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The Logan Act: Paper Tiger or Sleeping Giant?

Published online by Cambridge University Press:  28 March 2017

Detlev F. Vagts
Detlev F. Vagts*
Affiliation:
Harvard University
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Extract

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.

Type
Research Article
Information
American Journal of International Law , Volume 60 , Issue 2 , April 1966 , pp. 268 - 302
Copyright
Copyright © American Society of International Law 1966 

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References

1 In its present form the Act (18 U.S.C. §953 (1964)) reads: “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 not more than $5,000 or imprisoned not more than three years, or both. “This section shall not abridge the right of a citizen to apply, himself or his agent, to any foreign government or the agents thereof for redress of any injury which he may have sustained from such government or any of its agents or subjects.“ As originally enacted in 1 Stat. 613 (1799), it read: ” [I]f any person, being a citizen of the United States, whether he be actually resident, or abiding within the United States, or in any foreign country, shall, without the permission or authority of the government of the United States, directly or indirectly, commence, or carry on, any verbal or written correspondence or intercourse with any foreign government, or any officer or agent thereof, with an 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 defeat the measures of the government of the United States; or if any person, being a citizen of, or resident within the United States, and not duly authorized, shall counsel, advise, aid or assist in any such correspondence, with intent, as aforesaid, he or they shall be deemed guilty of a high misdemeanor, and on conviction before any court of the United States having jurisdiction thereof, shall be punished by a fine not exceeding five thousand dollars, and by imprisonment during a term not less than six months, nor exceeding three years: Provided always, that nothing in this act contained shall be construed to abridge the right of individual citizens of the United States to apply, by themselves, or their lawful agents, to any foreign government, or the agents thereof, for the redress of any injuries in relation to person or property which such individuals may have sustained from such government, or any of its agents, citizens or subjects.'' Most of the changes were made in the 1948 codification and were not intended to be substantive.

2 On the absence of actions under the statute, see 4 Moore, Digest of International Law 449 (1906); Representative Michel, writing to Attorney General Kennedy, asserted the absence of convictions and was not refuted. 107 Cong. Rec. 11220 (1961). For the one prosecution see p. 271 below.

3 United States v. Pink, 315 TJ. S. 203, 242; 36 A.J.I.L. 309 (1942). This dictum of Mr. Justice Frankfurter there refers specifically to the disability of the States to participate in foreign affairs. Senator Fulbright adapts it to the Logan Act in 106 Cong. Rec. 8625 (1960).

4 The earlier history of the Logan Act was gathered in Moore, op. cit. note 2 above, and in Warren, History of Laws Prohibiting Correspondence with a Foreign Govern ment and Acceptance of a Commission, Sen. Doc. No. 696, 64th Cong., 2d Sess. (1917) (hereinafter cited as “Warren, History“); Bates, Unauthorized Diplomatic Intercourse by American Citizens with Foreign Powers (1915). Mr. William Cheeseman of the Law School class of 1968 has checked for me the New York Times indices since Sept., 1851, and the Congressional Record indices since 1880.

5 The following section relies primarily on the only modern biography of Logan: Tolles, George Logan of Philadelphia (1953), particularly Chs. VIII and IX.

6 Ibid. at 156. Jefferson denied several times having encouraged Logan. 9 Works of Thomas Jefferson 16 (P.L. Ford ed., 1905).

7 1 Messages and Papers of the Presidents 267 (Richardson ed., 1897). Adams' message came after the point was raised by a Senate address to him. Ibid, at 266.

8 9 Annals of Congress 2583 (1799).

9 Ibid. at 2706-2707.

10 The first specific but tangential reference to Dr. Logan seems to be that at p. 2643. It is plain, however, that he is the person referred to at p. 2503.

11 Foster, A Century of American Diplomacy 226-228 (1900); 2 McMaster, A History of the People of the United States 415-416 (1885); 2 H. C. Lodge, George Washington 258 (1889); E. G. Adams, History of the Foreign Policy of the United States 108-109 (1924). Compare Bemis, A Diplomatic History of the United States 121-122 (4th ed., 1955).

12 Tolles, op. cit. note 5 above, at 204.

13 11 Annals of Congress 185-187 (1802); Tolles, op. cit. note 5 above, at 231. In 1810 Logan undertook a mission to London, which, but for the partial concurrence of President Madison, would presumably have violated “ M s “ Act. Ibid, at 287.

14 For an account of this transaction, see Warren, Odd Byways in American History 168-175 (1942).

15 This episode is described in Tolles, op. cit. note 5 above, at 242-243.

16 1 Messages and Papers of the Presidents 354 Richardson ed., 1897); Warren, History 12-13.

17 Plumer, Memorandum of Proceedings in the United States Senate, 1803-1807, at 94-95 (Brown ed., 1923).

18 Warren, History 13-14.

19 For a description of the Yrujo episode, see Foster, A Century of American Diplomacy 218-219 (1900).

20 See Documents Relating to New-England Federalism 366-373, 387 (H. Adams ed., 1905), for copies of the correspondence. The tendencies of Pickering's thought were that “our own best citizens consider the interests of the United States to be interwoven with those of Great Britain.” Ibid, at 367.

21 5 Moore, Digest of International Law §700 (1906); Bernard, Neutrality of Great Britain during the American Civil War 185 (1870).

22 30 Fed. Cas. (No. 18,274) 1042 (D. Mass., 1863); 30 Fed. Cas. (No. 18,277) 1049 (C.C.D. Mass., 1861). The latter charge describes the background as follows: ” A few months since, a member of the British Parliament declared, in the most public manner, that he had received many letters from the Northern States of America, urging parliament to acknowledge the independence of the Southern Confederacy” (p. 1051). It has not been possible to track down who that person was or what he said.

23 [1888] 2 TJ. S. Foreign Relations 1684 (1889), quoting from London Daily Telegraph, Oct. 29, 1888. For a thorough account of this incident, see Tansill, The Foreign Policy of Thomas F. Bayard, 1885-1897, at Ch. 11 (1940).

24 Foster, op. cit. note 11 above, at 230-231.

25 2 Moore, Digest of International Law 228-242 (1906). Cutting was a Texan who fell afoul of Mexican justice by defaming a prominent Mexican in an American newspaper.

26 Foster, op. cit. note 11 above, at 231.

27 N. Y. Times, Nov. 27, 1915, p. 2, col. 5. Corwin, The President: Office and Powers 469 (3rd ed., 1948), comments that at that point in history United States involvement had hardly reached the point where the Act could be violated.

28 See Warren, Odd Byways in American History 175 (1942); the documents are collected in [1915] U. S. Foreign Relations, Supp. 932-947 (1928).

29 N. Y. Times, May 24, 1917, p. 1, col. 6; ibid,., May 25, 1917, p. 9, col .4.

30 54 Cong. Rec. 2301 (1917). As further, private, evidence of contemporary interest in the Logan Act, see Scott, “Private Peace Parleys,” 12 A.J.I.L. 598 (1918).

31 U8 U.S.C. $954 (1964).

32 54 Cong. Rec. 3483 (1917).

33 N. Y. Times, Oct. 19, 1920, p . 1, col. 8; p. 2, col. 1.

34 bid., Oct. 19, 1920, p. 1, col. 6 (comment of Governor Cox, Democratic candidate for President).

35 Ibid., p. 3, col. 4.

36 Ibid., April 15, 1922, p . 1, col. 7; the remarks of the Attorney General are found in ibid., April 16, 1922, p. 2, col. 7.

37 Ibid., Feb. 28, 1927, p. 1, col. 3.

38 76 Cong. Bee. 3146-3147; 77 ibid. 4748 (1933).

39 N. Y. Times, April 15, 1947, p. 1, col. 2; ibid., April 20, 1947, §IV, p. 2, cols. 1, 3, 5, 7.

40 Ibid., April 15, 1947, p. 1, col. 2; see also 93 Cong. Rec. 3351 (1947) (remarks of Rep. Rankin).

41 N. Y. Times, April 15, 1947, p. 24, col. 5.

42 Letter to Stalin, 3 Bulletin Atomic Scientists 347 (1947). By the courtesy of Wayne Barnett, Esq., I have been furnished copies of the letters written to Dr. Szilard. That from the Department of Justice stated: “under the established policy of the Department of Justice the Attorney General does not advise private individuals as to the consequences of their acts under the criminal statutes.” That from the Department of State acknowledged “the right of every citizen to give public expression of his personal views” but concluded that “the granting of permission or authority … would be construed as an approval of the views expressed in the letter.” Neither squarely takes a position as to the legality of the Szilard letter.

43 N. Y. Times, Dec. 13, 1949, p. 63, col. 5; ibid., Dec. 14, 1949, p. 63, col. 1.

44 Ibid., Dec. 15, 1949, p. 71, col. 1.

45 1 H. C. Deb. (Can.) 427 (1950). It has been pointed out that, aside from the Logan Act, our Government has sought to keep control over international negotiations on air rights to the exclusion of the carrier concerned. Calkins, ‘ ‘ The Eole of the Civil Aeronautics Board in the Grant of Operating Eights in Foreign Air Carriage,” 22 Journal of Air Law and Commerce 253, 264 (1955).

46 N. Y. Times, Oct. 5, 1950, p. 18, col. 4.

47 Ibid., Oct. 12, 1950, p. 38, col. 1.

48 Ibid., March 31, 1953, p. 1, col. 4.

49 Ibid., March 30, 1953, p. 14, col. 1 (remarks of Sen. Mundt); Hid., April 3, 1953, p. 13, col. 5 (remarks of Pres. Eisenhower).

50 Ibid., Oct. 20, 1953, p. 4, col. 3.

51 Ibid., Oct. 22, 1953, p. 3, col. 4.

52 See, e.g., ibid., May 20, 1960, p. 1, col. 8. Mr. Eaton has not been deterred from conferring with Communist officials. Ibid., May 25, 1965, p. 3, col. 1.

53 106 Cong. Rec. 10661 (1960). For a defense of Eaton's activities see a letter to the Times from Leonard Boudin, Esq., N. Y. Times, May 28, 1960, p. 20, col. 8.

54 Ibid., Dec. 15, 1961, p. 1, col. 8.

55 For a journalistic account of these negotiations from the original Castro tractor-for- prisoner proposal to the final medicine deal, see Haynes Johnson, The Bay of Pigs 229-341 (1964). Somewhat similar negotiations on behalf of TJ. S. fliers held prisoner by Red China were conducted by Rep. Adam Clayton Powell at the Bandung Conference. N. Y. Times, April 29, 1955, p. 5, col. 1. Plischke, Conduct of American Diplomacy 102 (2d ed., 1961), sees a Logan Act problem here, though I find no contemporary mention of it. 66 107 Cong. Bee. 9722 (1961).

57 Ibid., at 8538-8539.

58 Ibid, at 8643. The situation in question was the subject of litigation not involving the Logan Act. Khedivial Line, S.A.B. v. Seafarers’ International Union, 278 F.2d 59 (2d Cir., 1960).

59 See 107 Cong. Rec. 9073, 9641 (1961).

60 The writer is advised by the Clerk of that court that a petition for mandamus, filed as No. 13391, was denied on June 23, 1961, and that no briefs were filed. See N. Y. Times, June 18, 1961, p. 7, col. 7.

61 See ibid., June 16, 1961, p. 4, col. 4. The resulting action, Voorhees v. Morrison, No. 63-20-Civ.-EC in the Miami Division, Southern District of Florida, was dismissed by an order dated March 4, 1963.

62 44 Dept. of State Bulletin 934 (1961).

63 107 Cong. Rec. 11220 (1961).

64 Memorandum in Support of Motion to Dismiss, Voorhees v. Morrison, No. 63-20- Civ.-EC, S.D. Ma., pp. 7-12.

65 75 Stat. 444 (1961), as amended, 22 U.S.C. §2370 (1964). Most, but not all, of the subsections of that section forbid only assistance under “this chapter” but some are general in terms and probably apply to Cuba.

66 Memorandum, note 64 above, at 12.

67 N. Y. Times, Aug. 13, 1965, p. 1, col. 7 (communication by Rev. Martin Luther King to North Viet-Nam); ibid., Dec. 29, 1965, p. 3, col. 2; Jan. 9, 1966, p. 1, col. 2 (visit of Messrs. Aptheker, Hayden and Lynd to Hanoi).

68 Waldron v. British Petroleum Co., 231 F. Supp. 72 (S.D.N.Y., 1964).

69 Vagts, ‘ ‘ The Corporate Alien: Definitional Questions in Federal Restraints on Foreign Enterprise,” 74 Harvard Law Rev. 1489 (1961) ; Restatement of Foreign Relations Law of the United States §27 (Proposed Official Draft, 1962).

70 See note 1 above.

71 See pp. 272 and 273 above.

72 1 8 TJ.S.C. §2 (1964); see H.R. Rep. No. 304, 80th Cong., 1st Sess., A76 (1947).

73 See, e.g., Victory Transport Inc. v. Comisaria General, 336 F.2d 354 (2d Cir., 1964), 59 A.J.I.L. 388; cert, denied, 381 U. S. 934 (1965).

74 United States v. Klintock, 18 U. S. (5 Wheat.) 144, 149 (1820).

75 H.E. Rep. No. 304, 80th Cong., 1st Sess., A7-A8 (1947), indicates that the provision was taken over from the Espionage Act of 1917 (see, e.g., 18 U.S.C. $794 (a) (1964)). The Logan Act is not one of the sections which the comment lists as being affected.

76 United States v. Melekh, 190 F. Supp. 67, 81 (S.D.N.Y., 1960), 55 A.J.I.L. 734 (1961); Separations for Injuries Suffered in the Service of the United Nations, [1949] I.C.J. Rep. 174, 179, 43 A.J.I.L. 589 (1949).

77 Compare §3 of the Trading with the Enemy Act, 40 Stat. 412 (1917), 50 TJ.S.C. App. $3(c) (1958); 12 A.J.I.L. Supp. 27 (1918), 36 ibid. 56 (1942).

78 See, e.g., N. Y. Times, Aug. 13, 1965, p. 1, col. 7 (statement of Rev. Martin Luther King). Robert G. Harper pointed out that the Act did not use the term ” negotiate “ and implied that Gallatin had tried to smuggle the idea into the debates. 9 Annals of Congress 2531 (1798).

79 Ibid. 2596 (1799).

80 P. 271 above,

81 United States v. Harriss, 347 TJ. S. 612 (1954).

82 Wright, Federal Courts §12 (1963).

83 Memorandum in Support of Motion to Dismiss, Voorhees v. Morrison, No. 63-20-Civ.- EC, S.D. Fla., 1963, p. 12 (“as those terms are customarily understood in diplomatic parlance“).

84 Vattel, Law of Nations, Ch. XVIII (1793 ed., transl.).

85 P.C.I.J., Series A, No. 2, p. 11 (1924).

86 lbid. at p. 61. See also Asylum Case, [1950] I.C.J. Sep. 395, 403, 45 A.J.I.L. 179 (1951); Interpretation of Peace Treaties with Bulgaria, Hungary and Eoumania, [1950] I.C.J. Rep. 65, 74, 44 A.J.I.L. 742 (1950).

87 [1962] I.C.J. Rep. 319, 328; 57 A.J.I.L. 640 (1963).

88 See, for example, the conflict of views as to when the ‘ ‘ dispute'’ between the nations arose for purposes of the reservation ratione temporis in the Interhandel Case (Switzerland v. United States), [1959] I.C.J. Rep. 6, 20-22, 59-62 (Sir Percy Spender), 33-40 (Judge Haekworth); 53 A.J.I.L. 671 (1959). For discussion of ” d i s p u t e “ in Art. 34, see, for example, the interchange between the Soviet and French Security Council delegates on the Syrian-Lebanese Controversy, Report of the Security Council to the General Assembly, Oct. 3, 1946, IT.N. Doc. A/93 at p. 69, reprinted in Sohn, Cases on World Law 737 (1950). Problems also arise in determining who is a party to a dispute who shall abstain from voting in the Council under Art. 27. One of the questions international practice does not answer is whether one violates the Act by creating a dispute between the United States and a foreign government. It would seem that such conduct would be at least as harmful as intervening in a pre-existing one, and that the text of the Act does not require that the dispute antedate the correspondence.

89 On the conclusiveness of State Department certifications, see International Products Corp. v. Koons, 325 F.2d 403 (2d Cir., 1963). One may, however, be doubtful as to the effectiveness of a government certification to extend the scope of a “dispute,” particularly in a criminal case. International tribunals are not so bound, see South West Africa Cases, [1962] I.C.J. Rep. 319, 328: “ i t is not sufficient for one party … to assert that a dispute exists with the other party.” On the specific point that absence of negotiations means absence of controversy, compare the memorandum cited in note 83 above with the opinion of Sir Percy Spender in the Interhandel ease, note 88 above, at 60: ” A dispute may arise long before it crystallizes into its component parts or reveals all its different facets. No special formality is necessary. It need not arise in the course of diplomatic negotiations. It may do so independently thereof and may precede negotiations.“

90 See note 68 above.

91 Anglo-Iranian Oil Co. Case (United Kingdom v. Iran), [1952] I.C.J. Rep. 93; 46 A.J.I.L. 737 (1952).

92 If one believes Tully, CIA: The Inside Story 88-89 (1962).

93 But see statement of Attorney General Kennedy, 107 Cong. Eee. 11220 (1961) citing the Annals’ use of the term “interference.“

94 E.g., 9 Annals of Congress 2677 (1799) (Isaac Parker).

95 Ibid. 2679-2682 (1799).

98 Arts. 39, 41, 42. The term “measure” appears in a context rather similar to the Logan Act's in §1 of the Sedition Act of 1798, 1 Stat. 596. Note also that the term appears in the Logan Act's clause forbidding influencing the “measures or conduct“ of a foreign government. It is hard to see how “measures” are to be differentiated from “conduct.“

97 Waldron v. British Petroleum Co., 231 F. Supp. 72, 88 (S.D.N.Y., 1964).

98 See p. 275 above.

99 See note 72 above.

100 9 Annals of Congress 2584-2586 (1799); see, generally, Waters, The Ad Hoc Diplomat: A Study in Municipal and International Law (1963).

101 See notes 33-37 above. As to limits on Congressional activity in the foreign relations area, see Corwin, The President: Office and Powers 216-235 (3d ed., 1948).

102 Pennsylvania v. Nelson, 350 U. S. 497, 516 (1956). In Holmes v. Jennison, 39 U. S. (14 Pet.) 540, 575-576 (1840), Chief Justice Taney, without referring to the Logan Act, found that the Constitution itself “cut off all communications between foreign governments, and the several state authorities.” See, generally, Corwin, op. cit. above, at 210-212, on the exclusion of the States from foreign affairs. As Taney noted, negotiations between States and foreign governments could be used to further divisions and factionalism. Thus, a violation of the Logan Act by, say, a State Governor could be particularly dangerous.

103 See p. 279 above.

104 See p. 277 above.

105 These regulations were revoked by 25 Fed. Reg. 13138 (1960). The former regulations can be found as part 3 of the 1958 edition of 22 C.F.E. See the discussion of them in 4 Hackworth, Digest of International Law 610-611 (1942). There is also reported a response to an inquiry by Eldon R. James, an American lawyer, as to his status if he became a Minister of Siam. The State Department advised him that any requests for permission to act for Siam in a controversy with the United States should be addressed to the Secretary.

106 9 Annals of Congress 2587 (1799): “ Every owner or commander of a vessel is authorized by the law of nations to make application for the release of his own property… . This is a right which the Government of the United States could not deprive them of… .“

107 Ibid, at 2645.

108 213 U. S. 347, 356; 3 A.J.I.L. 1006 (1909).

109 284 IT. S. 421, 437, note 3; 26 A.J.I.L. 611 (1932); see also United States v. Craig, 28 Fed. 795, 801 (C.C.E.D. Mieh., 1886).

110 313 U. S. 69, 74; 35 A.J.I.L. 569 (1941).

111 Restatement of Foreign Relations Law of the United States $30 (Proposed Official Draft, 1962).

112 E.g., Haggerty v. United States, 5 F.2d 224 (7th Cir., 1925), construing a predecessor of 18 U.S.O. §2 (1964). “

113 Such jurisdiction would have to be defended on the basis of the so-called “protective principle.” The formulation in §33 of the Restatement of the Foreign Relations Law of the United States (Proposed Official Draft, 1962), makes this depend on the fact that such “conduct is generally recognized as a crime under the law of states that have reasonably developed legal systems.” As to such recognition, see the remarks of Lord Campbell on the law of England, note 114 below, and Art. 80 (2) of the French Penal Code, which penalizes dealings with foreign agents that harm France's diplomatic position. Gallatin argued that the lack of foreign counterparts at that time indicated the Act's unwisdom. 9 Annals of Congress 2597 (1799).

114 l Wharton, Criminal Law §274 (9th ed., 1885). This view has the support of Lord Campbell who, in discussing in the House of Lords an incident involving a private deputation to Napoleon III, said: “he apprehended they had been guilty of an offence, perhaps against the law of the land, and, at all events, against the law of nations… . “ 125 Pari. Deb. (3d Ser.) 506-507 (1853). See Wheaton, Elements of International Law 373, note 115 (2d ed. Lawrence, 1863).

115 E.g., Reid v. Covert, 354 TJ. S. 1, 51 A.J.I.L. 783 (1957); see, generally, Girard, “The Constitution and Court Martial of Civilians Accompanying the Armed Forces,“ 13 Stanford Law Rev. 461 (1961).

116 Schneider v. Rusk, 377 U. S. 163, 58 A.J.I.L. 1014 (1964); Kennedy v. Mendoza- Martinez, 372 TJ. S. 144, 57 A.J.I.L. 666 (1963); Trop v. Dulles, 356 U. S. 86, 52 A.J.I.L. 777 (1958); but see Marks v. Esperdy, 377 U. S. 214 (1964); Perez v. Brownell, 356 TJ. S. 44, 52 A.J.I.L. 767 (1958).

117 357 TJ. S. 116 (1958); 53 A.J.I.L. 171 (1959).

118 357 TJ. S. at 126-127, citing Chafee, Three Human Rights in the Constitution of 1787, at 195-196 (1956).

119 Aptheker v. Secretary of State, 378 TJ. S. 500; 58 A.J.I.L. 1014 (1964).

120 Thornhill v. Alabama, 310 TJ. S. 88, 97-98 (1940).

121 38I TJ. S. 1; 59 A.J.I.L. 935 (1965).

122 38I TJ. S. at 16-17.

123 Briehl v. Dulles, 248 F.2d 561, 587 (D.C. Cir., 1957) (Bazelon, J., dissenting), rev'd, 357 TJ. S. 116 (1958), 53 A.J.I.L. 171 (1959); but see Copeland v. Secretary of State, 226 F. Supp. 20, 38-40 (S.D.N.T.), vacated, 378 TJ. S. 588 (1964) (doubting Logan Act and other criminal laws to be more effective or “broader” than passport rules).

124 *381 U. S. 301 (1965).

125 Note, “Government Exclusion of Foreign Political Propaganda,” 68 Harvard Law Rev. 1393, 1406 (1955); dictum in Griswold v. Connecticut, 381 TJ. S. 479, 482 (1965), equates the two rights.

126 United States v. Peace Information Center, 97 F. Supp. 255 (D.D.C., 1951),

127 Ibid. at 262.

128 See Eastern KR. Presidents Conference v. Noerr Motor Freight, Inc., 365 U. S. 127, 137-138 (1961) (doubting Constitutionality of applying Sherman Act to lobbying).

129 United States v. Harriss, 347 U. S. 612 (1954); cf. United States v. Rumeley, 345 U. S. 41 (1953); United States v. Peace Information Center, 97 F. Supp. 255 (D.D.C., 1951).

130 E.g., Pennekamp v. Florida, 328 U. S. 331 (1946) (contempt conviction for publication of criticisms of pending cases reversed).

131 Cox v. Louisiana, 379 U. S. 559 (1965) (narrowly drawn statute protecting courthouse found Constitutional).

132 May Dep't. Stores Co. v. NLBB, 326 TJ. S. 376, 383-386 (1945); Medo Photo Supply Corp. v. NLEB, 321 TJ. S. 678, 683-684 (1944). In a proviso somewhat similar to that of the Logan Act, Sec. 9(a) of the National Labor Relations Act, after stating that the selected representative shall be exclusive, allows the direct presentation of individual grievances to the employer. 49 Stat. 453 (1935), as amended, 29 TJ.S.C. $159(a)(1964).

133 Cf. Swarco, Inc. v. NLRB, 303 F. 2d 668, 672-673 (6th Cir., 1962) ; cert, denied, 373 TJ. S. 931 (1963).

134 E.g., United States v. Curtiss-Wright Export Corp., 299 TJ. S. 304, 320 (1936); 31 A.J.I.L. 334 (1937). 135E.g., Rich v. Naviera Vacuba S.A., 197 F. Supp. 710 (E.D. Va.), aff'd, 295 F. 2d 24 (4th Cir., 1961); 56 A.J.I.L. 550 (1962). 136 325 F. 2d 403 (2d Cir., 1963). w Ibid, at 409.

138 377 U. S. 163, 167-168; 58 A.J.I.L. 1014 (1964).

139 378 TJ. S. 500, 512-514; 58 A.J.I.L. 1014 (1964).

140 356 TJ. S. 44, 60; 52 A.J.I.L. 767 (1958). For a forceful statement of the claims of free speech to primacy in that situation, see the dissent of Mr. Justice Douglas, especially the following: “Some of the most heated political discussions in our history have concerned foreign policy. I had always assumed that the First Amendment, written in terms absolute, protected those utterances, no matter how extreme, no matter how unpopular they might be. Yet if the power to regulate foreign affairs can be used to deprive a person of his citizenship because he voted abroad, why may not it be used to deprive him of his citizenship because his views on foreign policy are unorthodox or because he disputed the position of the Secretary of State or denounced a Resolution of the Congress or the action of the Chief Executive in the field of foreign affairs? It should be remembered that many of our most heated controversies involved assertion of First Amendment rights respecting foreign policy. The hated Alien and Sedition Laws grew out of that field.” 356 TJ. S. at 81.

141 Gorin v. United States, 312 TJ. S. 19 (1941); Chandler v. United States, 171 F . 2d 921, 938-939 (1st Cir., 1948), 43 A.J.I.L. 804 (1949), cert, denied, 336 U. S. 918 (1949); Gillars v. United States, 182 F. 2d 962 (D. C. Cir., 1950), 45 A.J.I.L. 372 (1951). The Federalist supporters of the Logan Act regarded the actions proscribed by it as virtually treason. E.g., 9 Annals of Congress 2587-2590 (1799); but cf. remarks of Livingston, ibid, at 2688. In this they had the almost contemporaneous support of Burke, who, in his Letter to the Duke of Portland and Lord Fitzwilliam, published in 1793, wrote of a private mission to the Empress Catherine of Russia: “This proceeding of Mr. Fox does not, as I conceive, amount to absolute high treason—Russia, though on bad terms, not having been then declaredly at war with this kingdom. But such a proceeding is, in law, not very remote from that offence, and is undoubtedly a most unconstitutional act, and a high treasonable misdemeanor. The legitimate and sure mode of communication between this nation and foreign Powers is rendered uncertain, precarious, and treacherous by being divided into two channels, by which means the foreign Powers can never be assured of the real authority or validity of any public transaction. This proceeding has given a strong countenance and an encouraging example to the doctrines and practices of the Revolution and Constitutional Societies, and of other mischievous societies of that description, who, without any legal authority, are in the habit of proposing, and to the best of their power of forming, leagues and alliances with France.” (As quoted by Lord Campbell, 125 Pari. Deb. (3d ser.) 508 (1853)). I am indebted to Prof. Clive Parry for pointing out to me, via Prof. Richard Baxter, that the impeachment of Thomas, Earl of Danby, in 1678, included a charge that he had “traitorously encroached to himself Regal Power by treating in matters of peace and war with foreign ministers and ambassadors… . “ 11 How. St. Tr. 600, 621-622. The annotations indicate that the charge of “accroaching” of royal power was regarded even then as a dangerous and vague extension of the concept of treason.

142 Annals of Congress 2595, 2637 (1799) (Albert Gallatin); ibid, at 2678 (Isaac Parker), 2690 (Livingston).

143 Waldron v. British Petroleum Co., 231 F. Supp. 72, 89 (S.D.N.Y., 1964).

144 Note, “The Void-for-Vagueness Doctrine in the Supreme Court,” 109 XT. Pa. Law Rev. 67, 76 (1960).

145 Speiser v. Randall, 357 U. S. 513, 526 (1958); see also Smith v. California, 361 U. 8. 147, 150-151 (1959).

146 Loc. cit. note 144 above, at 87, note 98. Cf. Screws v. United States, 325 U. S. 91 (1945).

147 Loc. cit. note 144 above, at 86-87.

148 See Foreign Agents Registration Act Amendments, Hearings before the Senate Foreign Relations Committee, 88th Cong., 1st Sess. (1963); Note, 78 Harvard Law Rev. 619 (1964).

149 E.g., United States v. Curtiss Wright Export Co., note 134 above; but see Manual Enterprises, Inc. v. Day, 370 U. S. 478, 495 (1962) (concurring opinion of Brennan, J., stressing procedural aspects of Post Office obscenity curb).

150 40 Stat. 412 (1917), 50 U.S.C. App. $3(e)(1958).

151 40 Stat. 415 (1917), as amended, 50 U.S.C. App. §5(b)(1958).

152 Zemel v. Rusk, note 121 above.

153 Waldron v. British Petroleum Co., 231 F. Supp. 72, 89 (S.D.N.Y., 1964).

154 See remarks of Sen. Fulbright, 106 Cong. Rec. 8626 (1960). Out of a desire to avoid such chaos, many countries have sought to channel even their governmental agencies’ contacts with foreign countries through their foreign ministry. See Blix, The Bights of Diplomatic Missions and Consulates to Communicate with Authorities of the Host Country (1964).

155 Rabinowitz v. Kennedy, 376 IT. S. 605, 58 A.J.I.L. 814 (1964); Foreign Agents Registration Act Amendments, Hearings before the Senate Foreign Belations Committee, 88th Cong., 1st Sess. 108-109 (1963) (remarks of Prof. Fisher on Logan Act's applicability to counsel). See p. 291 above.

156 The literature analyzing police and prosecutorial discretion in the ordinary, inconspicuous crime cases is extensive. See, e.g., Goldstein, “Police Discretion not to Invoke the Criminal Process: Low-Visibility Decisions in the Administration of Justice,“ 69 Tale Law J. 543 (1960). In terms of visibility, most Logan Act cases (except Pickering's correspondence with Rose) seem to lie at the opposite end of the spectrum from Griswold v. Connecticut, 381 IT. S. 479 (1965).

157 E.g., 9 Annals of Congress 2639, 2691-2692 (1799).