Wayte v. United States

Facts of the Case

The President of the United States directed male citizens to register for the Selective Service System through a general proclamation. Wayte protested and ignored the system. An indictment was eventually returned against him for failing to register in violation of the Military Selective Service Act. Wayte moved for a dismissal, contending that he was selectively prosecuted for resisting the system. The district court granted the motion. Respondent government appealed, asserting that petitioner did not prove a prima facie case of discrimination. The appellate court agreed, holding that Wayte never proved that respondent focused an investigation on him because of his activities.


Did the Justice Department’s policy of passive enforcement of the Selective Service Act, in which it prosecuted only those men who were reported by others or who reported themselves for not registering with the Selective Service system, violate the First and Fifth Amendments?


No. The Supreme Court held, 7-to-2, that the government’s passive enforcement policy was constitutional. In the majority opinion, Justice Lewis Powell found that the government’s policy was not unconstitutional selective enforcement (in violation of the Fifth Amendment’s Equal Protection clause) because men who had not taken an outspoken stance against the Selective Service, but who were merely reported by others for failing to register, were treated the same as those men who had notified the government of their own refusal to register. Justice Powell wrote, In the present case, petitioner has not shown that the Government prosecuted him because of his protest activities. Absent such a showing, his claim of selective prosecution fails.To decide the First Amendment challenge, Justice Powell cited four requirements for incidental government regulation of speech laid out in United States v. O’Brien: the regulation must be within the government’s constitutional power, must further an important or substantial government interest, must have an interest unrelated to the suppression of free speech, and must restrict only as much speech as is necessary to meet the government interest. Powell found that the passive enforcement policy satisfied all these requirements, and therefore did not violate the First Amendment.

Case Information

  • Citation: 470 US 598 (1985)
  • Argued: Nov 6, 1984
  • Decided Mar 19, 1985