest. The majority dismissed this argument, saying—contrary to the dissenters' view—that Wayte had not presented the issue to the Supreme Court.

Kenneth L. Karst
(1986)