US SUPREME COURT DECISIONS

A July, 1980, Presidential Proclamation directed certain young male citizens to register with the Selective Service System during a specified week. Petitioner fell within the prescribed class, but did not register. Instead, he wrote letters to Government officials, including the President, stating that he had not registered and did not intend to do so. These letters were added to a Selective Service file of young men who advised that they had failed to register or who were reported by others as having failed to register. Subsequently, Selective Service adopted a policy of passive enforcement under which it would investigate and prosecute only the nonregistration cases contained in this file. In furtherance of this policy, Selective Service, in June, 1981, sent a letter to each reported nonregistrant warning that a failure to register could result in criminal prosecution. Petitioner received such a letter, but did not respond. Thereafter, Selective Service transmitted to the Department of Justice, for investigation and potential prosecution, the names of petitioner and others identified under the passive enforcement policy. The Department of Justice, after screening out those who appeared not to be required to register, referred the remaining names to the Federal Bureau of Investigation and appropriate United States Attorneys. Petitioner's name was one of those so referred. Then, pursuant to the Department of Justice's so-called "beg" policy, whereby United States Attorneys, assisted by the FBI, made an effort to persuade nonregistrants to change their minds, the United States Attorney for petitioner's district sent him a letter urging him to register or face possible prosecution. Again petitioner failed to respond. Nor did he register during an authorized grace period or after further urging by FBI agents to do so. Accordingly, he was indicted for knowingly and willfully failing to register in violation of the Military Selective Service Act. The District Court dismissed the indictment on the ground that the Government had failed to rebut petitioner's prima facie case of selective prosecution. The Court of Appeals reversed, holding that, although petitioner had shown that others similarly situated had not been prosecuted for conduct similar to his, he had not shown that the Government focused its investigation on him because of his protest activities. chanrobles.com-red

Page 470 U. S. 599

Held: The Government's passive enforcement policy, together with its "beg" policy, did not violate either the First or Fifth Amendment. Pp. 470 U. S. 607-614.

(a) Selective prosecution claims may appropriately be judged according to ordinary equal protection standards. These standards require petitioner to show both that the passive enforcement policy had a discriminatory effect and that it was motivated by a discriminatory purpose. Petitioner has not met this burden. All he has shown is that those eventually prosecuted, along with many not prosecuted, reported themselves as having violated the law. He has not shown that the enforcement policy selected nonregistrants for prosecution on the basis of their speech. The fact that the Government prosecuted those nonregistrants who reported themselves or who were reported by others demonstrates that the Government treated all reported nonregistrants equally, and did not subject vocal nonregistrants to any special burden. But even if the passive policy had a discriminatory effect, petitioner has not shown that the Government intended such a result. Absent a showing that the Government prosecuted petitioner because of his protest activities, his claim of selective prosecution fails. Pp. 470 U. S. 607-610.

(b) With respect to the First Amendment, Government regulation is justified if (1) it is within the Government's constitutional power, (2) it furthers an important or substantial governmental interest, (3) the governmental interest is unrelated to the suppression of free speech, and (4) the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. United States v. O'Brien, 391 U. S. 367. In this case, neither the first nor third requirement is disputed, and the passive enforcement policy meets both the second and fourth requirements. The reasons the Government offers in defense of the passive enforcement policy -- it promotes prosecutorial efficiency, the nonregistrants' letters to Selective Service provided strong evidence of their intent not to comply, and prosecution of visible nonregistrants was an efficient way to promote general deterrence -- are sufficiently compelling to satisfy the second requirement as to either those who reported themselves or those who were reported by others. The passive enforcement policy meets the fourth requirement, for it placed no more limitation on speech than was necessary to ensure registration, and was the only effective interim solution available to carry out the Government's compelling interest. Pp. 470 U. S. 610-614.

710 F.2d 1385, affirmed.

POWELL, J., delivered the opinion of the Court, in which BURGER, C.J.,and WHITE, BLACKMUN, REHNQUIST, STEVENS, and O'CONNOR, JJ., chanrobles.com-red

Page 470 U. S. 600

joined. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 470 U. S. 614.