Frank Talk About Free Speech

Attorney Victor Diaz chats up the ACLU's Howard Simon

I mentioned in my Heraldarticle the summary firing of Peggi McKinley two and a half years ago, and the vilification of some people who tried to raise the issue. I think Gloria Estefan was vilified on Spanish-language radio when she said regardless of what Peggi McKinley was talking about, she didn't think the firing was appropriate.

I think we've had public discussion that's taken place in an extragovernmental context when the community has gone through fits of events like the controversy about the MIDEM festival or last fall about Los Van Van. There's been this dialogue and discussion, but it's not been in all the right places. It's not been before the county commission, for example. It's not been in public. It's not been in a forum where laws can be changed and policy can be set. So I agree. I don't think there has been enough public discussion on this matter, and I think that's because there have been forces that have repressed public discussion.

DIAZ: On both sides of this issue.

I agree with Howard. I have been in discussions during the last three or four days about this issue, even with very conservative, what might be some of the people who have repressed these discussions in the past in defense of the ordinance. And I've heard people saying, "Well, you know, is that the only issue? This thing about whether people can come and play? Is that the only really controversial issue? Because if that's it, maybe we can revisit that point."

And I think there has been and still needs to be much more crystallization of what the real disputes are. I think there is much more common ground. I think that is happening by virtue of the debate being joined. I also heard Debbie Ohanian today telling me: "Oh, I hadn't thought about it in that respect." That's all I'm trying to accomplish.

I'm a lawyer by training and I believe the process we set up is very, very important to people ultimately accepting the result. That's the basic principle of our legal system -- that if you structure a process in a way that both sides of an issue have an opportunity to fully ventilate their ideas, to confront and rebut, then people are more likely to accept the end result, even if they disagree with it.

SIMON: There are more issues here than the embargo and things like that. But those are not our issues.

DIAZ: By "our" you mean the ACLU?

SIMON: Yes, the ACLU. For us the issue is the censorship of art, culture, and entertainment. I must say wholly aside from the embargo and the broader constitutional issues of foreign policy and whether Miami can have its own foreign policy and the issues that are before the Supreme Court and all of those broader global foreign-policy issues -- set those aside. We would not have filed the case if it were not for the fact that the commission insisted upon imposing an embargo on culture, arts, and entertainment in Miami-Dade County. We're not interested in the issue as the ACLU -- we may all be as individual citizens -- but as the ACLU I'm not interested in whether Miami does business with companies that sell refrigerators and forklifts to Havana. But I am interested in whether they'll go out of their way to prevent Los Van Van from completing their 25-city tour by appearing in Miami. For us, that was the reason we filed the lawsuit. Had the commission simply followed federal law and created an exemption for arts, culture, and entertainment, this lawsuit never would have been filed.

DIAZ: Howard made that exact statement to me four or five days ago, and I found that to be informative. I did not know that. And I think a lot of people in this community don't know that. That is a very significant statement, because if people in this community understood that this lawsuit and its motivation is not an attempt to overturn the Helms-Burton law, is not an attempt to change 40 years of U.S. policy toward Cuba in the form of the embargo, but it is really calculated to address the First Amendment issue that the ACLU perceives exists in the failure to create an exemption for cultural arts and people-to-people exchange, I think that the reaction to this debate would be very, very different. I've heard that today from one of the county commissioners, when the issue was framed to him in exactly that fashion. If that were better known, I think it would undermine those people who defend the ordinance by selling it as part of a broader conspiracy to undermine the Cuban-American community.

MULLIN: How far would you go in supporting that point of view? Are you going to become an advocate for the ACLU's lawsuit?

DIAZ: I don't know what my position is on that issue but I will say this, and I've said this to Howard before and I've said this publicly before: As a lawyer with a legal training, I am troubled by that aspect of the ordinance that deals with secondary conduct, not the direct conduct but a group's responsibility to police the conduct of others. We can give a specific example. I think it's the Miami Light Project.

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