Wayte v. United States

PETITIONER:Wayte
RESPONDENT:United States
LOCATION:United States Courthouse

DOCKET NO.: 83-1292
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 470 US 598 (1985)
ARGUED: Nov 06, 1984
DECIDED: Mar 19, 1985

ADVOCATES:
Mark D. Rosenbaum – on behalf of the Petitioner
Rex E. Lee – on behalf of the Respondent

Facts of the case

Mr. Wayte was required by a 1980 Presidential Proclamation to register with the Selective Service system. Instead, he wrote letters to various government officials stating that he had not registered and did not intend to do so. Wayte’s letters were added to a file kept by the Selective Service of men who had informed the government that they were not complying with the proclamation.

The Selective Service later adopted a policy of passive enforcement, in which it would prosecute only men who had either reported to the government that they were not registering or whom other people had reported to the government for not registering. After a long series of requests by the government that Wayte register (all of which he failed to respond to), the government eventually indicted Wayte in federal district court for violating the Military Selective Service Act.

The district court, however, dismissed the indictment, holding that the government’s passive enforcement policy was unconstitutional because it amounted to selective prosecution of only those men who took an outspoken stance against the Selective Service. On appeal, the Ninth Circuit Court of Appeals reversed, holding that Wayte had failed to show that the government focused its attention on him because of his protest activities.

Question

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?

Warren E. Burger:

We will hear arguments first this morning in Wayte against the United States.

Mr. Rosenbaum, you may proceed whenever you are ready.

Mark D. Rosenbaum:

Mr. Chief Justice, and may it please the Court, a system of justice must of course take advantage of confessions and eye witness reports of criminal activity.

We do not attack that proposition, nor do we seek immunity for offenders regardless of how identified.

Rather, this case presents the issue whether the government violates the First Amendment by a policy of enforcing the draft registration law in a way that inherently results in investigating and prosecuting only those who proclaim their noncompliance with registration, a group that would inevitably be limited to political opponents of draft registration.

What is undisputed here may be briefly stated.

Of the 700,000 who violated the registration law, as both courts below found, only 13, all of them political or religious protestors against Selective Service, were investigated or prosecuted.

Warren E. Burger:

Wouldn’t it be fair to say that most of the people who fail to register are opponents of the registration process?

Mark D. Rosenbaum:

Chief Justice Burger, there were hearings before a Congressional Committee as to the causes of individuals who did not register.

Those hearings before a Senate Subcommittee elicited a variety of reasons, only one of which was religious or political objection to the registration.

In fact, as we indicated in our papers, persons felt that the President wasn’t serious about draft registration, persons were upset that their peers had been not prosecuted.

Six separate reasons were listed.

Political and moral objection was only one of them.

So, it was not mere statistical happenstance that the only individuals in fact prosecuted were political or religious objectors.

From the inception of the government’s policy, the Justice Department recognized that investigating and prosecuting only those who proclaimed their noncompliance would result in a skewed sample of nonregistrants, what the government itself termed a not typical sample.

The department recognized–

William H. Rehnquist:

What does that term mean in the sense of skewed or non-typical?

Mark D. Rosenbaum:

–It meant that out of an entire pool of nonregistrants, individuals who had a variety of reasons for not registering, the only individuals who in fact would be selected, would be singled out, would be those who had actively protested, either by writing the President of the United States or by speaking out against the draft itself.

William H. Rehnquist:

But you are going to single out by some method, have some system for prosecution, so in that sense any system is “skewed” in your terms, isn’t it?

Mark D. Rosenbaum:

Any system singles out certain individuals for investigation and prosecution.

The critical issue in this case is whether the government can rely upon a policy which if activated only through the exercise of political petition or speech.

Lewis F. Powell, Jr.:

May I ask, of the total pool I think you mentioned 500,000 or 600,000.

Mark D. Rosenbaum:

Yes, sir.

Lewis F. Powell, Jr.:

How many of those have been identified by the government as nonregistrants at the time the 15 suits were filed?

Mark D. Rosenbaum:

That is an interesting question that goes to the nature of the government’s enforcement policy.

In fact, only in the neighborhood of some 500 or 600 individuals had been identified by the government’s policy, but that wasn’t because the government had sought a variety of methods to identify individuals, and happened only as a matter of chance to elect to find the individuals who had spoken out or who had written the President.

The very premise of the government’s enforcement policy was that it was not interested, that it showed no concern whatsoever for nonregistrants who had violated the law in any other way.

It was as if the law that the government was enforcing was a law that made it a crime to not register when accompanied by protest or speech, not the offense itself.

Lewis F. Powell, Jr.:

Is my recollection incorrect that the government had explored various ways of ascertaining the identity of a much larger number of a pool?

Mark D. Rosenbaum:

Let me answer that in two respects, Justice–

Lewis F. Powell, Jr.:

Is that true?

Mark D. Rosenbaum:

–It is not true that the government at the time that these individuals had been prosecuted had in fact made a determination to investigate or prosecute by any other system than the passive enforcement system.

For First Amendment purposes, whether in fact they had intended another enforcement policy is irrelevant.

The cases from this Court from the very beginning of analysis of the First Amendment have consistently held that a First Amendment violation exists by virtue of whether or not there is an impact on the First Amendment.

That the government might have had good intentions, might some day have wanted to investigate other individuals has no bearing as to whether or not a First Amendment offense had in fact been committed.

But the fact of the case is, as the District Court found, and it was not reversed by the Ninth Circuit, that the government itself had not pursued available alternative methods, that in February of 1982, the government in a volume called Increasing Selective Service Compliance, had examined other alternatives besides the passive enforcement system, had found them viable, reasonable.

The only costs it had been concerned about were political costs.

In March of 1982, eight months after the government states to this Court that it was interested in another policy, a memo was drafted from the Assistant Attorney General of the Criminal Division to his counterpart in the Selective Service Department which said, the purpose of this memo is to explore whether or not we shall address, whether or not we shall establish an active enforcement system.

That is at Page 294 of the memo.

And when I questioned David Klein, the Justice Department official who had authored that memo, I said to Mr. Klein, why did you write it in March, ’82, eight months after you say that the government was intent upon a system?

And Mr. Klein’s response, at 798 and at 803 of the record, was that he wanted to push the decisionmakers, he wanted to push Selective Service to the maximum extent possible to establish an active enforcement system.

William H. Rehnquist:

Mr. Rosenbaum, what was the occasion for your questioning Mr. Klein?

Mark D. Rosenbaum:

It was in the course of a hearing before the District Court on the question of the propriety of the prosecution system which the government had employed.

William H. Rehnquist:

The District Court allowed you to take a deposition like that?

Mark D. Rosenbaum:

It was in open hearing.

It was an evidentiary hearing in the course of pretrial–

William H. Rehnquist:

Requested by you?

Mark D. Rosenbaum:

–Requested by us, but we made a prima facie showing which the District Court found that individuals had been singled out by virtue of their expression of political rights.

Sandra Day O’Connor:

Mr. Rosenbaum, it sounded to me in looking at the record as though in the court below you had proceeded on a selective prosecution theory, and that up in this Court now you are approaching the problem much as you would in attacking a statute which on its face burdens First Amendment rights.

Have you changed your theory and your contentions?

Mark D. Rosenbaum:

No.

Justice O’Connor, it is true, as you point out, that the basis of the argument that I am principally making to the Court this morning is as if there was a statute that established this enforcement system, because in fact–

Sandra Day O’Connor:

Have you abandoned then–

Mark D. Rosenbaum:

–No.

Sandra Day O’Connor:

–the selective prosecution ground?

Mark D. Rosenbaum:

We have not abandoned the argument that there was intentional discrimination, that Judge Hatter found that intentional discrimination, and that the Ninth Circuit was incorrect in reversing.

The Ninth Circuit did not state that in fact there wasn’t that intent present.

All the Ninth Circuit said was, there are other justifications that exist, stated that the clearly erroneous standard ought to be applied, but never indicated why upon an analysis of the clearly erroneous standard somehow intent would not be there.

But it is actually the government that has shifted its argument in this Court.

At the Ninth Circuit level and at the District Court level, it was conceded by the government that what was implicated in this case were First Amendment rights, and it is only the government for the first time arguing before this Court that First Amendment rights are not involved in this case.

Mark D. Rosenbaum:

And of course the nature of the policy itself is one that the government has recognized.

Sandra Day O’Connor:

Well, you don’t want us to address that, then?

I am a little confused by your response.

Mark D. Rosenbaum:

I am stating to the Court–

Sandra Day O’Connor:

They can’t, of course, raise an issue.

It is your petition.

Mark D. Rosenbaum:

–No.

And we continue to rely upon the District Court’s findings, and state that that is an independent ground for which the District Court’s decision could be sustained.

But the point is in this particular matter that even if there hadn’t been a finding of intent, the government policy here, which you correctly state is tantamount to a statute, a statute that would say that those who speak out will be prosecuted–

Sandra Day O’Connor:

Well, on that point, is it not true that the policy of the government also incorporated prosecution of those reported by third parties–

Mark D. Rosenbaum:

–Yes.

Sandra Day O’Connor:

–to be violated?

Mark D. Rosenbaum:

Yes, and–

Sandra Day O’Connor:

So it isn’t quite as you have described it.

Mark D. Rosenbaum:

–No, Justice O’Connor, the government’s argument that the third policy reporting provision doesn’t save the First Amendment matter in this case for the government.

The government argues, for example, that because there were these third party reports, there was the possibility, the possibility that individuals could be identified who were not involved in exercise of speech.

But the government itself recognized in a variety of memoranda in this record that those who would be identified by third party reportings would be the vocal proponents of nonregistration.

That’s the government’s words.

And they didn’t have to call in a social behaviorist to find that out.

Sandra Day O’Connor:

But not necessarily.

For example, in the Eklund case it was the parents of some young man.

Mark D. Rosenbaum:

Yes, but the high probability which the government recognized was in fact the case.

Consider the nature of this case.

Consider the way a third party might report… might report a violation of the registration law.

This is not a crime that admits of eye witnesses.

Jimmy Stewart could stare out his rear window forever and he would never sight a young man in the act of not registering.

Nor is this the sort of crime that an individual over a backyard fence would discuss.

An individual is not going to come up and say, good morning, how are you, nice day to day, how are the Redskins doing, by the way, I am still not registered, what are you going to have for dinner tomorrow?

There is not a single piece of evidence in this record, either in the course of the trial itself or in the hearings which the government cites that indicates that this individual was anything but hypothetical, the individual who would be reporting outside protected speech.

Sandra Day O’Connor:

But you concede that the stated policy would have admitted that prosecutions would be based also on third party reports.

Mark D. Rosenbaum:

I would concede that only if we regard this case in a most abstract sense, and not look in the real world, as the government itself understood, how in fact it would be enforced, that the possibility of a significant number of individuals reported by methods not related to use of speech, exercise of speech, could be involved.

And, Justice O’Connor, in your decision in the Minneapolis case, Minneapolis Star and Tribune, the ink and paper tax case, the Court there stated that a special tax that singled out the newspaper for a unique burden, a unique disadvantage, would be unconstitutional because of the special disfavor that it placed the First Amendment.

Now, imagine in that case if Minnesota responded to that decision and said, we will enlarge the ink and paper tax to include a paper tax on small butcher shops.

That mere patch-on of an insignificant number of individuals certainly couldn’t rescue the statutory system that was implicated there in terms of its unique disfavor to the First Amendment.

John Paul Stevens:

Mr. Rosenbaum, can I ask you a question before I lose the… I think it is relevant to what you are saying.

Justice Powell asked you about the size of the universe.

You said there were about 500 or 600 people that were identified at the same time.

Is that correct?

Mark D. Rosenbaum:

I believe the first group was around 130, and by the time the matter was completed, it may have been somewhere in the neighborhood of 900 or 1,000.

John Paul Stevens:

And what happened to the other 987?

Mark D. Rosenbaum:

The government had a policy which is colloquially referred to as the beg policy, in which the government would say to an individual, we have information that you are not registered.

You have a duty to register.

If you don’t register within three weeks, you will be prosecuted.

John Paul Stevens:

You don’t… it won’t be prosecuted.

Now, did they apply that policy to these 13 people?

Mark D. Rosenbaum:

Yes, they did.

John Paul Stevens:

So within the group of 1,000, was there discrimination against these 13 because of what they said?

Mark D. Rosenbaum:

It is true that the individuals who were singled out for the actual prosecution were those that were most adamant, and that it was the use of that speech–

John Paul Stevens:

They are the ones who refused to take advantage of the government’s offer.

Mark D. Rosenbaum:

–That’s correct, but the beg system in addition–

John Paul Stevens:

And would you not say that they were treated… they were not discriminated against as contrasted with the other members of this… if we limit the universe for a moment to 1,000 persons, were they treated differently than the 1,000?

Mark D. Rosenbaum:

–Well, in the sense, Justice Stevens, that the actual prosecutions were limited to persons who in fact stated their dissent most vigorously.

That was the only individuals that would be–

John Paul Stevens:

Well, they are the ones who refused to register.

Mark D. Rosenbaum:

–That’s correct.

John Paul Stevens:

It doesn’t matter what words they used in stating… they said, no, we won’t register.

That is the speech for which they are being prosecuted.

Mark D. Rosenbaum:

That’s correct.

I want to make another point.

John Paul Stevens:

Do you think that they have no right to prosecute somebody for saying I will not register?

Mark D. Rosenbaum:

No, I think the government has an absolute right to prosecute an individual who says I will not register, or that… admits a confession of any kind.

John Paul Stevens:

After they identify 1,000 people who… by some public means they cannot select the 13 out of that 1,000 who won’t register?

Mark D. Rosenbaum:

No, no objection to prosecuting individuals as an abstract matter who say that they will not register.

The concern here is that the only individuals that the enforcement policy was activated against–

John Paul Stevens:

Were 1,000, not 13.

Mark D. Rosenbaum:

–Yes, but that 1,000 was a sample of individuals who had either written the President their opposition or who had expressed publicly their opposition.

John Paul Stevens:

Their opposition, or their unwillingness to register?

Mark D. Rosenbaum:

Their opposition, Justice Stevens.

John Paul Stevens:

Do you know that as to all 1,000?

Mark D. Rosenbaum:

I know that the government itself recognized from the outset that the individuals who would be singled out for the application of the beg policy, that is, the individuals who would be investigated and prosecuted, would be individuals who were protesting, not registrants.

As recently as the brief filed by–

John Paul Stevens:

Were there no people called to the attention of the government by informers?

Mark D. Rosenbaum:

–There is no–

John Paul Stevens:

Somebody might get up at a meeting and say, I’d like everybody else to register, but they are never going to catch me.

Nobody like that was ever reported to the government?

Mark D. Rosenbaum:

–If an individual had been reported in that method, then that individual would have been reported as a result of making a public statement expressing a particular opposition.

John Paul Stevens:

Well, no, I am saying he is not… he is just opposed to being registered himself.

He might get up and make a speech and say, I think the draft is great for everybody else, but nobody can catch me because they don’t have an enforcement policy.

Mark D. Rosenbaum:

No.

John Paul Stevens:

Someone might be offended by that and call the–

Mark D. Rosenbaum:

No example of that in the record.

In fact, the record is to the contrary.

John Paul Stevens:

–Do we know about most of these 1,000 people?

That is what I am wondering about.

Mark D. Rosenbaum:

We know that the government understood from the outset that these would be the individuals who would be either writing the President or who would be speaking out and would be making religious or moral objection.

We also know another thing, and that is–

John Paul Stevens:

The thing that puzzles me… I don’t mean to debate with you.

The thing that puzzles me is about 90 some percent of this 1,000, who were not all that morally opposed to it, when the chips were down, they decided to sign up?

Mark D. Rosenbaum:

–Well, the fact that they may have changed their mind when the chips were down, the fact that these were the most fervent believers, the most fervent dissenters, doesn’t mean that the remainder of that 1,000 had not also expressed their dissent.

It indicates just as you state, Justice Stevens, that when the crunch actually came, and when they were asked whether or not they wanted to be prosecuted, that they said that they would rather register at that point in time, but that doesn’t mean–

John Paul Stevens:

You are assuming that these other 900 all made precisely the same kind of public speeches as the 13, and if that is true, then they were not indicted because of their speech, because they were permitted to register, so the speech really becomes irrelevant.

Mark D. Rosenbaum:

–No.

John Paul Stevens:

If you assume they all said the same thing as the 13.

Mark D. Rosenbaum:

What we are concerned about, Justice Stevens, is an enforcement system.

The fact is that the big policy that we are discussing right now was not applied to any other individual who had not exercised speech.

The government says, these individuals were like civil contemners.

They had a key to the jail that they could always unlock.

But the point of this case, the constitutional vice is that we have a speech-activated, content-based enforcement system for which nonprotesting nonregistrants never had any doors to unlock.

What the government said by virtue of this enforcement policy, more than a prosecutor policy, but an enforcement policy, was to give what had to be understood as a guarantee, that silence would be golden, that failure to register would not be of concern to this government, that individuals would not be brought into the sweep of either the beg policy or the–

William H. Rehnquist:

But isn’t that a perfectly legitimate position for the government to take, to say that so far as violators of the law are concerned, silence is golden, that it is more important for the government as a law enforcement policy to prosecute violators who publicly proclaim their violation then violators who don’t publicly proclaim their violation?

Mark D. Rosenbaum:

–If this were a reasonable enforcement system, indeed, if this were an enforcement system as for every other law in the United States that I am aware of, your argument would be correct, Justice Rehnquist.

William H. Rehnquist:

But you know, there aren’t a whole bunch of drug pusher that are getting up and saying, I oppose the drug laws.

It is just in areas like this that you get people publicly proclaiming their opposition.

Mark D. Rosenbaum:

Yes, and that is precisely the point.

William H. Rehnquist:

So you say if the government applied this policy in all other areas, is there any evidence that it doesn’t apply it in other areas?

Mark D. Rosenbaum:

Yes, there’s absolutely no evidence that it is applied in other areas, but the–

William H. Rehnquist:

Well, you say there is no evidence that it is applied in other areas.

I asked you if there is any evidence that it isn’t applied in other areas.

Mark D. Rosenbaum:

–I would affirmatively state that it is not applied in any other area, and the–

William H. Rehnquist:

In other words, that there are examples of other kinds of law violators who get up and publicly proclaim they are violating the law, and the government nevertheless does not apply a passive policy?

Mark D. Rosenbaum:

–Yes.

Absolutely not, Justice Rehnquist.

William H. Rehnquist:

What areas are these?

Mark D. Rosenbaum:

There are a variety of areas for individuals such as the O’Brien statute.

William H. Rehnquist:

That was, what, 20 years ago?

I mean, I am talking about present day government policies.

Mark D. Rosenbaum:

There would be other areas where an individual might state a difference, but–

William H. Rehnquist:

You say might, but I thought you said a minute ago that you affirmatively stated that the government didn’t apply the same policy in other areas.

Mark D. Rosenbaum:

–The difference… it does not… the government applies in no other area, Justice Rehnquist, in the way of answering your question, an enforcement policy that absolutely doesn’t apply to individuals that don’t speak up.

The crux of your statement–

William H. Rehnquist:

What are other areas, Mr. Rosenbaum, in prosecuting a federal law violation other than Selective Service where individuals do speak up?

Mark D. Rosenbaum:

–Well, there may be… in a Census statute.

There may be a variety of other areas where individuals can express political dissent, but it is that difference that is really the First Amendment issue here.

That is, what was implicit in the deterrent statement that you indicate.

That is, it makes sense to prosecute a visible individual because of the message to other individuals.

Certainly isn’t that an appropriate government selection process.

That only makes sense if in fact all other individuals know that there is a possibility that they may be investigated or prosecuted.

In this case, what was deterred was not noncompliance, but in fact what was invited was a quiet breaking of the law.

As I indicated to Chief Justice Burger, the government itself acknowledged that though there were religious and political objectors, there were also a variety of other reasons.

William H. Rehnquist:

But surely the government can move one step at a time, and feel that its of primary importance with a limited budget to get the vocal people, and then if they successfully prosecute a few of them, undoubtedly there would be other remedies brought to bear.

Mark D. Rosenbaum:

No, I would disagree with you, Justice Rehnquist.

In the area of the First Amendment, where the palpable result, the predicted, inevitable, inherent result is a violation of the special burdening of First Amendment rights, the government cannot go one step at a time.

The government may not single out those protesters.

Moreover, if we apply… determine whether or not there is a close fit, whether or not in fact what you indicate is true, which is, people will see the vocal prosecutor, vocal persons being prosecuted.

They will then come into line.

The issue before the Court is whether this deterrent system will result in more deterrence than any other system.

Obviously, if an individual is prosecuted, any individual, for any reason, there is going to be some deterrent effect, but where the government is moving–

William H. Rehnquist:

Well, surely the government has a great deal of discretion.

It doesn’t have to pick out the system that will deter most people.

It probably can’t even know that in advance.

Mark D. Rosenbaum:

–The government can pick out any system it chooses, as long as it does not select a content-based, speech-activated system that only singles out for investigation and prosecution individuals who state their protests to the government, and a system which says to everyone else, if you are silent, if you do not exercise your First Amendment rights, you will be absolutely guaranteed that you will not be investigated or prosecuted.

Warren E. Burger:

Did the government ever do anything like that?

Mark D. Rosenbaum:

Excuse me?

Warren E. Burger:

Did they ever do anything like that?

Mark D. Rosenbaum:

That is precisely what the government has done in this particular case.

The government has said–

Warren E. Burger:

Where do we find that in the record?

Mark D. Rosenbaum:

–The government acknowledged in the record that the only individuals that in fact would be selected would be, to use the government’s words, individuals who were vocal proponents of nonregistration–

Warren E. Burger:

Suppose these people who were concerned about… started a campaign and said that everyone who is opposed to this draft would meet down at the memorial where the Vietnam names are listed, and we will hold a demonstration, and so 10,000 young people, young men show up there.

And the Department of Justice says, get indictments out on 500 of the people who are in this area.

Warren E. Burger:

There might have been some from Maryland, and some from Virginia, but get out 500 indictments to show that the government can’t be intimidated, and they put that in a memorandum.

What would your view be?

Are they being indicted because they exercised a First Amendment right or because they violated the law?

Mark D. Rosenbaum:

–First, the intent of the government is not what is critical.

It is the effect on the First Amendment rights.

If the issue, and if in the hypothetical that you are giving the individuals are being singled out not because of their speech, that is, there is not a Brandenburg type problem, but they are being singled out because they are visible, the government wants to make an example.

That is an appropriate exercise of prosecutorial discretion, but only if there is a general deterrent policy that says to all other individuals, those that don’t go down to the memorial, you may be prosecuted, too.

Where the message is, if you go down to the memorial you will be prosecuted, if you do not, you will not be investigated or prosecuted, that is an impermissible violation on the First Amendment.

That is a violation that says that if you are silent, if you just break the law but are quiet about it, you will not be prosecuted, and that is peculiarly a content-based, speech-activated system that would be impermissible under the First Amendment.

Sandra Day O’Connor:

Well, Mr. Rosenbaum, somebody who vocally protests the draft but registers is not prosecuted, right?

Mark D. Rosenbaum:

Excuse me?

Sandra Day O’Connor:

Someone who vocally protests the draft but nevertheless registers is not prosecuted under this policy.

Mark D. Rosenbaum:

Yes, but the issue in the case is not–

Sandra Day O’Connor:

And so it does appear as though what the government is doing is prosecuting those who don’t register under their policy of giving people a chance to register and not be prosecuted.

Mark D. Rosenbaum:

–The issue in this case is not whether registrants are permitted to speak out.

Obviously, registrants can speak out.

The constitutional vice here is that among the pool, among the body of nonregistrants, those individuals who are not registering, whether or not the government can use an enforcement system that singles out for prosecution only those that exercise their petition and speech.

The fact that there may be 700,000 people out there who register and then speak out against the draft is not the concern.

It is whether or not it can establish a First Amendment trip wire so that everyone else who doesn’t exercise that speech in fact knows that they will be guaranteed from prosecution.

If the Court has no further questions, I would like to reserve the remainder of my time for rebuttal.

Warren E. Burger:

Very well.

Mr. Solicitor General.

Rex E. Lee:

Mr. Chief Justice, and may it please the Court, I want to correct any misimpression that might exist as to the facts of this case, particularly how this program operated, some of the problems that the government raised, and how it went about solving them.

I do so against the background of the well established principle that the selection of prosecutorial choices lies at the heart of the executive responsibility to see that the laws are faithfully executed.

The issue in this case is not whether someone else can see another way that the government might have gone about its responsibility to enforce the draft registration laws.

Basically there were three options that were available to the government, and all three were considered.

The three were, first, sometimes called the active method, was to identify the entire universe of persons who were required to register, match those against those who had registered, and then make a random selection out of the difference between those two groups, who would be the nonregistrants, and prosecute those who were randomly selected.

The second option, which is sometimes referred to as the passive method, was narrower in scope and less expensive, would have been simply to prosecute those who the government knew were violators from information that had been supplied either by them or by someone else.

What the government in fact elected was to develop an active system, knew that it would take some time to develop the active system.

In fact, it took longer than the government anticipated it would take to develop it, with a passive program in effect during the interim while the active method was being developed.

Rex E. Lee:

Mr. Rosenbaum is just quite wrong when he says that the active system, that there was undue delay in developing it.

As set forth at Page 7 of our brief, there was a computer program that had been developed and was ready to go as early as March of 1982.

One of the petitioner’s main errors, I submit, is his assertion that during this passive phase interim, the event which triggered further prosecution was criticism or dissent.

The uncontradicted evidence in this record, which is discussed at Page 13 of our brief, shows that in fact the trigger was evidence of nonregistration.

No matter how vehement the letter of protest, no matter how many speeches the individual gave, that activity would result in further investigation only if it included the one thing, the only thing that the government was looking for, and that was some evidence of the sole piece of information which the government was interested in.

William H. Rehnquist:

What you are saying then is that the government received a number of letters complaining, or protesting the policy of the draft which did not announce that the writer was eligible for registration and refused to register, and the government did not investigate whether or not there might be liability for registration on the part of a writer who did not state that he–

Rex E. Lee:

Precisely.

That kind of person did not become one of the 1,000 who was investigated further.

John Paul Stevens:

–I thought there were some in the group who after investigation it was determined they were over age, or something like that.

Rex E. Lee:

Yes, that is correct, but in the initial letter, they might have said, I am not going to register for the draft, and that would put them into the pool of 1,000, but it is true that–

John Paul Stevens:

They might have said it even though they weren’t required, is what you are saying.

Rex E. Lee:

–That is correct.

That is correct.

The way it worked was that the–

Sandra Day O’Connor:

General Lee, did the pool also include those reported by third parties?

Rex E. Lee:

–It did, Justice O’Connor.

Sandra Day O’Connor:

Does the record tell us how many people would be included?

Rex E. Lee:

Yes, it does, and that’s about the only thing that the record tells us about those 1,000 people, is that a little over half of them were third party reported.

And it also tells us, of course, how they got on that list, and as I say, it was only if there was some evidence of the only piece of information that the government was looking for, which was evidence of nonregistration by a male of draft age.

Now, once we had that information, that put them into the pool, and eventually that pool was in excess of 1,000 people, and it was kept by Selective Service.

John Paul Stevens:

May I ask just while you are right on that point–

Rex E. Lee:

Yes.

John Paul Stevens:

–General Lee, the 500 or so that are third party reported, your adversaries say, well, they really are not different, because they were only third party reported because they were vocal in the first instance, so they really should be treated alike.

Rex E. Lee:

There is nothing in the record that would shed any light on that one way or the other.

Now, once Selective Service got its pool of names, the first thing that Selective Service did was to send one of these registration in lieu of prosecution letters, and from that initial screening process the number was narrowed down to about 133.

Those were then sent to the Department of Justice, and the U.S. Attorney would send at least one letter advising once again of the registration in lieu of prosecution alternative, and then in most cases, including the petitioner Wayte, there was also a visit from an FBI agent advising him finally of this so-called beg policy.

Now, it is not surprising under these circumstances that the only person who would be prosecuted as a result of this process would be protesters, but the only reason that it is not surprising is because the government went the extra mile to attempt to implement what has been its policy throughout, as we argued last April in the Selective Service case, and that is not to put people in jail, but to get them registered.

It would be the ultimate irony if the fact that we were willing to go that extra mile to get people registered instead of put in jail would result in the entire process being held unconstitutional, and yet that is the only argument that the petitioner has, is this kind of ultimate effects test.

I submit that the key to decision in this case is to make a clean distinction between two separate activities, criticism of the draft and registration for the draft.

Criticism is constitutionally protected and any governmental impingement on it can be sustained only if it satisfies the requirements that this Court has identified.

Rex E. Lee:

Nonregistration, by contrast, enjoys no constitutional protection.

Governmental burdens on a person’s desire not to register are irrelevant to the First Amendment.

No one in this courtroom disputes that David Wayte has violated the law.

He is legally obligated to register for the draft, and in refusing to do so he has committed a crime.

So that the only question is whether there is something about the fact that the government has prosecuted only him and a few others like him, but not all, that precludes the government from calling this petitioner to account for his acknowledged violation.

Now, I must confess that I am confused concerning just what the petitioner’s position is with respect to selective prosecution.

It is not one of the questions presented.

I do not find it argued in the brief.

Nevertheless, in our view, it is the only legitimate constitutional question that is before the Court.

We think this is not a legitimate First Amendment issue.

I will discuss briefly first the selective prosecution issue, and then the First Amendment issue.

Building on this Court’s statements in Cyler versus Boles and other cases, the Courts of Appeals have adopted a two-part test with which, so far as I can determine, no court disagrees.

It has never been formally adopted by this Court.

We would urge its adoption by this Court.

We think it represents just the right balance between, on the one hard, wide room for the exercise of prosecutorial discretion that this Court has frequently said the government must have, and on the other hand, preserving the opportunity for a legitimate showing of improper selection in a particular case.

It is a two-part test.

First, the defendant must show that he was chosen for prosecution, although others similarly situated were not, and second, he must show that the prosecutor intentionally discriminated against him on the basis of some impermissible consideration such as race, religion, or the exercise of a constitutional right.

It is that second prong of the selective prosecution test that gives adequate opportunity, adequate protection for the exercise of First Amendment rights.

Briefly, with respect to the first prong, petitioner simply has not shown that others similarly situated have not been prosecuted.

This case is different insofar as similarly situated is concerned.

Justice Rehnquist asked the question, have there been other circumstances where people have announced their protest and then been prosecuted, and the answer is yes, there have.

Tax protester cases are such cases.

The air traffic control strike cases were such cases.

We have universally won those cases in the lower courts except where the government’s conduct has been found to violate the rather broad discretionary standards that are given by this test.

But this case is different.

This is simply not a hard selective prosecution case.

And the reason this case is different from the tax protester case and the air traffic controller case is in both of which contexts our conduct has been upheld because of the fact that we get the most, if you will, bang for the buck out of prosecuting the most vocal protesters, is that in this instance we prosecuted everyone similarly situated.

Now, in the nature of things, we cannot prosecute those who we do not know have violated the law.

And at the end of this screening process, there were only eventually 17 people, 13 as of the time of the trial in this case, whom we knew had violated the law, and we prosecuted every one of them.

There was absolutely no discrimination.

Rex E. Lee:

With regard to the second prong, I simply submit that there was no violation, that the Court of Appeals finding is correct, and in any event, that there has not been any violation of the First Amendment of any kind, and it is to that issue that I now turn.

The petitioner’s contention that his prosecution violates the First Amendment depends totally on the significance that he ascribes to the fact that all of the men who have been prosecuted had one thing in common.

They had all expressed opposition to the draft.

In fact, however, those who were prosecuted also have a second thing in common, and that is as to each of them we knew who they were.

Two facts, both uncontroverted, make it very clear that it was the second of these common denominators and not the first that constituted, to use the petitioner’s term, the trip wire for prosecution.

The first is that during the passive phase interim, which incidentally lasted about 15 months, the event which placed a young man on the list for further investigation was his criticism.

No matter how vehement the protest, no matter how extensive the protest, it was only if he included that one magic sentence that got him initially into the pool of somewhat over 1,000.

And the second fact is that he could quickly get himself off that list by his own selection.

This was not, if you will, selective prosecution.

This was elective prosecution.

The so-called beg policy is relevant not only because it sheds light on the government’s objective.

It also draws the clean distinction between the two factors that must be distinguished in this case, registration on the one hand and protest on the other.

Regardless of what the individual might have done in the past, he is free both to register for the draft, as everyone concedes he is legally obligated to do, and also continue to protest, so long as he registers.

Late registrants who spoke against the draft were not prosecuted, and prosecutions were brought against every identified nonregistrant who refused to comply.

Just one final point.

Even if this were a First Amendment case, even if you could get by the First Amendment threshold, in this instance, there is no suppression of speech, incidental or otherwise.

For reasons discussed in our brief, we believe that the relevant First Amendment inquiry is stated by this Court in United States versus O’Brien 16 years ago, and reaffirmed twice just last term in the Jaycees case and in the CCNV Sleeping in the Park case, that incidental restraints on First Amendment interests are permissible so long as what government is attempting to do is, and I am quoting from both Roberts and the Sleeping in the Park case,

“unrelated to the suppression of expression. “

In this case, there is no suppression speech, incidental or otherwise, and the reason is that these two activities, registration and protest, can exist side by side, contrasted in that respect with the Jaycees case.

The attainment of Minnesota’s antidiscrimination objective as expressed in its statute necessarily affected the associational interests of the Jaycees.

Either Minnesota’s interest in combatting discrimination or the Jaycees’ associational interest had to yield, and that is what brings about a First Amendment problem, when one of them necessarily has to yield to the other.

The same was true in Sleeping in the Park.

The same was true in O’Brien.

And I submit that the same is true in every other legitimate First Amendment case.

The feature of true First Amendment cases that brings the First Amendment into play is the fact that the very act of accomplishing the governmental objective necessarily affects First Amendment activity.

But here, so long as the protester complies with the legal duty which even he does not dispute, he is free to criticize, and even if he does not register, he is free to criticize.

He will be prosecuted, but it will not be for not registering, because it did not depend on the substance of anything that was said other than the reporting of a violation.

So that the only incremental risk, the only component of his speech that puts him at all at risk is that single component of his speech that identifies commission of a crime, and there is nothing in the First Amendment, nothing in the Fifth Amendment, and nothing in the Constitution that protects against the government’s use of that information.

Unless the Court has further questions, I have nothing else.

Warren E. Burger:

Do you have anything further, Mr. Rosenbaum?

Mark D. Rosenbaum:

I do, Mr. Chief Justice.

I want to join issue with General Lee in the sense that what is in fact involved in this case is the relationship between criticism and the registration act itself with respect to the individuals that were singled out by this system.

If this Court finds that there is no relationship that exists there, that in fact all the individuals who were singled out for investigation or prosecution or the majority of them were individuals who were not at the same time expressing a political opposition to the draft registration and in fact expressing it not only through stating their objection but through the additional statement of saying that they were not registered.

What General Lee is indicating in his statement is that that statement itself, that I will not register, is both not protected by the First Amendment and additionally that it adds nothing, either in a cognitive sense or in an emotive sense, to the message that is being communicated.

It is as if the government wants to extract that statement out and tell David Wayte, you may say to the government, you may say to the government, I oppose this system in an abstract sort of way, but if you go a step further, and if you want to communicate the additional intimate personal message that I believe in that so strongly that I will not register, I will not register for the draft, then an enforcement system will be activated, and that is the only way that this system will be activated.

What General Lee has not denied is that either with respect to the individuals who were prosecuted or the individuals against whom the beg policy was applied, that the only individuals against whom it was applied were those who made some sort of expression of First Amendment activity.

If this were an active beg policy–

John Paul Stevens:

May I ask one question here?

Mark D. Rosenbaum:

–Sure.

John Paul Stevens:

How could the government cure its mistake, accepting your theory of the whole case?

If they were then willing to adopt an active enforcement policy and indict 700,000 people, could they then indict your clients?

Mark D. Rosenbaum:

Well, they don’t have to indict as many as 700,000.

John Paul Stevens:

They require everybody to register by enforcing the beg policy, they find everybody, and your people still refuse to register.

Can they then indict your people?

Mark D. Rosenbaum:

Yes, as long as we look at that policy and say that it can be applied to both those who speak out and those who don’t speak out, the policy is sound.

It is the same thing as in the Minneapolis case, where this Court struck down a tax because it specially disadvantaged the newspaper.

John Paul Stevens:

Well, you are not going to persuade me on the tax case.

There are a lot of different things about that case.

But in this particular case, if they make enough people register, then they can prosecute your clients?

Is that your point?

Mark D. Rosenbaum:

That’s correct.

If they enforce the law against individuals not on a speech-activated, content-based rationale.

If that is not the only way that individuals can be identified, forced to register, or face prosecution, obviously the system is no specially disadvantaging the First Amendment.

John Paul Stevens:

You would apply this… it is not the fact that it is a draft case.

You would apply it if it was smoking in the elevators, or bootlegging, the same thing if they had a policy that we only prosecute people for smoking in the elevator if it comes to our attention.

That is equally protected.

Mark D. Rosenbaum:

Well, I don’t think smoking in the elevator–

John Paul Stevens:

There are people who feel very strongly about the right to smoke.

0 [Generallaughter.]

Mark D. Rosenbaum:

–If this Court held that that was an exercise of First Amendment rights, certainly that–

John Paul Stevens:

What if he writes a letter in exactly the same pattern, but it is a different violation?

Mark D. Rosenbaum:

–Yes, and that is in response to Justice Rehnquist’s point before.

That is, the government has a whole variety of offenses, not only tax and census and the other matters that were mentioned, but in every crime there are individuals who stand up and confess, and they are prosecuted.

The point is really a dual one, first, that they are prosecuted because their speech… their speech is not political in all senses.

That is, there are people who confess out of a sense of contrition, a sense of guilt.

In addition, the enforcement system in those instances is not strictly limited to those who get up like Roskolnokov and say, I confess out of guilt.

It is an across the board policy–

Warren E. Burger:

I think you have answered the question.

I think you have answered the question now, Mr. Rosenbaum, but I have one more.

Suppose the State of Virginia passes a statute that has been proposed in many states requiring the registration of all handguns, and quite a number of people who are active in the NRA and otherwise think that there is a constitutional right, so they make speeches, and they take activities, and they won’t register because they have moral and constitutional objections to it.

Prosecution?

Mark D. Rosenbaum:

–I assume in your system you are indicating that these individuals would identify themselves by writing the Governor of the State of Virginia or speaking out.

Those individuals–

Warren E. Burger:

Right, and a lot of their neighbors who think handguns ought to be registered write a letter to the local prosecutor and say, why aren’t you going after this fellow?

Mark D. Rosenbaum:

–Yes.

Warren E. Burger:

And so they indict him.

Mark D. Rosenbaum:

As long as that system had, as Justice Stevens indicated, a component that would say, not only those people who are speaking out can be prosecuted.

The government may not only prosecute or investigate those individuals.

It may make them a priority for nonspeech reasons.

Warren E. Burger:

How are you going to find out who has a handgun in his house that is not registered?

It is pretty difficult, isn’t it?

You can’t have a general warrant to locate all these handguns and then prosecute the people who haven’t registered them.

So they go after the people who are identified by letters coming in and other methods.

Do they get immunity on your theory?

Mark D. Rosenbaum:

There are two answers to that, Chief Justice Burger.

First, with respect to the handgun example itself, there is no indication that eyewitnesses couldn’t spot an individual with a handgun.

There would be no situation, as in this case, that if an individual decided to be silent, would be quiet, that that individual could absolutely guarantee that they would not be found out.

But the second point is actually a larger point, and more critical here, and that is that unlike the Virginia handgun situation, this government had alternative enforcement systems, alternative enforcement systems that were available, as the District Court found, from the very beginning.

And if the government didn’t know who these other individuals were at the time it selected David Wayte, it was because it deliberately elected not to know.

It deliberately elected not to go after anyone except those individuals who exercised their First Amendment rights.

Warren E. Burger:

Thank you.

Thank you, gentlemen.

The case is submitted.