Frank Talk About Free Speech

Attorney Victor Diaz chats up the ACLU's Howard Simon

SIMON: Thank you, but let's deal with a concrete situation. Right now the county commissioners and the county attorney's office are trying to decide whether to deprive FIU of about $50,000 worth of grants because they included [the Cuban-made] Life Is to Whistle in the last film festival, and secondly whether the Miami Film Festival and FIU even qualify for prospective grants because they apparently violated the affidavit and the ordinance by including that film in the last film festival. That is a concrete issue. When you say the devil is in the details, somebody has got to stand up and say, "This community is not threatened by the fact that some people went to see that movie." We're not threatened by that.

DIAZ: You want me to stand up and say that? This community is not threatened by the fact that someone went to see Life Is to Whistle. But at the same time, it's okay to say, "I find it terribly insensitive." If I were appointed czar, I would let these people come and play their music and nobody would be there to listen, or the five people who really care, because we're creating exactly what they want: publicity for a minority point of view by prohibiting it.

SIMON: I think we're repeating the mistakes of the past, saying that because these artists are Cuban nationals there's something that's wrong about that. I must say I was thrilled when I saw in the Miami Herald a column by Carlos Saladrigas, who said, "What are the lessons we learned from the Elian matter so we can make a new beginning for the exile community?" One of the sentences that jumped out at me was this: "Unlike Castro, we have nothing to fear from the free market of ideas." I thought that was a turn of a corner, a sea change in public policy -- if that could become a public policy in which there would be no retaliation against FIU because they included a Cuban-made film, which of course, ironically, was critical of the Castro regime and life in Cuba. That is exactly the kind of movie that public policy here should encourage people to go see.

DIAZ: The media makes the controversy in the wrong place. Now we're getting close to where the controversy really does lie. The marketplace of ideas includes the fact that certain ideas will have very little market support.

SIMON: And it also mean the right to protest. What happened here when Los Van Van appeared I thought was clearly evidence of maturing in the community. What I noticed also was people for the first time saying -- I think Ninoska Perez was saying -- "We're not saying that Los Van Van doesn't have a right to perform here, but that it's insensitive that they do it in the heart of the exile community." That's a sea change.

DIAZ: And see, that's exactly the message I'm sending. Perhaps it's a sea change in the way people have perceived the Cuban-American community. Perhaps it's a sea change in the way our leadership has articulated the position of the Cuban-American community. But it is not a sea change in the way that the people feel.

SIMON: I mean a sea change in that they dropped efforts to try to ban them.

DIAZ: Well, "they" are the leaders of the community or the political leaders who pander to emotions, but don't necessarily accurately reflect the emotions. When you say that it is a sign of political maturity in this community to hear people say, "They have a right to come but we have a right to protest and we also have the right to say it's terribly insensitive for you to present this in the heart of the community," Howard, that is the message people in the Cuban-American community are hungry to hear from you. Hungry to hear from you. That is the message that will start to bridge the gap. It's the acknowledgement of the grievance.

If you want to have a conversation with another person who feel aggrieved, go into that conversation first saying, "I acknowledge your grievance, I understand your grievance, and I even may agree with your grievance. But your grievance doesn't allow you to do A, B, and C." If you do that, you've started the conversation in a way that people can accept what follows in that conversation.

I think in the Cuban-American community there is an incredible hurt, an incredible hurt on the part of people who think, Does anybody realize what we suffered? Does anybody understand our pain? And I think non-Cubans in this community really do understand the pain; I really truly believe it.

MULLIN: Let's return to the community disconnect for a moment. As witnessed by the recent controversy regarding the Miami City Ballet, there's a perception or a reality out there that in addition to the fear of being labeled anti-Cuban or racist, people fear retaliation.

DIAZ: Look, that is a bunch of malarkey. To say to someone "behavior has consequences" -- you have to interpret it in the context in which it was given. I mean, Howard just said that in the marketplace of ideas you have to expect that some people are not going to agree and are going to vote with their feet, and that includes saying, "If organization A takes a point of view and it alienates 90 percent of the community, organization A is likely to suffer economic consequences from that point of view." Free speech does not free us of that. That's just a reality. And that is not retaliation. That's just a necessary consequence of freedom of association, which is another part of the First Amendment. Where things get blurry in this town is when the sanction seems so severe, the sanction seems so real and so immediate that it stops being a rational consequence of choosing an unpopular position, and it becomes punitive. And that is wrong.

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