Quote:
Originally posted by Roguish Lawyer
Why do you think it's unconstitutional? I haven't done any research, but my instinct is that there should be no problem. Certainly the policy of the First Amendment is not impaired by the statute, and this power is one quite clearly given to the government.
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As noted, the Logan Act has never resulted in a conviction, much less an appeal, so its constitutionality has not been tested. There are at least two prongs for attack - the First Amendment and the Sixth Amendment.
In
Waldron v. British Petroleum Co., a federal district court noted with respect to a Logan Act claim, "the existence of a doubtful question with regard to the constitutionality of that statute under the Sixth Amendment. That doubt is engendered by the statute's use of the vague and indefinite terms, 'defeat' and 'measures.' Neither of these words is an abstraction of common certainty or possesses a definite statutory or judicial definition. Since, however, there are other grounds for disposing of this motion, it is not necessary to decide the constitutional question." 231 F. Supp. 72 (S.D.N.Y. 1964) (internal citations omitted).
"Void for vagueness" doctrine is also applied in First Amendment cases (though I believe there we are talking about void for vagueness under the Due Process Clause of the Fifth Amendment), to which may be added overbreadth doctrine. Section 953 is a restriction on "
any correspondence or intercourse" (emphasis added). The fact that the speech at issue is political speech puts it in a rather narrow inner ring of First Amendment protection, where a higher standard is applied than for, say, commercial speech.
There is an open issue, however, which is the extent to which the First Amendment covers speech outside the United States. The extraterritorial application of the First Amendment is untested by the Supreme Court. In
Haig v. Agee (453 U.S. 280 (1981)), the Court ruled that the conduct at issue - revealing the names of CIA covert agents - was not protected speech, so the First Amendment did not apply to the revocation of Agee's passport. It did not directly address the extraterritorial application of the First Amendment. Several district court cases, have, however, with most tending toward applying the Bill of Rights to conduct overseas.
Agee's action was held to be unprotected speech under the national security limitation expressed
Near v. Minnesota ex rel. Olson (283 U.S. 697 (1931)). The
Near doctrine is that there be proof that the activity "must inevitably, directly, and immediately cause the occurrence of an event kindred to imperiling the safety of a transport already at sea." This is akin to the so-called "clear and present danger" test.
While it is likely that the national security exception is not broad enough to save the statute on general terms, it is possible that a narrower statute applicable to military personnel or government officials would be constitutional. The exception to the First Amendment which permits restrictions on political activities of soldiers is long-recognized. Though not absolute, it likely would be applicable to activities to influence foreign policy by a serving soldier. In
United States v. Howe (17 USCMA 165, 37 CMR 429 (1967)), the Court of Military Appeals upheld the conviction for conduct unbecoming of a lieutenant who had participated in civilian clothes in a demonstration. In
Culver v. Secretary of the Air Force (559 F.2d 622 (D.C.Cir.1977)), the DC Circuit Court upheld an Air Force regulation that prohibited an Air Force member from participating in a demonstration in a foreign country.
2LT Howe was a Reserve officer, but he was on active duty at the time, so he was subject to the UCMJ. Unfortunately, Kerry, at the time of his VVAW activities, was not. So even this military restriction would not cover Kerry. As noted, were he subject to the UCMJ at the time, there are at least 10 punitive articles under which he might have been chargeable:
Article 88. Contempt toward officials
Article 94. Mutiny or sedition
Article 104. Aiding the enemy
Article 107. False official statements
Article 108. Military property of United States--Loss, damage, destruction, or wrongful disposition (those medals he threw)
Article 115. Malingering
Article 116. Riot or breach of peace
Article 117. Provoking speeches or gestures
Article 133. Conduct unbecoming an officer and a gentleman.
Article 134. General Article.
Add Article 81, Conspiracy, for most of these. And if he was in fact obligated to report to a Reserve unit, but did not (the record is vague on this), there would be the appropriate applicable Article 85, 86 or 87 violation.
Article 134 covers actions prejudicial to good order and discipline not covered by another punitive article. There are several possible Article 134 violations, including "disloyal statements". In his Senate testimony and other VVAW statements, Kerry claims to have not only heard about, but witnessed atrocities. If he was lying, then Art. 107 might apply, but if he was telling the truth, and never reported them when he was on active duty, then he would be chargeable with another Article 134 violation, misprision of a serious offense. The misprision would have occurred while then-LT(jg) Kerry was subject to the UCMJ, but the statute of limitations ran out long ago.
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