Time to get rid of the Logan Act (or at least change it)

The Logan Act was enacted in 1799 by a legislature piqued at the success of a private citizen, George Logan, to help defuse tensions between the U.S. and France.  The text literally states that any citizen who directly or indirectly has unauthorized correspondence with any officer or agent of a foreign government, with intent to influence that government's position in any disputes or controversies with the U.S., may be fined or imprisoned for a felony offense.  I'm violating the act right now by merely writing this article on a forum accessible to agents of foreign governments who have disputes with the U.S.

Only one person has ever been indicted, and nobody has ever been convicted, under this act.  Most recently, an appointee in the Trump administration resigned – not for violating the act, but for misrepresenting earlier correspondence to his new employer.  Other private citizens such as Mr. and Mrs. Clinton, Jimmy Carter, and Dennis Rodman have clearly had direct correspondence with agents of foreign governments about controversies with the U.S. without being indicted.

In many nations – for example, the People's Republic of China, Cuba, and North Korea – business is intimately connected with government.  Under the Logan Act, U.S. citizens could legally trade with or even visit such nations only if our government conceded before the fact that this does not constitute intent to influence any controversy in some way.

The First Amendment specifically states that Congress shall make no law abridging the freedom of speech.  There are of course reasonable limits to this right, such as certain types of incitement, false statements, certain commercial uses, and child pornography.  But the Logan Act clearly seeks to abridge the freedom of speech for the unauthorized correspondence itself, not for any potential falsehoods or incitements or other content in such correspondence.

As it stands, then, the Logan Act, like the Johnson Amendment, is merely one of those unconstitutional acts or regulations that serve to make disagreements with our U.S. government expensive.  If anybody were ever indicted, it could take decades before the Supreme Court would rule on the matter.  In the meantime, criminal records would remain blotted, and speech and voting rights would most certainly be abridged.

Fortunately, the Ninth Circuit court has just shot massive holes in the standing and damages requirements for suits against government.  It should now be possible to find a friendly judge to rule that the Logan Act is unconstitutional and may no longer be enforced because it hypothetically damages trade between U.S. citizens and foreign countries.  According to the Ninth Circuit, the burden of proof is then on government to establish that its opposition has merit.

It would at least make some sense to replace the current Logan Act with a similarly short version that makes it a felony offense to falsely state that you are an authorized representative of any present or future U.S. government.  That would put the shoe firmly on the other political foot.

The Logan Act was enacted in 1799 by a legislature piqued at the success of a private citizen, George Logan, to help defuse tensions between the U.S. and France.  The text literally states that any citizen who directly or indirectly has unauthorized correspondence with any officer or agent of a foreign government, with intent to influence that government's position in any disputes or controversies with the U.S., may be fined or imprisoned for a felony offense.  I'm violating the act right now by merely writing this article on a forum accessible to agents of foreign governments who have disputes with the U.S.

Only one person has ever been indicted, and nobody has ever been convicted, under this act.  Most recently, an appointee in the Trump administration resigned – not for violating the act, but for misrepresenting earlier correspondence to his new employer.  Other private citizens such as Mr. and Mrs. Clinton, Jimmy Carter, and Dennis Rodman have clearly had direct correspondence with agents of foreign governments about controversies with the U.S. without being indicted.

In many nations – for example, the People's Republic of China, Cuba, and North Korea – business is intimately connected with government.  Under the Logan Act, U.S. citizens could legally trade with or even visit such nations only if our government conceded before the fact that this does not constitute intent to influence any controversy in some way.

The First Amendment specifically states that Congress shall make no law abridging the freedom of speech.  There are of course reasonable limits to this right, such as certain types of incitement, false statements, certain commercial uses, and child pornography.  But the Logan Act clearly seeks to abridge the freedom of speech for the unauthorized correspondence itself, not for any potential falsehoods or incitements or other content in such correspondence.

As it stands, then, the Logan Act, like the Johnson Amendment, is merely one of those unconstitutional acts or regulations that serve to make disagreements with our U.S. government expensive.  If anybody were ever indicted, it could take decades before the Supreme Court would rule on the matter.  In the meantime, criminal records would remain blotted, and speech and voting rights would most certainly be abridged.

Fortunately, the Ninth Circuit court has just shot massive holes in the standing and damages requirements for suits against government.  It should now be possible to find a friendly judge to rule that the Logan Act is unconstitutional and may no longer be enforced because it hypothetically damages trade between U.S. citizens and foreign countries.  According to the Ninth Circuit, the burden of proof is then on government to establish that its opposition has merit.

It would at least make some sense to replace the current Logan Act with a similarly short version that makes it a felony offense to falsely state that you are an authorized representative of any present or future U.S. government.  That would put the shoe firmly on the other political foot.