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U.S. Prosecution of Draft Nonregistrant Hinges on 'Trip Wire,' Lawyer Argues

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Washington--A lawyer for a former Yale University student argued before the U.S. Supreme Court last week that the federal government brought charges against his client not because he refused to sign up for the draft but because he vocally opposed draft registration.

According to Mark D. Rosenbaum, the former student's lawyer, a government policy that resulted in the indictment of David Alan Wayte and 12 other people who spoke out against draft registration represented an unconstitutional "First Amendment trip wire."

"The government can pick any system of prosecuting people that it wants so long as that system is not speech-activated or content-based," Mr. Rosenbaum said during arguments in Wayte v. United States (Case No. 83-1292). "A system of prosecution cannot say to those who remain silent, 'I guarantee that you won't be prosecuted."'

Extensive Noncompliance

At issue in the Wayte case is the government's decision in early 1981 to adopt a system to deal with extensive noncompliance with President Carter's July 1980 order requiring 18- through 20-year-old men to register for military conscription. Officials of the Selective Service System estimated in mid-1982 that while approximately 8.3 million men had complied with the order, some 674,000 had not. In papers filed with the Court, Mr. Wayte's lawyers said the number of nonregistrants could have been as high as 1 million.


The so-called "passive-enforcement" system adopted by the government involved the investigation of suspected nonregistrants whose identities came to its attention either by self-admission or by means of third-party reports. In late 1982 the government abandoned this system and adopted a new "active" enforcement policy involving the cross-checking of Selective Service records against the records of state drivers' license agencies and the Social Security Administration.

Mr. Wayte, who resides in California, became a focus of the 1981 investigation after he wrote two letters to the Selective Service System in which he confessed that he had not registered and said he would encourage others to follow his lead. All 13 men indicted as a result of the passive enforcement system had either written similar letters to government officials or had publicly expressed opposition to the registration order.

A federal district judge dismissed Mr. Wayte's indictment in November 1982, holding that he had been "selectively" prosecuted by the government in violation of the Constitution. The indictment, however, was reinstated by a divided panel of the U.S. Court of Appeals for the Ninth Circuit.

Content-Based System

The fact that only vocal opponents of draft registration were indicted under the passive-enforcement system indicated that it punished political speech protected by the First Amendment, Mr. Rosenbaum told the Justices. "The critical issue is whether the government can rely on an enforcement policy that is activated by political speech," he said. "The government was saying, 'Silence is golden."'

"Don't you acknowledge that the third-party reports could have resulted in prosecutions?" asked Associate Justice Sandra Day O'Connor.

"Only if you regard this case in6an abstract sense," Mr. Rosenbaum replied.

"Are you saying that the government has no right to prosecute someone who says 'I won't register'?" asked Associate Justice John Paul Stevens.

Mr. Rosenbaum replied that he had no objection to the prosecution of nonregistrants. "Our concern here is a policy of prosecution that is activated only against those who either wrote to the President or publicly voiced opposition to registration."

Main Error

The main error in Mr. Wayte's defense is that it presumes "that the event triggering prosecution was speech," the government's lawyer, Solicitor General Rex E. Lee, told the Justices. "The fact is that the event that triggered prosecution was evidence of nonregistration."

"This was not selective prosecution, it was elective prosecution," Mr. Lee asserted. "The only component of speech that puts a person at risk is that part of speech that identifies the person as having committed a crime. And there is nothing in the First or Fifth Amendment that prevents the government from using evidence of that sort."

The Court is expected to hand down its ruling in the case next spring.

In another development, a federal district judge in Tennessee last month upheld the constitutionality of a state law preventing men who have not registered for the draft from enrolling in the state's universities.

The lawsuit, Vogel v. Nicks, was brought by a 19-year-old conscientious objector who refused to sign his draft-registration card. He was denied admission this fall to Memphis State University.

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