Justices Uphold Selective Draft Resister Prosecutions

The Supreme Court ruled Tuesday that the government may lawfully choose to prosecute only those young men who openly or publicly refuse to register for the draft, rejecting claims that such a policy violates freedom of speech.

The court, in a 7-2 decision, upheld the constitutionality of a since-revised Justice Department policy of prosecuting only those who publicized their refusal to register.

The justices cleared the way for the prosecution of David Alan Wayte, a 24-year-old former Yale University philosophy student from Pasadena, Calif., rejecting his argument that he was the victim of improper “selective prosecution” because of his vocal opposition to draft registration.

Those like Wayte, the court said in an opinion by Justice Lewis F. Powell Jr., effectively “selected themselves” for prosecution by openly refusing to register and ignoring subsequent government warnings. And any limit on the right of free speech was justified in those circumstances by national security needs, the court said.

“It is well to remember that freedom as we know it has been suppressed in many countries,” Powell wrote. “Unless a society has the capability and will to defend itself from the aggressions of others, constitutional protections of any sort have little meaning.”

It was the third time in recent years that the justices have approved the nation’s draft laws. In 1981, they upheld the draft itself, rejecting the argument that it was unconstitutional because it included men but not women. Last year, they ruled that the government could deny federal educational assistance to male college students who failed to register for the draft.

Solicitor General Rex E. Lee, who argued Tuesday’s case for the government, called the ruling a “significant victory for law enforcement” that would provide useful guidelines for what does--or does not--constitute improper “selective prosecution.”

Wayte said in an interview at his mother’s Pasadena home that he still considers his decision not to register “a personal victory.”

“I’m sad that the Supreme Court ruled against me and didn’t recognize selective prosecution as a violation of my First Amendment rights,” he said. “But I feel that I’ve made a statement against war, against governmental intimidation and in favor of peace and free choice.”

He said that he had decided to “go public” about his opposition to registration because “it was the most honest way to confront the issue.” He added that he is “prepared to go to jail if I have to.”

Mark Rosenbaum of Los Angeles, the American Civil Liberties Union attorney who represented Wayte, expressed disappointment that the court had sanctioned a policy that he said seeks to “punish dissent” rather than failure to register.

In its decision, the court upheld the Justice Department’s so-called “passive enforcement” policy, which was in effect as an interim means to enforce draft registration under a law enacted in 1980 and signed by President Jimmy Carter. The department’s policy was seen, among other things, as a means of encouraging registration. The draft itself is not in effect, nor was it at issue in the case.

Only 18 young men have been indicted thus far for failing to register--with eight being convicted or pleading guilty, two winning dismissals and the rest awaiting trial. But, in the interim, registration has steadily increased.

In 1982, at the time Wayte was indicted, Selective Service officials reported that, of the more than 9 million men required to register, 674,000--about 7.5%--had not done so. A spokesman for Selective Service said Tuesday that, currently, of 13.9 million now required to be registered, only 166,000--or less than 2%--had not done so.

New System ‘Effective’

The “passive enforcement” policy has been replaced by an “active” policy in which authorities seek out non-registrants--admitted or not--and inform them that they may be prosecuted. A Justice Department spokesman said the new system had been “very effective” in obtaining registration without having to bring charges.

In August, 1980, Wayte wrote to Carter and the Selective Service, saying that he would never register for the draft because he must “obey my conscience” rather than the law. Six months later, he wrote to draft officials again, saying that he had received no reply to his first letter, “much less any news about your much-threatened prosecutions.”

He said that he would keep Selective Service informed of his whereabouts as he traveled about the nation “encouraging resistance and spreading the word about peace and disarmament.”

Subsequently, Wayte and nearly 300 others who said that they would not register--or who were reported by others as intending not to register--were notified by letters from U.S. attorneys that they might be prosecuted. FBI agents were dispatched to interview most of the young men. Then, in January, 1982, President Reagan announced a grace period to afford non-registrants another chance to comply with the law. Finally, in July, 1982, Wayte was indicted.

Indictment Reinstated

Wayte sought dismissal of the indictment, charging that he and the 12 other “vocal” non-registrants then facing charges had been improperly targeted out of the 674,000 who had not then registered. U.S. District Judge Terry J. Hatter Jr. of Los Angeles upheld Wayte’s contention, but the U.S. 9th Circuit Court of Appeals in San Francisco reversed the decision, reinstating the indictment.

In its ruling Tuesday (Wayte vs. U.S., 83-1292), the court found that Wayte had not been able to show that he was indicted simply because of his protest activities. He and others who wrote letters or otherwise publicly declared their refusal to register had then been given a fair chance to sign up, the court noted.

Neither did the government’s action impermissibly infringe on Wayte’s First Amendment rights, the court found. The government was protecting an important national interest, and its minimal restriction on Wayte’s freedom of speech was no more than was essential under the circumstances, the justices said.

In dissent, Justice Thurgood Marshall, joined by Justice William J. Brennan Jr., said that Wayte--in his attempt to show improper selective prosecution--should have been granted greater access to internal government documents concerning its draft-registration policies.

Powell Recuperating

Chief Justice Warren E. Burger announced the court’s judgment in the absence of Powell, who is still recuperating from an operation on Jan. 4 for cancer of the prostate. Court officials say that Powell hopes to return to hear cases later this month.

Staff Writer Marita Hernandez contributed to this story.