In the case of Wayte v. United States, 1984, the Supreme Court ruled in favor of the U.S. government's method for prosecuting draft dodgers during the Vietnam War era. The defendant, David Wayte, argued that he was selectively prosecuted because he openly protested against his military service obligation and failed to register for Selective Service System (SSS). He claimed this violated his First Amendment rights as it discriminated against those who vocalized their opposition to war or conscription. However, a majority of justices disagreed with him; they found no evidence that such prosecutions were carried out with malicious intent or aimed at stifling free speech. Instead, they concluded that "passive enforcement" - where SSS only pursued cases brought directly to its attention by non-registrants themselves or through tips from third parties - was an acceptable strategy given limited resources and did not infringe on constitutional rights.

In the dissenting opinion for Wayte v. United States, Justice Marshall argued that the government's passive enforcement policy regarding draft registration was unconstitutional because it allowed for potential discriminatory prosecution. He believed that by relying on self-reporting of non-registrants, the government essentially permitted a "prosecutorial dragnet" which could be used to target specific groups or individuals based on their vocal opposition to registration. Furthermore, he contended that this method of enforcement violated due process as it did not provide adequate notice and opportunity for individuals to comply with the law before facing prosecution. Lastly, Justice Marshall expressed concern over how such a system might impact First Amendment rights if those who spoke out against draft registration were more likely to face legal consequences than those who silently refused compliance.