470 U.S. 598, 607 (1985)
On July 2, 1980, President Carter signed Proclamation No. 4771 requiring males born in 1960 to register with the Selective Service System during the period July 21–August 2, 1980.1 David Alan Wayte, who fell within that class, did not register as required.2 Instead, he wrote several letters to Government officials, including the President, stating that he had not registered and did not intend to do so.3 His letters were placed in a Selective Service file of young men who advised that they had failed to register or who were reported by others.4
Selective Service adopted a policy of passive enforcement under which it would investigate and prosecute only the cases of nonregistration contained in this file of self-reporters and third-party reports.5 In June 1981, Selective Service sent a letter to Wayte explaining the duty to register and warning of criminal prosecution.6 Wayte did not respond to the letter.7 On July 20, 1981, Selective Service transmitted Wayte's name to the Department of Justice along with 133 others.8
The Department of Justice followed a "beg" policy, notifying nonregistrants by mail that prosecution would be considered unless they registered, and often sending FBI agents to interview them.9 Wayte received such a letter in October 1981 but failed to respond.10 After a presidential grace period ending February 28, 1982, during which Wayte still did not register, the Department decided to prosecute under the passive system.11 On June 28, 1982, FBI agents interviewed Wayte, who continued to refuse to register, leading to his indictment on July 22, 1982.12
Wayte moved to dismiss the indictment on the ground of selective prosecution, contending that he and other indicted nonregistrants were vocal opponents targeted because of their exercise of First Amendment rights.13 He sought broad discovery of government documents.14 The District Court for the Central District of California ordered discovery, found that Wayte had made out a prima facie case, and dismissed the indictment when the Government declined to produce the documents the District Court had ordered produced citing deliberative process privilege.15 The Court of Appeals for the Ninth Circuit reversed the dismissal.16 The Supreme Court granted certiorari to review the selective prosecution issue.17
Whether the Government’s policy of prosecuting only those who fail to register for the draft and who report themselves as having failed to register, or who are reported by others, violates the First and Fifth Amendments?18
The Government retains broad discretion as to whom to prosecute so long as probable cause exists.19 Selectivity in enforcement remains subject to constitutional constraints and may not be deliberately based upon an unjustifiable standard such as the exercise of protected constitutional rights.20 Selective prosecution claims are judged under ordinary equal protection standards that require proof of both discriminatory effect and discriminatory purpose.21 A direct First Amendment challenge to a policy combining speech and nonspeech elements is evaluated under the O'Brien test.22 The test requires that the regulation lie within the constitutional power of the Government, further an important or substantial governmental interest unrelated to the suppression of free expression, and impose no greater incidental restriction than is essential to the furtherance of that interest.23
No. The passive enforcement policy did not select nonregistrants for prosecution on the basis of their speech but rather on the fact that they had come to the attention of the authorities through self-reporting or third-party reports.24 Wayte wrote letters stating he had not registered and did not intend to do so, received warning letters from Selective Service and the Department of Justice, failed to register during the presidential grace period, and was interviewed by FBI agents before indictment on July 22, 1982.25 The Government prosecuted only those who persisted in nonregistration after being reported and warned, treating all reported nonregistrants similarly regardless of whether they protested publicly.26 The policy furthered the compelling interest in ensuring national security by identifying violators efficiently without active search costs, providing strong evidence of willful violation through the letters, and promoting general deterrence by prosecuting visible offenders.27
Passive enforcement was the only effective interim solution available while an active system using driver's license and Social Security matching was developed.28 The policy placed no more limitation on speech than was necessary, as it did not subject vocal nonregistrants to any special burden and was intended to be only an interim enforcement system.29
The Government's passive enforcement policy together with its beg policy violated neither the First nor Fifth Amendment.30
Whether Wayte made a sufficient showing of selective prosecution to be entitled to discovery of government documents?31
A defendant establishes the right to discovery on a selective prosecution claim by making a colorable basis or nonfrivolous showing that the essential elements of the defense exist.32 Sufficient facts must be alleged to take the question past the frivolous state.33 District court decisions on discovery matters are reviewed under an abuse-of-discretion standard that accords great deference to the trial judge's factual determinations and narrowly tailored rulings.34
No. Wayte presented internal Justice Department memoranda indicating awareness that prosecutions under the passive system would likely consist of vocal objectors and religious or moral opponents.35 The Court of Appeals held that the District Court's finding of a prima facie case was clearly erroneous because the evidence demonstrated only awareness of consequences rather than intent to discriminate because of speech.36 The memoranda explicitly recognized that the chance a quiet nonregistrant would be prosecuted was about the same as being struck by lightning.37 The majority did not reach the discovery issue because it was not properly presented on certiorari.38
The record shows the Government declined production on grounds of deliberative process privilege after the District Court applied the Nixon balancing test.39
Wayte did not make a sufficient showing of selective prosecution to be entitled to the discovery ordered by the District Court.40
Related opinions on this issue
Joined by Justice Brennan
Justice Marshall dissented on the ground that the case presented a discovery dispute rather than a final merits determination.41 He argued that Wayte had sustained his burden by presenting sufficient facts to take the selective prosecution claim beyond the frivolous stage.42 Marshall contended that the District Court applied the correct legal standard and did not abuse its discretion when it found a nonfrivolous showing entitling Wayte to discovery.43
He concluded that if Wayte is entitled to obtain evidence currently in the Government's possession, the Court cannot dismiss his claim on the basis of only the evidence now in the record.44