Frank Talk About Free Speech

Attorney Victor Diaz chats up the ACLU's Howard Simon

DIAZ: But Jim, there also has been the opposite. There have been protesters who were protesting in support of Elian who suffered retribution in the workplace, people who were fired because they respected the ["Dead Tuesday"] walkout. I mean, let's be fair. That's what I'm saying.

On both sides there's a lot of fear and a lot of intolerance. Inappropriate acts like that are just plain wrong. We can together condemn those in Spanish, in English, in Kreyol, and everywhere we need to go to condemn it. I think by only pointing out the examples of intolerance against people who hold a point of view that is not held by Cuban Americans -- that's the kind of thing that sends up the defense mechanisms in the Cuban-American community.

Intolerance comes in all forms. Discrimination comes in all forms. And rather than say who is discriminated against more -- liberals or conservatives, Cuban Americans or Anglos, Jews or gentiles -- let's just say discrimination is wrong and everybody should cut it out.

The other point Howard makes is very interesting, the second form of intimidation, this fear that if I speak out, there'll be economic retaliation. That's where it starts to get a little squishy. People have the right to vote with their feet and their pocketbooks. And if the overwhelming majority of people who live in a community don't want to subsidize or support or economically benefit a certain activity, and you engage in that activity, you do so at the peril of alienating 85 percent of the people who live this town.

Judge [Federico] Moreno said something very interesting [in ordering a temporary suspension of the so-called Cuba affidavit], which by the way, none of the media has covered. The judge says, "It is important to reiterate that neither this order nor the First Amendment requires Miami-Dade County to subsidize Cuban artists or Cuban cultural programs. As the master of its purse, Miami-Dade County can selectively choose those programs which it desires to fund." And then he goes on to say, "But you can't do it on unconstitutional grounds." But he does say that the First Amendment does not restrict the ability to say, "I choose to subsidize A and I choose to not subsidize B." Howard, you disagree with him?

SIMON: No, as a general proposition every municipality has the right to control its own purse. But does that mean, for example, that it can have a program that discriminates against blacks? That it can have a program that discriminates against people because they're Cuban nationals? That they can have a program that discriminates on another basis -- on point of view, on the message or the messenger? The devil is in the details.

DIAZ: Do you agree or disagree with this statement, because this gets to the heart of the issue: The First Amendment does not prohibit Miami-Dade County from refusing to subsidize Cuban artists or Cuban cultural programs? I don't know the answer. I'm asking you, do you believe that's true, that the county can refuse to subsidize Cuban artists or cultural programs if that is the will of the commission?

SIMON: The problem, Victor, is I think that is put at such a level of obscurity it doesn't make sense. Because the issue before the court is not "Does the county have an obligation to fund Cuban cultural arts?" The issue is: "Can it deny funding to group X if group X has a program in which they put on ten plays, one of which might be a play from a Cuban playwright?" Can the county deny funding forever to this particular group because on one occasion they included a Cuban national? As a general proposition, it's probably true [that the First Amendment does not prohibit Miami-Dade County from refusing to subsidize Cuban artists or Cuban cultural programs]. But the devil is in the details.

DIAZ: You see what comes out of this discussion? That is a huge point of common ground. If in fact we have that as a starting common ground, which is the First Amendment does not dictate to us that we have to subsidize one activity or another, and if we have as a common starting ground that people outside the governmental realm are free to vote with their feet and with their pocketbooks, then the problem is: Why, when that gets transferred into specific policy and specific actions, do we get into the mess that Howard's going to talk about?

The devil may be in the details, but if we can agree on the fundamental issue of what the parameters of free speech are, then getting the details to conform with that fundamental principle shouldn't be all that difficult. I thought we had this huge divide. I really did. Remember when you came up to me on Monday and said, "Our issue is not the embargo. The ACLU would be happy if we could just carve out this exception." I thought, my God, if we could get that message out on Cuban radio, if we could get that message out. You know what? His op-ed piece belonged in El Nuevo Herald, not in the Miami Herald.

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