Frank Talk About Free Speech

Attorney Victor Diaz chats up the ACLU's Howard Simon

MULLIN: Back to the matter of disconnect, I want to describe a manifestation of it. People are fearful that if an individual or an arts group expresses opposition to the Cuba ordinance, they will be branded as enemies of Cuban Americans, that they're prejudiced, they're bigoted, they're racist. This is a palpable fear among a lot of people I know. Victor, where do you think that fear came from?

DIAZ: Irresponsible leadership, irresponsible rhetoric on both sides, not just on one side. I think there are people who fan and fuel that fear. Demagoguery loves ethnic and racial divides. So wherever you have a latent ethnic and racial divide you will have demagogues jump in, because they can manipulate people easily by preying on those fears. So I think both sides of the debate bear that in mind.

MULLIN: But I'm talking about only one side on this specific issue, the side that wants to say, "I disagree with this ordinance. I feel it's a bad thing for the community; it's a bad thing for me as an individual. I just want to express my feelings that the part of the law that seems to inhibit free expression is bad for all of us." People are fearful of even saying that because they end up being labeled anti-Cuban racists.

DIAZ: That is wrong. That is absolutely, unequivocally, 100 percent wrong. Now, what we have to parse out from that is this: Holding an unpopular opinion is always going to subject you to being unpopular. And there are legitimate forms of expressing "I don't agree with you and I don't have to support or subsidize what you're saying." And there are inappropriate forms.

And what this dialogue should be about is not saying to someone: "You can't say to Debbie Ohanian: 'You know what, I really do not appreciate you bringing that group into this community. And Debbie, I wish you wouldn't do it. And I don't like it and I hope you lose your shirt, because no one comes to see your performance.' Versus 'Debbie, you cannot put it on in this particular forum' or 'If you do that, we're not going to let you put it on any other place.'" Inappropriate responses, and particularly when government gets involved in those responses as opposed to individuals. People have the right to vote with their feet, with their pocketbooks.

I'm trying to look for a comparably controversial, absurd point of view. I think if someone put the Confederate flag over their workplace, like they're doing in South Carolina -- that may be protected speech; no one is saying it violates the First Amendment. But I reserve the right to think that's hate-mongering, and I reserve the right to criticize the person who flies the Confederate flag. Protected speech can still be intentionally provocative; you have the right to provoke. But one of the things I don't think we understand completely as a society is that even if speech is protected, you still have the right to say, "I really don't like it. I really disagree with it. And I'm not going to support you in doing that. And in fact I'm going to think less of you for doing it."

But you're not going to be able to divorce the fear. One of the statements I made that is controversial was when I said, "the views of the majority." If you are in any minority point of view, you have the right to have your civil rights protected, and you should have the right to express your point of view. But you shouldn't necessarily expect to prevail.

SIMON: This is a problem that is more than merely the isolation one feels from expressing an unpopular point of view. First of all we have to acknowledge history, and some of that history is violence. I mean, we're talking about, for example, preventing artists from performing by firebombing a restaurant or by blowing up somebody's car because they don't like his views.

But the principal form of intimidation -- and I know this because I spoke to so many arts groups as we were preparing this lawsuit -- was a different form of intimidation. It was fear of retaliation because they are dependent on public funding from the county to conduct their arts programs. And they were fearful of voicing an opinion of opposition to the ordinance for fear of losing their funding.

DIAZ: The first kind of intimidation -- the bombing, the kind of stuff we had in this community -- I think we've evolved. Let's give ourselves credit.

MULLIN: Believe me, Victor, it has not stopped.

DIAZ: But we haven't had that kind of violence --

MULLIN: Wait a minute, there was a bomb threat in November, the second time Rosita Fornes tried to perform here. She couldn't play at the Seville Hotel.

DIAZ: But we're not sure who's behind those bomb threats, whether it's people trying to give Rosita Fornes popularity -- we're talking about actual violence.

MULLIN: The most recent acts of violence occurred against people at Elian demonstrations who displayed opposing points of view and were physically assaulted. It still goes on.

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