For 167 years the shadow of the Logan Act has fallen upon those
Americans who trespass on the Federal monopoly of international negotiations
which it creates. In theory, up to three years’ imprisonment and a $5,000
fine await those Americans who, without authority, communicate with a
foreign government intending either (a) to influence that government with
respect to a controversy with the United States or (b) to defeat the
measures of the United States. Though only one indictment and no trial have
taken place under the Act, who can tell when a new Administration, thinner
skinned or harder pressed than its predecessors, may in its irritation call
into play this sleeping giant? Now, at a time when domestic opposition to
certain aspects of our foreign policy has reached a pitch unknown for many
years, it would be well to reflect upon this curious product of the
confluence of criminal law and foreign relations law before we are in fact
confronted by a test of its strength. All could be the losers from an
unpremeditated encounter—the defendant by finding himself, perhaps to his
very great surprise, the first person subjected to the Act’s severe criminal
penalties, the Government by finding itself stripped of its long accustomed
protection by a ruling that the statute as it now reads is
unconstitutionally vague or restrictive of free speech. Despite its long
desuetude as a criminal statute, the Act represents a principle which I
cannot help but think is, at its core, a salutary one; that America in
sensitive dealings with other governments “speaks with one voice.” It
embodies the concept of bipartisanship, that quarrels about foreign
relations are fought out domestically and not with the adversary. It deters
sometimes very ill-advised attempts to take the conduct of foreign affairs
into foolish and unauthorized hands. On the other hand, it cuts into
freedoms which we regard as having the highest value, and many of the
situations in which its use has been suggested clearly involve no danger
that would justify such a restraint.
Making Masculinity in Plasma Physics
