wayte
argued
november
decided
march
july
presidential
proclamation
directed
certain
young
male
citizens
register
selective
service
system
specified
week
petitioner
fell
within
prescribed
class
register
instead
wrote
letters
government
officials
including
president
stating
registered
intend
letters
added
selective
service
file
young
men
advised
failed
register
reported
others
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register
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service
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service
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respond
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service
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pp
powell
delivered
opinion
burger
white
blackmun
rehnquist
stevens
joined
marshall
filed
dissenting
opinion
brennan
joined
post
mark
rosenbaum
argued
cause
petitioner
briefs
dan
stormer
mary
ellen
gale
dennis
perluss
dan
marmalefsky
laurence
tribe
william
smith
burt
neuborne
solicitor
general
lee
argued
cause
brief
assistant
attorney
general
trott
deputy
solicitor
general
frey
mark
levy
john
de
pue
dennis
curtis
filed
brief
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committee
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objectors
et
al
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curiae
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curiae
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justice
powell
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opinion
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presented
whether
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law
reported
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first
fifth
amendments
july
pursuant
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military
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service
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amended
app
president
issued
presidential
proclamation
cfr
proclamation
directed
male
citizens
certain
male
residents
born
register
selective
service
system
week
july
petitioner
fell
within
class
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instead
wrote
several
letters
government
officials
including
president
stating
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intend
petitioner
letters
added
selective
service
file
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men
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penalties
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received
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letter
respond
july
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service
transmitted
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potential
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names
petitioner
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men
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justice
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agent
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persuade
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men
registered
late
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never
registered
investigated
government
pursuant
beg
policy
attorney
central
district
california
sent
petitioner
letter
october
urging
register
face
possible
prosecution
petitioner
failed
respond
december
department
justice
instructed
attorneys
begin
seeking
indictments
nonregistrants
notice
january
president
announced
grace
period
afford
nonregistrants
opportunity
register
without
penalty
grace
period
extended
february
petitioner
still
register
next
months
department
decided
begin
prosecuting
young
men
despite
grace
period
beg
policy
continued
refuse
register
recognized
passive
enforcement
system
prosecuted
liable
vocal
proponents
nonregistration
persons
religious
moral
objections
memorandum
march
lawrence
lippe
chief
general
litigation
legal
advice
section
criminal
division
department
justice
lowell
jensen
assistant
attorney
general
criminal
division
app
also
recognized
prosecutions
undoubtedly
result
allegations
case
brought
retribution
nonregistrant
exercise
first
amendment
rights
ibid
department
advised
however
selective
service
develop
active
enforcement
system
quite
time
see
infra
department
decided
begin
seeking
indictments
passive
system
without
delay
may
attorneys
notified
begin
prosecution
nonregistrants
june
fbi
agents
interviewed
petitioner
continued
refuse
register
accordingly
july
indictment
returned
knowingly
willfully
failing
register
selective
service
violation
military
selective
service
act
stat
amended
app
one
first
indictments
returned
individual
passive
policy
ii
petitioner
moved
dismiss
indictment
ground
selective
prosecution
contended
indicted
nonregistrants
vocal
opponents
registration
program
impermissibly
targeted
estimated
nonregistrants
prosecution
basis
exercise
first
amendment
rights
hearing
district
central
district
california
granted
petitioner
broad
request
discovery
directed
government
produce
certain
documents
make
certain
officials
available
testify
government
produced
documents
agreed
make
government
officials
available
citing
executive
privilege
withheld
documents
testimony
october
district
ordered
government
produce
disputed
documents
witness
government
declined
comply
november
asked
district
dismiss
indictment
order
allow
appeal
challenging
discovery
order
petitioner
asked
dismissal
several
grounds
including
discriminatory
prosecution
november
district
dismissed
indictment
ground
government
failed
rebut
petitioner
prima
facie
case
selective
prosecution
following
precedents
appeals
ninth
circuit
district
found
order
establish
prima
facie
case
petitioner
prove
others
similarly
situated
generally
prosecuted
conduct
similar
petitioner
ii
government
discriminatory
selection
based
impermissible
grounds
race
religion
exercise
first
amendment
rights
supp
petitioner
satisfied
first
requirement
district
held
shown
prosecuted
vocal
nonregistrants
inference
strong
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located
chose
district
found
second
requirement
satisfied
three
reasons
first
passive
enforcement
program
inherently
suspect
focuse
upon
vocal
offender
vulnerable
charge
chosen
prosecution
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expression
ideas
constitutionally
protected
right
quoting
steele
second
government
awareness
disproportionate
number
vocal
nonregistrants
prosecuted
passive
enforcement
system
indicated
petitioner
prosecuted
exercise
first
amendment
rights
finally
involvement
high
government
officials
prosecution
decisions
strongly
suggest
ed
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held
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prima
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showing
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held
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show
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focused
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evidence
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men
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recognized
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finding
evidence
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facie
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appeals
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legitimate
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government
passive
enforcement
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identities
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ii
nonregistrants
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selective
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iii
criminal
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retains
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goodwin
accord
marshall
jerrico
long
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probable
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jury
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strength
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value
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courts
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entails
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outside
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substantial
concerns
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noted
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bordenkircher
hayes
supra
quoting
oyler
boles
including
exercise
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see
goodwin
supra
appropriate
judge
selective
prosecution
claims
according
ordinary
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protection
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see
oyler
boles
supra
prior
cases
standards
require
petitioner
show
passive
enforcement
system
discriminatory
effect
motivated
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personnel
administrator
massachusetts
feeney
arlington
heights
metropolitan
housing
development
washington
davis
petitioner
shown
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selected
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wrote
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selective
service
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app
government
hand
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special
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intent
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decisionmaker
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upon
identifiable
group
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administrator
massachusetts
feeney
supra
footnotes
citations
omitted
present
case
petitioner
shown
government
prosecuted
protest
activities
absent
showing
claim
selective
prosecution
fails
iv
petitioner
also
challenges
passive
enforcement
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directly
first
amendment
grounds
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claims
ven
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protected
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justify
incidental
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amendment
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justified
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furthers
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substantial
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interest
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first
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greater
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freedom
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countries
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capability
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federalist
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long
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question
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quoting
lichter
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accord
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principles
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relying
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able
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reported
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sure
required
register
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search
actively
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final
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also
intended
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engaged
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investigated
petitioner
found
practicable
way
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names
current
addresses
likely
nonregistrants
eventually
obtained
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driver
license
records
social
security
files
took
time
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authorizations
set
system
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enforcement
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carry
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compelling
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think
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note
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matter
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implications
petitioner
first
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extend
strictly
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example
nonregistrant
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petitioner
view
government
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prove
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together
beg
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fifth
amendment
accordingly
affirm
judgment
appeals
ordered
footnotes
shall
duty
every
male
citizen
every
male
person
residing
day
days
fixed
first
subsequent
registration
ages
eighteen
present
submit
registration
time
times
place
places
manner
shall
determined
proclamation
president
rules
regulations
prescribed
hereunder
august
example
petitioner
wrote
president
selective
service
system
letter
president
stated
decided
obey
conscience
rather
law
register
draft
never
register
draft
ever
cooperate
military
system
despite
laws
might
break
consequences
may
befall
app
six
months
later
petitioner
sent
second
letter
selective
service
last
august
wrote
inform
intention
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draft
well
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still
plan
never
thus
far
received
reply
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prosecutions
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interpret
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meaning
busy
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track
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record
indicates
young
men
selective
service
referred
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justice
indicted
time
district
considered
case
march
three
men
indicted
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indicted
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registration
requirements
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continuing
investigation
record
indicate
many
fell
category
july
selective
service
stated
young
men
registered
estimated
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selective
service
prosecutions
oversight
hearing
subcommittee
courts
civil
liberties
administration
justice
house
committee
judiciary
amounted
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rate
approximately
percent
district
also
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various
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proclamation
improperly
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indictment
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appeals
ninth
circuit
reversed
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regulatory
claims
constitutional
claim
issue
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sees
central
case
whether
wayte
earned
right
discover
government
documents
relevant
claim
selective
prosecution
post
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issue
neither
raised
petition
certiorari
briefed
merits
raised
oral
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wayte
simply
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misleading
insofar
suggests
indicated
made
public
statements
opposing
registration
cases
statement
made
nonregistrant
prior
indictment
letter
government
declaring
refusal
register
one
judge
dissented
ground
passive
enforcement
system
represented
deliberate
policy
designed
punish
communicated
violation
law
others
schroeder
dissenting
finding
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procedure
focusing
solely
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offenders
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suspect
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burden
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intent
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compare
eklund
en
banc
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conviction
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pending
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pending
although
fifth
amendment
unlike
fourteenth
contain
equal
protection
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contain
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protection
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sharpe
approach
fifth
amendment
equal
protection
claims
precisely
equal
protection
claims
fourteenth
amendment
weinberger
wiesenfeld
showing
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intent
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protection
claim
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overtly
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strauder
west
virginia
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petitioner
argue
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wayte
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grand
jury
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directly
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believe
wayte
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example
although
dissent
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element
merely
whether
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member
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class
post
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discuss
infra
page
wayte
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whether
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member
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believe
wayte
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establish
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third
furthermore
even
assuming
wayte
make
kind
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facie
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beg
policy
rebut
dissent
also
argues
yick
wo
hopkins
decided
differently
approach
take
today
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belief
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intentionally
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pool
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case
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reported
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evidence
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intent
prosecute
individuals
exercise
first
amendment
rights
petitioner
alleges
passive
enforcement
policy
violated
right
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speech
right
petition
argue
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right
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view
claims
essentially
although
right
petition
right
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speech
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guarantees
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analysis
see
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note
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petitioner
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placed
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registration
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service
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obligation
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registration
matter
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registration
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strictly
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enforcement
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violation
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selective
service
act
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right
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foundation
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constitution
history
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selective
draft
law
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service
act
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amended
app
provides
criminal
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evad
refus
register
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prove
failure
register
knowing
boucher
rabb
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party
contests
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service
tried
use
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security
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addresses
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stale
law
gain
useful
access
internal
revenue
service
records
recognized
federal
source
generally
accurate
information
justice
marshall
justice
brennan
joins
dissenting
decides
today
petitioner
shown
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prosecuted
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obtain
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possession
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decision
order
understand
precise
nature
legal
question
important
review
detail
posture
case
comes
us
july
indictment
filed
district
central
district
california
charged
wayte
knowingly
willfully
failing
register
draft
september
wayte
moved
indictment
dismissed
ground
selective
prosecution
support
claim
presented
exhibits
internal
justice
department
memoranda
discussing
mechanism
prosecution
individuals
failed
register
draft
report
general
accounting
office
discussing
alternatives
registration
program
statement
director
selective
service
subcommittee
courts
civil
liberties
administration
justice
house
judiciary
committee
transcript
meeting
department
defense
military
manpower
task
force
according
wayte
evidence
supported
claim
government
designed
prosecutorial
scheme
purposefully
discriminated
chosen
exercise
first
amendment
right
oppose
draft
registration
wayte
argued
demonstrated
sufficient
facts
claim
selective
prosecution
entitled
evidentiary
hearing
issue
regard
wayte
moved
discover
variety
government
documents
asserted
relevant
selective
prosecution
claim
indicated
intention
subpoena
seven
witnesses
including
edwin
meese
iii
counsellor
president
september
district
found
motion
dismiss
indictment
ground
selective
prosecution
following
day
held
hearing
parties
presented
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wayte
discovery
requests
district
granted
wayte
requests
denied
others
ordered
government
submit
documents
camera
inspection
hearing
october
district
denied
government
motion
reconsideration
discovery
order
postponed
ruling
requested
subpoenas
preliminary
evidentiary
hearing
wayte
selective
prosecution
claim
hearing
held
october
two
witnesses
testified
david
kline
senior
legal
advisor
justice
department
criminal
division
richard
romero
assistant
attorney
central
district
california
principal
prosecutor
wayte
case
kline
testimony
dealt
extensively
justice
department
policies
prosecuting
individuals
violated
statute
nonevidentiary
hearing
october
district
ruled
portions
three
many
documents
submitted
camera
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defense
three
documents
question
previously
given
defense
expurgated
fashion
certain
parts
however
district
determined
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need
still
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materials
outweighed
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interest
nondisclosure
specifically
district
ordered
disclosure
two
sentences
one
paragraph
one
letter
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memoranda
district
also
indicated
documents
submitted
camera
review
redacted
manner
made
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less
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order
october
government
response
order
indicated
paragraph
later
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request
following
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appetite
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information
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motives
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record
doc
saga
continued
october
district
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camera
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form
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eventually
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order
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district
ordered
certain
portions
documents
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defense
list
documents
kept
seal
district
applied
standard
determining
whether
assertion
executive
privilege
valid
announced
nixon
determined
applying
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test
nixon
facts
finds
scales
justice
tip
decidedly
favor
defendant
right
review
several
documents
inspected
camera
government
generalized
assertion
deliberative
process
executive
privilege
must
yield
defendant
specific
need
documents
determined
must
released
mr
wayte
record
doc
government
refused
comply
district
order
october
explained
position
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interests
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connection
claim
privilege
sincerely
believe
shown
overridden
case
concur
conclusion
sufficient
basis
established
justify
requiring
appearance
testimony
official
senior
counsellor
president
contrary
finding
order
october
believe
record
amply
demonstrates
decisions
relating
prosecution
nonregistrants
made
within
department
justice
therefore
nexus
white
house
selection
defendant
prosecution
record
doc
made
findings
district
turned
merits
wayte
underlying
claim
found
wayte
gone
beyond
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standard
obtaining
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fact
made
prima
facie
case
selective
prosecution
result
burden
shifted
government
prove
policy
based
impermissible
motives
district
found
government
failed
rebut
wayte
prima
facie
case
appeal
appeals
ninth
circuit
government
conceded
event
triggered
dismissal
selective
prosecution
government
declination
following
surrender
presidential
documents
comply
orders
directing
certain
documents
furnished
defense
presidential
counsellor
edwin
meese
made
available
witness
brief
government
gave
two
reasons
refusal
comply
district
order
first
maintained
wayte
even
meet
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basis
test
trigger
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obligation
part
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second
argued
wayte
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particularized
need
privileged
materials
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substantial
outweigh
asserted
need
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confidentiality
government
acknowledged
district
applied
correct
standard
evaluating
claims
privilege
set
nixon
supra
government
however
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manner
district
weighed
relevant
factors
brief
ninth
circuit
wayte
argued
one
independent
basis
dismissal
indictment
government
refused
comply
district
lawful
discovery
orders
brief
appellee
pp
wayte
brief
clearly
stated
indictment
properly
dismissed
basis
alone
connection
wayte
argued
alleged
sufficient
facts
take
selective
prosecution
claim
beyond
frivolous
stage
district
orders
concerned
materials
relevant
claim
propriety
discovery
orders
must
reviewed
abuse
discretion
standard
district
abused
discretion
ordering
discovery
case
district
properly
rejected
government
claim
privilege
divided
panel
appeals
ninth
circuit
reversed
dismissal
wayte
indictment
writing
majority
judge
wright
focused
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merits
underlying
selective
prosecution
claim
concluded
record
wayte
failed
show
selected
prosecution
exercise
constitutional
rights
appeals
dealt
government
failure
comply
discovery
order
one
brief
paragraph
wayte
made
initial
showing
selective
prosecution
entitled
discovery
government
documents
access
documents
might
helpful
entitle
discovery
government
refusal
comply
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orders
justified
citations
omitted
ii
streamlined
account
stormy
proceedings
makes
clear
legal
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case
first
foremost
discovery
dispute
district
correctly
resolved
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issue
wayte
entitled
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evidence
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evidence
reject
claim
merits
basis
evidence
wayte
access
time
district
proceedings
question
whether
discovery
order
appropriate
breaks
three
narrower
inquiries
first
whether
wayte
made
sufficient
showing
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prosecution
entitled
discovery
second
whether
documents
testimony
ordered
released
relevant
wayte
selective
prosecution
claim
whether
scope
discovery
appropriate
third
whether
wayte
need
materials
outweighed
government
assertion
executive
privilege
appeals
dealt
first
questions
finding
adequate
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thus
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incorrect
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case
remand
appeals
determination
second
third
questions
certainly
position
perform
inquiries
documents
stake
submitted
district
camera
review
us
inquiry
leads
resolution
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discovery
question
showing
must
defendant
make
obtain
discovery
claim
selective
prosecution
standard
appellate
review
district
finding
required
showing
made
courts
appeals
adopted
standard
defendant
establishes
right
discovery
show
colorable
basis
selective
prosecution
claim
see
murdock
cammisano
berrios
berrigan
make
showing
defendant
must
allege
sufficient
facts
support
selective
prosecution
claim
take
question
past
frivolous
state
hazel
erne
general
defendant
must
present
evidence
tending
show
existence
essential
elements
defense
berrios
supra
standard
district
applied
case
consistent
exhortation
need
develop
relevant
facts
adversary
system
fundamental
comprehensive
ends
criminal
justice
defeated
judgments
founded
partial
speculative
presentation
facts
nixon
also
recognizes
relevant
proof
selective
prosecution
cases
normally
government
hands
cf
poller
columbia
broadcasting
system
time
standard
adequately
protects
government
attempts
defense
seek
discovery
means
harassment
delay
see
murdock
supra
respect
second
determination
concerns
appropriate
scope
review
doubt
trial
judges
enjoy
great
deference
discovery
matters
district
decisions
discovery
therefore
subject
plenary
review
appeal
instead
reviewed
standard
stated
nixon
enforcement
pretrial
subpoena
duces
tecum
must
necessarily
committed
sound
discretion
trial
since
necessity
subpoena
often
turns
upon
determination
factual
issues
without
determination
arbitrariness
trial
finding
without
record
support
appellate
ordinarily
disturb
finding
applicant
subpoena
complied
federal
rule
criminal
procedure
appeals
however
even
mention
appropriate
standard
review
much
less
explain
apply
extent
conclusory
statements
shed
light
basis
decision
appears
appeals
performed
de
novo
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review
especially
inappropriate
case
given
painstaking
care
district
took
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discovery
process
narrowly
tailored
scope
rulings
iii
proper
starting
point
consider
whether
district
abused
discretion
determining
wayte
presented
sufficient
facts
support
nonfrivolous
claim
selective
prosecution
believe
district
acted
well
within
scope
discretion
evaluate
merit
wayte
claim
consider
elements
prima
facie
case
selective
prosecution
ascertain
whether
wayte
made
nonfrivolous
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existence
elements
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bear
mind
stage
wayte
need
made
full
prima
facie
case
order
entitled
discovery
prima
facie
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course
one
unrebutted
lead
finding
selective
prosecution
shifts
government
burden
rebutting
presumption
unconstitutional
action
see
rose
mitchell
duren
missouri
castaneda
partida
alexander
louisiana
defendant
need
meet
high
burden
get
discovery
standard
discovery
merely
nonfrivolousness
moreover
wayte
need
convince
need
persuade
appeals
made
finding
nonfrivolousness
sat
finder
fact
needs
show
district
finding
nonfrivolousness
constitute
abuse
discretion
see
cammisano
berrios
turn
consider
whether
sufficient
showing
made
correctly
points
wayte
selective
prosecution
claims
must
judged
according
ordinary
equal
protection
standards
ante
see
oyler
boles
yick
wo
hopkins
wayte
presents
equal
protection
challenge
passive
enforcement
system
selective
service
refers
justice
department
investigation
possible
prosecution
names
young
men
fall
two
categories
wrote
selective
service
said
refused
register
whose
neighbors
others
reported
persons
refused
register
app
wayte
argues
scheme
purposefully
singled
individuals
result
exercise
first
amendment
rights
see
brief
appellee
pp
make
prima
facie
case
wayte
must
show
first
member
recognizable
distinct
class
second
must
show
disproportionate
number
class
selected
investigation
possible
prosecution
third
must
show
selection
procedure
subject
abuse
otherwise
neutral
castaneda
partida
supra
inquiry
whether
wayte
presented
sufficient
evidence
elements
show
claim
frivolous
wayte
clearly
established
first
element
prima
facie
case
record
demonstrates
unequivocally
wayte
member
class
vocal
opponents
government
draft
registration
program
members
class
exercised
first
amendment
right
speak
freely
petition
government
redress
grievances
either
reported
reported
others
failed
register
draft
establish
second
element
wayte
must
show
passive
enforcement
policy
identified
investigation
possible
prosecution
disproportionate
number
vocal
opponents
draft
registration
record
stands
given
government
refusal
comply
district
discovery
order
contain
breakdown
many
approximately
young
men
referred
selective
service
justice
department
vocal
however
record
suggests
responsible
officials
justice
department
aware
vast
majority
individuals
vocal
opponents
draft
registration
example
draft
letter
prepared
david
kline
justice
department
official
responsible
overall
enforcement
draft
registration
law
assistant
attorney
general
jensen
send
herbert
puscheck
selective
service
associate
director
plans
operations
stated
unfortunately
believe
government
initiates
prosecutions
present
passive
identification
scheme
place
exists
real
risk
lose
least
initial
cases
high
probability
persons
write
service
persons
reported
others
vocal
proponents
since
passive
identification
scheme
necessarily
means
enormous
numbers
neither
identified
prosecuted
prosecution
vocal
undoubtedly
lead
claims
prosecution
brought
retribution
exercise
first
amendment
rights
indeed
present
univers
hundreds
thousands
chances
quiet
prosecuted
probably
chances
struck
lightning
app
emphasis
added
citation
omitted
selective
service
enforcement
program
presently
passive
brought
service
attention
either
report
others
report
consequently
first
prosecutions
liable
consist
large
sample
persons
object
religious
moral
grounds
persons
publicly
refuse
register
third
element
decision
implement
passive
enforcement
system
certainly
decision
susceptible
abuse
indeed
exceptional
area
national
life
conscientious
opposition
government
policy
intertwined
violations
laws
implement
policy
falk
en
banc
fairchild
concurring
correlation
vocal
opposition
violations
law
makes
relatively
easy
punish
speech
guise
enforcing
laws
enforcement
scheme
implemented
full
knowledge
effects
particularly
harsh
vocal
opponents
government
policies
see
app
quoted
supra
page
cf
government
recognized
passive
program
potentially
serious
first
amendment
problems
knowledge
makes
scheme
directly
vulnerable
charge
purpose
punish
individuals
exercise
first
amendment
rights
recognized
dherence
particular
policy
practice
full
knowledge
predictable
effects
adherence
one
factor
among
others
may
considered
determining
whether
decision
based
impermissible
ground
columbus
board
education
penick
see
also
personnel
administrator
massachusetts
feeney
marshall
dissenting
discern
purposes
underlying
facially
neutral
policies
considered
foreseeability
disproportionate
impact
steele
thus
wayte
established
first
third
elements
prima
facie
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presented
colorable
claim
second
result
thus
doubt
district
abuse
discretion
found
wayte
equal
protection
claim
frivolous
course
viewed
case
lens
instead
focusing
elements
prima
facie
case
whether
wayte
presented
sufficient
evidence
existence
elements
earn
right
discover
relevant
information
government
possession
leaps
two
issues
proceeds
directly
merits
equal
protection
claim
analysis
flawed
two
respects
first
shown
ignores
simple
fact
wayte
entitled
discovery
claim
rejected
merits
lack
evidence
second
equal
importance
errs
manner
analyzes
merits
equal
protection
claim
simply
focuses
wrong
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