Home / General / The Logan Act is an illiberal anachronism

The Logan Act is an illiberal anachronism

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To state the obvious, the Republican letter to Iranian leaders is ridiculous and awful on both procedural and substantive grounds, and they deserve all kinds of scorn and criticism for it. But to attempt to suggest the letter is constitutes a criminal seems to have inspired some breathless pundits to revive the Logan Act (last seen in the hands of Ronald Reagan, threatening Jesse Jackson with persecution), an illiberal, speech-limiting anachronism that hasn’t actually been used in a prosecution in over 200 years. Here’s the relevant text:

Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.

There’s a case to be made that Cotton letter appears to be in technical violation of this law. But there’s a much more important case to be made that this law deserves to stay dead and buried. Consider the following crank-penned missive, adorned with sufficient postage to make it to Sofia: “As a proud Bulgarian-American, I am dismayed to learn of the ongoing negotiation of the Bulgarian-American blah blah blah treaty. This policy would be a tragic, short-sighted mistake for both countries for reasons XYZ and I encourage you to abandon this plan.” The notion that sending this letter ought to be a felony is indefensible, but it’s as much a violation of the above standard as the letter.

I don’t know enough about first amendment jurisprudence to know if this statute would stand up to scrutiny. It shouldn’t, though, and given its longstanding disuse it would be a strong candidate for desuetude. Since obviously prosecution isn’t going to happen, there’s little to be gained to try to revive a terrible law like this. The Cotton letter can be criticized on several other less problematic but devastating grounds; there’s no need to revive sort of thing.

See also Brian Beutler.

 

….to clarify, since some commenters are missing this point, I am not making the argument that my cranky Bulgarian letter and the Cotton letter are ought to be seen as “equivalent.” There’s are important distinctions between them, all of which clearly make the Cotton letter more objectionable. My point is merely that as written the Logan Act fails to make this distinction. It’s not my suggestion they are equivalent, it’s the implication of this terrible, unconstitutional law that they are. If the Cotton letter should be illegal (and I don’t think it should, probably, but I take no argument on that here) we need a less overbroad, unduly speech-restricting statute.

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