Frank Talk About Free Speech

Attorney Victor Diaz chats up the ACLU's Howard Simon

SIMON: They inadvertently violated, unknowingly violated the ordinance because they dealt with someone they found out later did business with Cuba.

DIAZ: I think that is very troubling and possibly constitutionally infirm.

SIMON: They invited someone to a conference from the Sundance Film Festival and it turns out that Sundance helped bankroll the production of [the Cuban-made film] Life Is to Whistle.

DIAZ: And so that could be interpreted as being a violation of the ordinance. I think that to the degree the ordinance is not talking about conduct these arts groups directly engage in, but about having to police the conduct of others -- I think there is serious reason to be concerned about that. I also think there's a permanent ban. If you violate the ordinance once, you permanently disqualify yourself from funding, as opposed to disqualifying yourself for the year in which you signed the ordinance. I think that's wrong too. Personally I think that's wrong.

Another issue is whether a cultural-arts exemption should or must be created to the local ordinance in order for it to conform with federal law. My opinion is largely irrelevant because I'm not the tenth justice of the United States Supreme Court, and in a month the United States Supreme Court is going to answer that question for us in a way that my opinion, Howard's opinion, and everyone else's opinion is going to be entirely irrelevant. So I'm perfectly happy and willing to await the Supreme Court's decision. And if I had to predict, I think the court is going to affirm the First Circuit and I think there's going to be a ruling that's going to create a cultural-arts exemption to our local ordinance. But it's going to have been imposed as a matter of the rule of law, and it's going to be imposed through a process of argument and rational debate in the court of law, which I think will make it easier for the community at large to embrace and accept it.

MULLIN: Let's go back to the issue of timing. From what I read in the Herald, your issue of timing had less to do with the fact that there may be a judicial resolution than that this is just too sensitive an issue for arts groups to be bringing up now. You said, "I don't want another issue that would divide this community along ethnic lines." You don't want "another issue," the first being Elian, I gather.

DIAZ: What I mean by that comment -- and I appreciate you giving me the opportunity to clearly and fully expand on it, which the Herald has not -- is that if this issue is going to be decided in a month by the United States Supreme Court, I don't think it's inappropriate to say let's leave it to the courts. It's going to be answered for us. Why have every homeowners association, every city committee and board, every arts group, every Cuban-American organization taking votes and taking positions on this issue when we will have a resolution of this question.

We all wring our hands about what a terrible situation we have in this town and how we got into this mess. But I think the only way we are going to get out of this mess is for civic leaders in this community to exercise some responsibility on all sides as to how we frame and resolve issues. I congratulate Howard and the ACLU for having the courage to force the issue in a legal context, and to the extent that it is being litigated in the courts, I think it is appropriate and it will spare our community unnecessary turmoil.

To those who want to take this issue outside of that and have it go into the political realm, which is to have it become a political issue in this community at this time, I say: It's going to get decided in the courts, so why now? Why, if we're going to get a resolution in 30 days, are you forcing it as a political issue when treating it as a political issue is unnecessary?

MULLIN: Give me an example of treating it as a political issue.

DIAZ: Well, I think there's an individual running for the county commission who wants this to be an issue and has identified himself with it and is pushing this issue --

MULLIN: Who are you talking about?

DIAZ: Alvaro Fernandez, the vice chairman of the [Miami Beach] Cultural Arts Council. I think he's trying to make it into a political issue. Asking city committees and boards to hold forums on this issue, asking the chamber of commerce to weigh in on this issue smacks of trying to convert it into a political issue. Now let me make it clear: I have no problem with that. But I think it's wrong. I think it's going to create tensions in this community. And I reserve the right to say that there's another, better way to resolve this issue. But if you're going to proceed down that track, then at least listen to both points of view before you reach your conclusions.

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