Frank Talk About Free Speech

Attorney Victor Diaz chats up the ACLU's Howard Simon

Victor Diaz and Howard Simon have been in the news lately. Diaz, a local attorney, figured prominently in a story about efforts to discourage the Miami City Ballet and other arts groups from challenging Miami-Dade County's so-called Cuba ordinance. That law prohibits the county from supporting any individual or organization doing business, directly or indirectly, with Cuba or Cuban nationals.

Simon, who is executive director of the American Civil Liberties Union of Florida, figured prominently in a recent federal lawsuit brought by the ACLU that seeks to overturn the Cuba ordinance, particularly as it applies to art, culture, and entertainment. In response to the ACLU's request, Miami federal Judge Federico Moreno last week temporarily suspended a provision of the ordinance that required arts organizations to sign an affidavit assuring compliance with the law before they could seek county funding.

Also last week, both men wrote opinion pieces that appeared in the Miami Herald. (Diaz is a "visiting member" of the paper's editorial board.) Those are reprinted below. This past Friday Diaz and Simon met at the New Times office, where they discussed the Cuba ordinance, freedom of expression, and a deeply divided community. --Jim Mullin


VICTOR DIAZ

It has become fashionable for certain liberal voices in the Cuban-American community to state categorically that they speak for the "silent majority" of Cuban Americans. I uphold their right to hold and express their liberal views, but the degree of popular support for those views should not be misrepresented.

The Herald's public-opinion polls show a high degree of agreement among Cuban Americans on most issues of U.S.-Cuba policy. A greater respect for minority views should be encouraged, without silencing the right of the majority to exercise its collective clout. Being in the minority entitles one to have his or her views heard and respected, but that doesn't mean that minority views should be expected to prevail over those of the majority.

The same can be said about the effort under way to repeal the Miami-Dade County ordinance barring county-subsidized groups from presenting artists from Cuba. One cannot read the ordinance and claim the ban to be "censorship and intimidation."

The ordinance doesn't prohibit anyone from sponsoring or presenting a Cuban artist or group in Miami-Dade County. It simply prohibits the use of county halls or auditoriums and county subsidies if one engages in those activities. Anyone wishing to present Los Van Van using his or her own money and permanently forgoing public subsidies can do so. There is nothing in the ordinance to stop them.

Rational discussions of such issues require a balanced presentation of the underlying facts, particularly when dealing with an issue of such emotional volatility. We share a responsibility to try to understand both sides of this issue before arriving at the unshakable certainty that so often characterizes opinions in South Florida.

The views that ultimately should prevail ought to be the most persuasive to the greatest number of people.


HOWARD SIMON

Is it possible that, at long last, we might have an open discussion of Miami-Dade County's Cuba policies?

Not too long ago, local politicians simply retaliated against those who failed to toe the line. Recall the firing of Peggi McKinley from the Media Advisory Board for questioning the economic impact of the county's cultural embargo -- an action still being challenged in court by the American Civil Liberties Union?

Of course county commissioners have acted irresponsibly by using the Cuba ordinance to drive business elsewhere -- an estimated $40 million from the lost Latin Grammy Awards and another $130 million by rejecting the 2007 Pan-American Games, all because Cuban nationals might participate. But this issue is more about censorship than about damage to the local economy.

Censorship is not merely the crude seizure of magazines from airport newsstands; it also is being imposed locally by the power of the purse.

Yesterday a federal judge rightly ordered Miami-Dade County to accept applications for arts and cultural grants without requiring applicants to sign an affidavit swearing that they do not engage and have not engaged in business with a Cuban national, the government of Cuba, or persons engaged in business with Cuba. The judge referred to provisions of the affidavit as "offensive."

At issue in the lawsuit filed by the ACLU are not just grants but the right to use publicly owned county facilities for artistic and cultural events. Currently arts groups aren't even permitted to use private funds to stage an event that involves a Cuban national.

County commissioners illegally impose such requirements despite federal law that exempts artistic, scientific, and cultural exchanges from the embargo on trade with Cuba. The U.S. District Court's initial ruling came yesterday because that was the deadline for submitting the affidavits and grant applications.

Florida International University now faces economic retaliation from county commissioners for showing Life Is to Whistle at the recent FIU/Miami Film Festival, apparently in violation of the Cuba ordinance. The film nonetheless added to the public's understanding of the difficulties of life under Castro -- just as the plays of the South African playwright Athol Fugard gave us a better understanding of life under apartheid.

The commission majority -- and possibly a majority of county residents -- may favor censoring arts organizations by prohibiting the spending of county dollars on what is politically incorrect in Miami-Dade County. But, and here's the rub, there are limits on the power that even a large majority can wield.

Government "may not prohibit the expression of an idea because society finds the idea itself offensive or disagreeable." That, the U.S. Supreme Court has said, is the bedrock principle underlying the First Amendment. It is also hypocritical to impose censorship in Miami under the guise of fighting repression in Cuba.


MULLIN: Victor, you've voiced two basic concerns regarding efforts to challenge the county's Cuba ordinance: that this is not the right time, and that there needs to be more discussion before people make up their minds. Let's start with the latter.

In 1992 county commissioners passed their first anti-Cuba ordinance. In 1993 they strengthened that law. In 1996 they greatly expanded the law to cover cultural affairs and to require an affidavit. And in February of this year they tightened the law once again by requiring that the affidavit be signed in advance. Each time this issue came up, the pros and cons were debated in the open and covered in the media. And each time proponents of the anti-Cuba measures prevailed. How would you respond to those who say there's already been substantial discussion, the responsibility for understanding has already been met, we've already listened to both sides?

DIAZ: I don't think anywhere near the vigorous discussion taking place in this community now has ever taken place regarding this issue. Anyone who lives in the city can probably tell that the level of discourse now is much greater than it's been any time since 1992. What I was trying to address is that it seems to me there has been an effort to get individual organizations and civic groups to take a position on this issue at this time, taking votes. I think those groups should consider that this is an issue that is now being litigated in the courts, that there are some fundamental constitutional questions that need to be decided, and that the resolution of those constitutional questions by the United States Supreme Court may moot substantial parts of this discussion.

So I agree with Judge Moreno, who said we should preserve the status quo until the Supreme Court rules. However, if people want to proceed to a vote on these issues -- and they certainly have a right to do so -- then I think they should try to listen to both points of view. To accept this thesis that because an issue has been discussed once in a community many years ago, that individual people sitting in a deliberative body really have heard both points of view and really understand both points of view -- I think that is oversimplification.

And the other day when we were both together, Howard and I, at the Production Industry Council meeting at the City of Miami Beach, I heard people say, "I learned some things that I did not know." I think we both have an interest in seeing that happen because I think there probably is more common ground on some of these issues than the way it's being portrayed now. And I am afraid that too many people are making up their minds on the Cuba ordinance based on their sentiments, their highly emotional sentiments on both sides about what's going on in this community, as opposed to truly understanding the law, how it operates, the legal issues.

MULLIN: Why do you think this is the wrong time to be raising opposing views? Why not now? Why not lay out everything on the table for discussion?

DIAZ: I don't think there's anything wrong with laying out everything on the table for discussion. There's absolutely nothing wrong with that. I think we have to understand that how we do it is going to affect the reaction to it. I think we would be better served by waiting for the United States Supreme Court to define the constitutional issues, the supremacy-clause issue, the First Amendment issues. But even if people don't want to wait to see what the courts do, there's nothing wrong with people debating it. But I think every group that takes up this issue should make a conscientious effort, bend over backward to make sure they have an inclusive process that allows all points of view to be expressed before they arrive at an ultimate conclusion.

SIMON: I actually think on this issue I may agree with Victor. I don't know that there has been a lot of public dialogue and discussion on this thing because I think there's been too much orthodoxy on the subject. And in fact I think there've been forces that have repressed public discussion on this matter. I don't know how much discussion took place at the county commission during all those years when they adopted the ordinance, and whether they had public hearings or not. But I do know there have been efforts to avoid public discussion on this.

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.

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.

MULLIN: It is a political issue, Victor. It began as a political issue on the county commission. This is a child of politics.

DIAZ: Two wrongs don't make a right. It was injected into the arena as a political issue and it could be taken out of the arena via politics. But Howard has given us a better way.

SIMON: I thank you for that compliment, but I don't think it should be forced from politics, regardless of the history. First of all it's not entirely certain that the court's going to rule the way you and I think. Yogi Berra told me a long time ago: "I don't make predictions, particularly about the future." But if the court rules as you and I both think it's most likely to rule, that's not the end of it. What that means is the county commission is going to have to rethink its approach to the regime in Havana.

They may have to respond by repealing the ordinance, reshaping the ordinance. They're going to do something. I mean, this commission is not going to be bereft of a response to the regime in Cuba. So I think a discussion out in the community is important.

Let me go back to something else Victor said that I think was very valuable, when he talked about the value of discussions like this. I was taken by your comment that maybe there were people in the community who thought that part of our motivation was an all-out assault on Helms-Burton or the embargo or something like that, and didn't know that we were motivated entirely -- as ACLU always is -- by First Amendment values and censorship and things like that. I think that speaks to a larger issue of how separated this community is.

I've lived in segregated parts of the country -- Detroit, Chicago, and elsewhere -- but this community is so separated. I mean, it's two or three different worlds of people who live in their own segregated areas. They go to eat in their own restaurants, read their own newspapers, listen to their own media. And the fact that some people may have perceived what we're doing as an all-out assault on the embargo and so misunderstand the purpose of the ACLU, really speaks to the fact of what little crosscultural dialogue there is in this community.

DIAZ: I want to totally, 100 percent register my agreement with you. That absolutely is one of the key issues in this community, and one of the key reasons that we are in the situation that we are in with the ethnic and racial tension we have. And one of the key problems that we have to remedy in order to get out of this mess -- is what I call the great disconnect. There is a great disconnect between what's being said at one level and what's being heard and received at another level.

MULLIN: What's the cause of that disconnect?

DIAZ: Number one, we are very geographically segregated in this community in ways that we don't like to admit. Number two, I think that our sources of information are also very much tied to our racial and ethnic identities. I think that in the African-American community there are very strong associations with certain radio stations and with certain newspapers and with the church as a means of educating the community. In the Hispanic community there is again a very strong association with radio stations. And the same thing with the Anglo community. They're all the same except they're different sources they're all listening to. You want to see that disconnect? Perhaps the most striking way is to compare the coverage of any issue in the last six months in El Nuevo Herald versus the coverage in the Miami Herald.

SIMON: It's hard to maintain a community when there isn't a system of shared values. And I don't think there is a system of shared values here. There are separate and distinct communities here. The Elian situation didn't cause it; it uncovered it. And it uncovered something that is very dangerous.

DIAZ: Exactly. And not only dangerous but fundamental. You know, I've been in some meetings, "community conversations," where these civic leaders get together and talk about the issue. To me that kind of feel-good rhetoric is not going to address the real fundamental problems we have in this community. How do you get the readership of the Miami Herald to understand what is going on on WEDR or Radio Mambí? How do you get the point of view of Howard Simon to the people who for whatever reason choose to get 100 percent of their news in Spanish? The New Times can't get that message to them. This conversation is never going to get to those people.

SIMON: Let me give you a very concrete example. I've lived in New York, Chicago, Detroit, and I can't imagine another community in which the multiracial and multiethnic leadership would not have risen up the day Raul Martinez's comments were reported in the Herald and uniformly condemned those comments. What idiotic, racially, ethnically divisive comments those were.

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.

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.

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.

SIMON: But wait a minute. What we're talking about here are artistic judgments. You're avoiding the public-policy problem facing Miami-Dade County now. If the Concert Association of Florida puts on a ballet and they hire as one of their principal dancers a person who's a Cuban national, if the Miami City Ballet puts on a ballet, and a member of their company is a Cuban national, why should they fear losing their cultural-arts grant from the county? We're talking about who should make artistic decisions.

DIAZ: They shouldn't have to fear that inappropriately. They should have to know that it's a consequence of it where it's appropriate. The reason that the issues related to Cuba are the hot-button issues in this town is that we can't escape the fact that in this town there are 700,000 Cuban Americans. There are 10,000 people in this town who had a relative murdered by Fidel Castro. There are 50,000 people in this town who've had a relative tortured by Fidel Castro. There are thousands of former political prisoners in this town. For these people and for the 500,000 Cuban Americans who are old enough to remember having to leave their homeland, the issues related to Fidel Castro are not a historical footnote; they are living, breathing wounds.

SIMON: Victor, we're talking about public policy, and the public policy of Miami-Dade County has been official censorship. Debbie Ohanian wants to rent the American Airlines Arena for a Cuban-music festival. Why should that be prohibited?

DIAZ: I think the United States Supreme Court is going to answer that for us very quickly, and it's not going to be prohibited. My prediction. But let me ask you another question: Why doesn't Debbie Ohanian put on that production in the City of Miami Beach in the Theater of the Performing Arts or the Colony? And that's a question that people are entitled to ask. She has the right to choose any forum she wants --

SIMON: No she doesn't.

DIAZ: She should have the right to choose any forum she wants to present her point of view. Let's assume that becomes the law in this community, that she can pick any forum she wants. Unless she's trying to make a political point, why would she insist on doing it in the heart of the Cuban-American community? There is some element of provocation going on; there is some element of insensitivity to what's going on.

SIMON: Did you consider the fact that maybe it's also the best venue in the area?

DIAZ: I told this to Debbie today, I said, "Debbie, if you win your lawsuit, I can't wait for you to put on a Los Van Van concert at the American Airlines Arena, because you're going to lose your shirt. You're not going to fill the arena and you're going to just lose your shirt and you will send the best message to deter people. She may fill the hall once but she won't fill it twice.

I want to take this outside Miami for a minute. We do need to understand these issues outside the context of Miami. Another thing on which I think Howard and I agree is that by continuing to frame these debates only as Cuban issues, we make it less likely that the debate will be heard.

SIMON: I agree with you. This is not a Cuban issue; these are generic constitutional issues. But they are generic constitutional issues that apparently have application everywhere else in the country except here. Everywhere else in the country it is recognized you cannot deny public facilities based on the point of view that's going to be expressed or on the messengers delivering it. Everywhere else in the country it's recognized that you cannot deny cultural-arts grants because you don't like the particular message. Everywhere else except here. How could it be that Los Van Van has a 25-city tour and they have to --

DIAZ: Well, everywhere else in the country there's not 700,000 Cuban Americans.

SIMON: That does not justify suspension of the First Amendment. I sat through hours of those negotiations [between city officials and Ohanian] and they were pointless, needless, frustrating. It was as if the people were acting on Joe Carollo's instructions: Do what you can to prevent this concert from taking place in this county.

DIAZ: And I think some people are rethinking the wisdom of that policy. But my position is that the easiest way to get to where you want us to be is to let this matter be resolved in the courts. I believe that the political fallout, the emotional fallout, the divisiveness -- all of those things will be minimized if the result comes from a process that we as Americans have been taught to respect, which is the rule of law. You know that it's much easier for you to get the county commissioners to amend the ordinance to create a cultural and people-to-people exchange if they're responding to a Supreme Court opinion. The county attorney will go in and say, "You can go to your constituents and explain to them that you have no choice. The United States Supreme Court ruled this way and therefore you have no choice but to do it this way."

Yes, this is uniquely an issue that affects our community as it relates to the controversial use of county facilities for Cuban artists and performances. But also I think we really owe it to the community to tell them that there's a bigger issue here, that this is a broader constitutional issue.

MULLIN: It would be nice if we had leaders in the community who could successfully and selflessly reach out to all segments and say, "This is the goal we want to achieve."

DIAZ: We're beginning to accomplish that.

MULLIN: We are? Is there leadership out there I don't know about?

DIAZ: No. It's evolving.

SIMON: I thought that was a wonderful statement by Carlos Saladrigas. It's got to come from the grassroots like that because these commissioners are frozen in time.

DIAZ: Politicians always react to their constituencies. Political leaders sometimes lead but they mostly follow. I mean, let's look at the president of the United States.

Jim, I think there is an evolution going on. I can tell you within the Cuban-American community there is a very healthy debate going on internally, and I think initially it needs to occur internally, not externally. And there are quietly emerging new voices and new points of view. You may not 100 percent agree with what we're saying, but you must at least agree that we're articulating it in a much more intelligent and possibly persuasive fashion.

But the media is doing us a great disservice. I guarantee that a newspaper article written about this conversation would never have noted the amount of agreement Howard and I have on these issues. Controversy sells newspapers. Ironically news also sells newspapers, and the news should be that there is an evolution occurring in the community, which is a healthy evolution.

I've been studying American history, trying to understand how the Irish Americans handled political empowerment in Boston, and how the Italian Americans handled political empowerment in New York, and how the German Americans handled political empowerment in Chicago, and on and on. The first wave of immigrant empowerment in politics always tends to be very highly susceptible to demagoguery. That's how you got Tammany Hall in New York, that's how you got the Daley machine in Chicago, that's how you got the borough politics in Boston. And that's how you got the kind of politics that characterize the City of Miami.

People are on the outs for so long that when they start to get to the political tipping point, when they have enough votes to elect their candidates to office, you get that mentality: He may be a crook but he's our crook; they had their crook in there for years and years and years, and now it's our shot. And not just in Miami, folks.

What we're going through here in Miami is not any different from what happened in Boston, in New York, in Chicago, where other sizable ethnic blocs were incorporated into the political establishment. Then the second generation of leadership generally comes from people who were brought up in the system.

One of the things I think these debates lack is giving people a way out. Some constructive solutions. For example, illiteracy is a huge problem in this town's Hispanic community. The inability of people to speak English is a very divisive thing in Miami-Dade County. Illiteracy in the Hispanic community is a problem for two reasons. It contributes to the disconnect. They're getting their media from Spanish-language television and Spanish-language radio, so they don't have the benefit of other points of view. It also contributes to the geographic segregation, the enclaves.

SIMON: Oh, that's a lot of it. I live in a Spanish enclave in which the stores I go to are mainly Spanish speaking. And I've noticed that people can grow up and live in this community not needing to speak English or deal with English language.

DIAZ: And we have a really schizophrenic attitude about that. We condemn it. It's easy to condemn it. And I believe it's a very serious problem. But you know, it's what's filling our hotels with all the Latin-American tourists who come here because they don't have to know English to come here and shop. So they come here instead of New York, where they're going to have much more difficulty. And it's the reason we have a lot of commerce and international trade in South Florida.

SIMON: I don't condemn that this is a multilingual community. I condemn the segregation of the community.

DIAZ: I also condemn that fact that we're not multilingual. We are monolingual in many ways.

SIMON: We have a language problem in this community -- it's monolingualism.

DIAZ: We need to make people bilingual, and that's not easy. You look at Canada and the way they address the same problem -- they have very serious problem with French and English -- they have a huge commitment on the part of government to provide bilingual education to every child in every context, and to every adult, so that a person who feels they don't have the skills in one language can acquire them. You know, we talk the talk but we don't walk the walk in this town when it comes to really committing to English literacy for everyone without having to forfeit your native tongue. Until we deal with that, we're not going to make a lot of progress.

We also have to deal with the incredible poverty in the African-American community. The African-American community in my opinion is constantly being used as a political pawn in the struggle between other groups. And you know what? Neither group has delivered for their agenda.

I know it is very frustrating for African Americans to see Cuban Americans come into this community and start economically beneath them and end up economically so far above them. It only reinforces for them how much racial discrimination there is in this town. My message to the African-American community is that, you know, Cuban Americans didn't create racism. But we certainly are guilty of not having done enough to address it in this town since we've acquired political influence.

There's so much common ground out there. For example, immigration policy. We shouldn't be defending special status for Cubans Americans. It is wrong when Haitian children are sent back to Haiti if we're asking for political asylum for Elian Gonzalez. There's a common ground. There's an opportunity for the African-American community and the Cuban-American community to work together to change U.S. immigration policy and address it head on. That kind of thinking outside the box is not going to come from people who are pandering to electorates. We shouldn't expect it to come from the politicians.

MULLIN: Maybe we'll get private citizens to find us a way out, but right now we're stuck with these politicians.

DIAZ: No we're not. I'm going to give you a kind of put-your-money-where-your-mouth-is example. I'm not politician and I have no desire to be one. But I do have a desire to be part of the civic debate. Does private industry encourage that? No. In fact it strongly discourages it. And so a lot of our best and brightest who are interested in continuing to be productive in their chosen field or profession are taken out of the debate. All these civic leaders, they meet at the Mesa Redonda and they meet at the Non-Group and the chamber of commerce, and they talk about how we need to clean up political corruption and we need to find new leadership in our community and all that stuff. And when it comes time to put their money where their mouth is -- which is, are they willing to support their people taking time out to give a little so that one person doesn't have to give it all? -- I don't think there's the kind of follow-through there needs to be.

SIMON: Assuming some responsibility. I absolutely, completely agree with this. The new leadership has got to come from the business community. It seems to me the business community probably recognizes more clearly than anybody else how damaging -- not only to the Cuban-exile community -- how damaging to the economy, what has happened to the economy from the leadership, the national stature has an impact economically. I completely agree that if there's going to be new leadership, we're not going to find it from the politicians. It's going to have to be people in the business community who are going to say we're going to do it for ourselves and we're going to have to live up to our responsibilities.

DIAZ: And not just be the kind of player who goes to the Thursday-morning chamber breakfast. That ain't going to get us there, folks. The only thing that's going to get us there is, okay, let's see, you are in charge of working on radio, you radio station X. And you, Sam, are in charge of dealing with the Miami Herald editorial board. And you, Tom, need to go deal with voter registration. And five of us are going to gang up on the school board. Divide up the responsibilities, develop the program, and follow through on advocating for the interests of the community. The politicians will follow once they see the people respond.

I have this great faith in the people. I think the people are manipulated. The greatest failure of the politicians has not been the national stature of South Florida. The greatest failure of the politicians is the amount of personal angst they've been responsible for over the last 30 to 60 days. I'm talking about fights in families, I'm talking about husbands and wives who can't discuss an issue, I'm talking about in my own family -- I've had violent arguments with my brother-in-law and my sister over this issue.

SIMON: It is true that errors in judgment and the incompetence of the local political leadership have really damaged the standing of our city in the eyes of the rest of the nation.

DIAZ: Yes, it has. But I'm less concerned about that than the fact that my 72-year-old mother and 78-year-old father feel really, really -- because of the Cuba issue and because they suffered so much over Fidel Castro -- I can't tell you how much pain they're in right now.

SIMON: Tell me something about the source of their pain. The Elian resolution? The isolation of the community? Nobody came to the defense of --

DIAZ: Not that nobody came to the defense, because a lot of people came. But that only the Cuban Americans came to the defense. I cannot tell you how many times people cited to me in a favorable way in the Cuban-American community Norman Braman's letter in the Miami Herald. I don't know whether Norman Braman is in favor of the Cuba embargo or not. I don't know if Norman Braman is in favor of the Cuba ordinance or not. But that letter had a huge impact in the Cuban-American community. It was someone saying, "I'm validating the grievance."

I don't think that my mother and father really care whether Los Van Van play in the Dade County Auditorium or not. And I don't think they really care if the affidavit is signed before or after. But they care that this community that they have worked in and contributed to for going on 40 years, that there be a recognition that what was done to them, and what is still being done to people in Cuba, is wrong. And again, I know that people feel that way. But I don't think that feeling is understood or shared. It's hard for me to articulate it.

SIMON: I agree with what you're saying, because sometimes there's been a flirtation with Fidel historically and maybe even currently by liberals. Or maybe it's because the Cuban-American community hasn't been able to sell their message. But for some reason I think it is true that the perception of the dictatorship in Cuba is not seen in the same light as dictatorships elsewhere.

DIAZ: Cuban Americans don't control the United Nations Commission on Human Rights. And we do not control Amnesty International. And we do not control the Inter-American Press Association. And we don't control the United States State Department. And all these groups have issued reports in the last six months vehemently criticizing the Castro regime. But in the debate on some of the recent issues, people feel that's been lost.

SIMON: See, here's where my anger goes to the local political leadership. I mean, look. Cuba is a dictatorship. We're a human- rights organization. We favor human rights in the United States, in Miami, and all over the world. The fight against Castro has got to survive post-Elian. The fact that your parents could be so hurt by the reaction to the Elian situation -- when the fight has got to go on after Elian, and it's so much more important than Elian. The fact that local leadership would have made the fight against Castro a fight about Elian is misleadership.

DIAZ: There's blame to go around in that. The justice department and its immigration service also shifted positions in the middle of that debate and created a problem. But I don't want to go there. The point you're making is absolutely correct, which is that we ended up in this community Cuban Americans versus the United States of America. That really bothers me as a Cuban American. What we should have is the United States of America versus Fidel Castro. Or at least Cuban Americans versus Fidel Castro. Our anger should not be focused at our fellow residents. It should not be focused at this country and its system of justice. We owe so much to this country.

It is hurtful to us to have us portrayed as pitted against our own country. And it is hurtful to Americans. I can appreciate it when they say, "Well, look at these ingrates. They come here, we give them freedom and opportunity. We make a special exemption in our immigration law so many of them can come here. And how do they reward us? With ingratitude." I can tell you that just as strongly as the hatred of Fidel Castro is felt in the Cuban-American community is the love for this country. And the saddest thing is that that message hasn't gotten through. Cuban Americans are fiercely patriotic to the United States. And we did something wrong when all that we were displaying was the Cuban flag. I know why we were displaying Cuban flags -- out of a sense of cultural pride and nationalism and opposition to Fidel Castro. But to the non-Cuban audience, it looked different.

SIMON: And it has to be said in all honesty that the non-Cuban audience around the rest of the country has a certain stereotype of the monolith.

DIAZ: I'm more concerned about the local non-Cuban audience. I can tell you, even in my workplace -- I don't want to get myself in trouble; my boss is the great mediator Aaron Podhurst -- but my workplace is very divided. If we can't mediate the conversation in our own workplaces and our individual homes, how do we expect to mediate for our community?


Related Links

ACLU of Florida
Ruling in Cuba ordinance case press release and links to court documents, May 16, 2000

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