Cuba Ordinance 101

A New Times guide to busting the county's Cuba law

 The government of the country of Cuba continues to maintain a policy of denying common freedom of speech, press, assembly, religion, and human rights to the majority of their citizens. Until this policy changes, Miami-Dade County shall not enter into a contract with any person or entity that does business with Cuba ... or that has traveled to Cuba. -- the policy statement of Miami-Dade County's Cuba ordinance

So how does county law combat Fidel Castro's attacks on free speech? By imposing censorship right here, restricting opportunities for dissident Cuban artists and scholars to communicate with allies from across the Florida Straits.

How does the ordinance promote free speech in Miami? Shut up!

No matter that José Antonio Ponte's book was banned in Cuba -- the enemy of my enemy is no friend of Miami-Dade County
No matter that José Antonio Ponte's book was banned in Cuba -- the enemy of my enemy is no friend of Miami-Dade County

The Miami-Dade County Commission passed the so-called Cuba ordinance in 1996, after Cuban fighter jets shot down four Miami men flying in unarmed Brothers to the Rescue airplanes. In the emotionally charged atmosphere of the time, the commission bolstered existing anti-Cuba legislation with draconian measures that seem to overstep the boundaries of both the U.S. Constitution and federal law.

The Miami-Dade chapter of the American Civil Liberties Union (ACLU) believes the ordinance violates the right to free speech guaranteed by the First Amendment of the Constitution. According to John de Leon, the local ACLU's president, the law also contradicts the Berman Amendment to the 38-year-old U.S. embargo on trade with Cuba. The 1988 amendment, sponsored by U.S. Congressman Howard L. Berman (D-Calif), aims to foster democracy on the island by allowing cultural exchange between the two nations.

When county commissioners approved the Cuba ordinance, their primary intention was to keep county dollars out of Castro's coffers. The policy does not stop, however, at the dollar sign. Miami-Dade prohibits any organization that traffics in island culture from using county facilities or funds, whether or not money changes hands.

To ensure that every organization receiving county support conforms to the ordinance, the county requires each organization to sign a document known as the Cuba affidavit. By signing the affidavit, the organization agrees not to "do business with Cuba" or "do business" with anyone who "does business" with Cuba. The affidavit binds not only the person who signs, but all officers, board members, and investors in the organization, even when their Cuba connections are unrelated to the organization. It also reaches into the past, requiring that none of the key players in the organization have traveled to Cuba through a third country in the past ten years.

Given the extensive reach of the prohibitions, the promises signed with the affidavit can be hard to keep. Strict enforcement of the law is impossible. And the county commission has the discretion to grant waivers as it sees fit.

Many community leaders have said privately they believe the costs of the measure are too high. Over the past four years, it has chased away the once-annual MIDEM music conference on Miami Beach (postponed indefinitely); the Junior Pan Am Track and Field Championships at Florida International University (moved to Tampa); the possibility of the 2007 Pan American Games (moved to San Antonio); and the county's pipe dream of hosting the 2012 Summer Olympics. Finally, neither the luxury suites at the state-of-the-art American Airlines Arena, nor a last-ditch courtship by Broward County and the City of Miami Beach could lure the Latin Grammy Awards to this capital of Latin music after county government refused to cooperate on the grounds that Cuban artists might perform.

The county has accepted economic sacrifice as a means to social justice in the past, passing an antiapartheid law in 1986 that prohibited making contracts with businesses in South Africa or with U.S. businesses that invested in South African firms. The Cuba ordinance, however, goes further. For Cuba the definition of "doing business" includes making music, showing movies, hanging paintings, and performing plays.

The loss of high-profile, big-money-making events is not the only cost. As Michael Spring, executive director of the Miami-Dade County Department of Cultural Affairs, reports, some 300 to 400 arts organizations, large and small, depend in part on county funds and facilities to operate. Spring parrots Mayor Alex Penelas in claiming the county does not censor the arts; it simply doesn't fund groups that do not comply with the ordinance. The county's top cultural bureaucrat calculates, "Typically our funds are a very small percentage of an organization's budget. On average county funds comprise under five percent of an organization's total budget." Certain organizations might feel the pinch more than others. "The smaller groups may have more of a reliance on our funding," Spring admits, "until they can generate other funds or find other money."

However you do the math, the county's policy adds up to censorship, says John de Leon. "The most potent weapon the county has in chilling the rights of arts organizations is the threat of withdrawing funding," he argues. "That's a very dangerous thing the government is doing, and it is clearly having a chilling effect in his community."

The local ACLU has long been eager to challenge the ordinance in court. But as of yet, no one has stepped forward as a plaintiff. On February 8 the board of the Miami-Dade chapter agreed informally to file a federal lawsuit on behalf of Cuban music promoter Debbie Ohanian, who planned to host a festival of island music at the county-owned American Airlines Arena. Ohanian suffered the sting of official and community censure when she presented the popular band Los Van Van at the Miami Arena in November 1999. "It's a full-time job," says Ohanian of the prospect of filing a federal law suit. "It takes over your life." As of yet the promoter has taken no formal action.

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