Wayte v. United States
470 U.S. 598 (1985)
Rule of Law:
To succeed on a selective prosecution claim, a defendant must show that the government's enforcement policy had both a discriminatory effect and was motivated by a discriminatory purpose. A passive enforcement policy that incidentally burdens speech is permissible under the First Amendment if it furthers a substantial government interest unrelated to the suppression of expression.
Facts:
- In July 1980, a presidential proclamation required male citizens born in 1960 to register with the Selective Service System.
- Wayte, who was required to register, failed to do so.
- Instead of registering, Wayte wrote several letters to government officials, including the President, stating that he had not registered and did not intend to do so.
- The Selective Service adopted a 'passive enforcement' policy, under which it would only investigate and prosecute individuals who self-reported their non-registration or were reported by others.
- Wayte's letters were added to the Selective Service file of reported non-registrants.
- The government then instituted a 'beg' policy, sending letters to reported non-registrants urging them to register to avoid potential prosecution.
- Wayte received a letter as part of the 'beg' policy but did not respond or register.
- The President announced a grace period for registration, which extended until February 28, 1982, but Wayte still did not register.
Procedural Posture:
- Wayte was indicted in the U.S. District Court for the Central District of California for knowingly and willfully failing to register with the Selective Service.
- Wayte moved to dismiss the indictment, alleging selective prosecution on the basis of his exercise of First Amendment rights.
- The District Court granted Wayte's request for discovery of government documents relevant to his claim.
- The Government refused to fully comply with the discovery order, citing executive privilege.
- The District Court dismissed the indictment, holding that Wayte had established a prima facie case of selective prosecution that the Government had failed to rebut.
- The Government, as appellant, appealed the dismissal to the U.S. Court of Appeals for the Ninth Circuit, with Wayte as the appellee.
- The Court of Appeals reversed the District Court's dismissal, finding that Wayte had failed to show that the Government focused on him because of his protest activities.
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Issue:
Does a passive enforcement policy for draft registration, which prosecutes only those who self-report their non-compliance or are reported by others, violate the Fifth Amendment's equal protection component and the First Amendment's guarantee of free speech?
Opinions:
Majority - Justice Powell
No, the government's passive enforcement policy for draft registration violates neither the Fifth Amendment's equal protection component nor the First Amendment's free speech protections. To prove a selective prosecution claim, a defendant must demonstrate both a discriminatory effect and that the policy was motivated by a discriminatory purpose. Wayte failed to show discriminatory purpose; the government did not prosecute him because of his protest activities but because he refused to register. The policy of prosecuting only self-reported or reported individuals, coupled with the 'beg' policy giving them a chance to comply, shows the government's focus was on non-registration, not speech. Those prosecuted, in effect, selected themselves by refusing to register after being warned. Under the First Amendment analysis from United States v. O'Brien, the policy is constitutional because it furthers the compelling governmental interest in national security, this interest is unrelated to the suppression of free expression, and the policy was a necessary interim measure that was no greater a restriction on speech than essential to further that interest.
Dissenting - Justice Marshall
The Court should not have reached the merits of the constitutional claim. The central issue is whether the district court abused its discretion in determining that Wayte had made a sufficient nonfrivolous showing of selective prosecution to be entitled to discovery of government documents. Wayte met this lower burden by presenting evidence that he was a member of a distinct class (vocal opponents of the draft), that this class was disproportionately selected for prosecution under the passive system, and that the selection procedure was not neutral. Because the district court's discovery order was proper and the government refused to comply, the Court of Appeals should not have reversed the dismissal on the merits. The majority's analysis is flawed because it ignores the potentially discriminatory nature of how the pool of potential defendants was created in the first place, focusing instead only on how individuals within that tainted pool were treated.
Analysis:
This case establishes a high barrier for defendants claiming selective prosecution based on the exercise of First Amendment rights. By requiring proof of discriminatory purpose, not just effect, the ruling grants significant deference to prosecutorial discretion, especially in matters of national security. The Court's distinction between a decisionmaker acting 'because of' versus merely 'in spite of' a policy's adverse effects on a protected group became a crucial element in subsequent equal protection analysis. This makes it challenging to challenge facially neutral enforcement policies that disproportionately affect protestors or other vocal groups.
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