The Howitzer and the Flea

Wayne Smith is no friend of the Cuban American National Foundation. For many years -- at least since he left the foreign service after serving as chief of the U.S. Interests Section in Havana from 1979 to 1982 -- he has been an outspoken critic of the U.S. economic embargo of Cuba. That point of view is going to put him at odds with the foundation's confrontational approach to the Castro regime. But as with so many things Cuban, this difference of opinion runs much deeper than a polite debate among policy wonks.

As a professor at Johns Hopkins University, a Washington think-tank analyst, and a high-profile media source, Smith over the years has expressed his disdain for those who would refuse to engage in dialogue with the Cuban government. Not surprisingly, the Cuban American National Foundation's hardball approach -- squeeze at the throat till blue in the face -- has made it a favorite target. One classic soundbite: "If the perception of the Cuban people is that their choice is one between Fidel Castro and...the Cuban American National Foundation, they will fight to the death for the present system."

Now, however, it's payback time for leaders of the foundation. Now it's Wayne Smith they've got by the throat, and you can almost see them grinning as they grip. Smith is in court in Miami this week, the defendant in a defamation lawsuit brought against him by the Cuban American National Foundation (CANF).

It is rare that such lawsuits actually go to trial; they are almost always resolved out of court. The CANF action against Smith is unusual in another way as well. Commonly when a person files a defamation lawsuit, he sues not just the person who committed the offense, but also the publisher or broadcaster, sometimes even editors or producers. Casting a wide net is thought to increase the chances of recovering damages.

Not so in this strange case. Wayne Smith is the lone defendant. His humble finances have forced him to rely upon a friend to defend him without charge. While a defense fund ran dry many months ago after a few buddies chipped in somewhere between $5000 and $6000, CANF has bankrolled an aggressive legal team of at least three attorneys who are going after their prey with a vengeance. Smith, they claim, has singlehandedly done serious and costly harm to CANF. And this he managed to accomplish in about twenty seconds.

The alleged defamation took place nearly four years ago during an hourlong television documentary that included an interview with Smith. This is what he said:

"It's interesting that the National Endowment for Democracy has contributed to the Cuban American National Foundation and it in turn, through its own organization, through its PAC [political action committee], has contributed to the campaign funds of many congressmen, including some who have been involved with the National Endowment for Democracy, from whence they got the money in the first place, including Dante Fascell."

The documentary, called Campaign for Cuba, was produced by the University of West Florida in Pensacola and was aired October 14, 1992, by the Public Broadcasting System. In South Florida, it ran on WPBT-TV (Channel 2). Campaign for Cuba examined CANF and its chairman, Jorge Mas Canosa, and the influence they have had over U.S. policy toward Cuba. It also raised questions about alleged efforts by Mas and CANF to silence those in the exile community who disagree with their political positions.

A couple of weeks before it was scheduled to run on PBS stations across the nation, CANF officials obtained a copy of the documentary, and what they saw they did not like. According to court documents, they thought the program was hopelessly biased against CANF generally and Mas in particular. But what they decided they could not tolerate was Smith's one-sentence comment, which they believe imputed criminal activity.

Smith, who says he never believed and never said that any criminal activity had taken place, remains convinced that his statement was essentially true. Regardless, it can be attacked for being imprecise, and in its imprecision lies the potential for misunderstanding. The federally funded Endowment has not "contributed" to CANF's coffers but rather has issued "pass through" grants (which CANF has forwarded to a European human rights organization headed by Armando Valladares). The Free Cuba PAC has indeed contributed to many politicians, some of whom, such as Dante Fascell, voted on Endowment matters pertaining to CANF. But the Free Cuba PAC is not formally associated with CANF other than sharing membership.

Inelegantly spoken, perhaps, but probably more accurate than inaccurate.
CANF moved into high gear in an effort to block broadcast of the program, or at the very least to have the "Smith statement," as it's now known, expunged. Jorge Mas Canosa himself contacted the CEO of the Corporation for Public Broadcasting, who viewed the documentary and concluded that Smith's comment constituted "an allegation of criminality." A CANF attorney faxed a passel of letters threatening legal action. In addition to Smith, those receiving the letters included executives of PBS, the president of the University of West Florida, and individual television stations in New York, Washington, and Miami.

Despite the legal blitz, Campaign for Cuba aired as scheduled, with Smith's controversial statement intact. Five months later he learned that he'd been sued in Miami. CANF, his long-time adversary, had zeroed in on him while overlooking all others involved in the program's production and broadcast.

On friends' advice, Smith hired Miami attorney Ira Kurzban, who agreed to take the case for a reduced fee. But after failing in his bid to transfer the lawsuit to federal court, Kurzban reluctantly withdrew as counsel. He and Smith simply "couldn't work out the financial arrangements," Kurzban says, adding, "It's clear this lawsuit was brought as a way of stifling free speech on Wayne's part. It's really about punishing people who have a different view of Cuba from Jorge Mas Canosa."

Smith then turned to attorney Alfredo G. Duran, an old friend and a prominent figure in statewide Democratic Party politics. From his office in Coconut Grove, Duran began laboring without charge to extricate Smith from CANF's clutches. But two long years and countless unbilled hours later, he and his client find themselves facing a jury in the courtroom of Judge Thomas Spencer, a situation that has some attorneys shaking their heads in disbelief. A lawsuit like this, they say, should never have come to trial. Imagine the scenario: The Cuban American National Foundation, revered among thousands of local exiles, calls together a Miami jury and forcefully proclaims that its good reputation has been smeared by a man widely suspected of being a Castro sympathizer. Surely a defense attorney's nightmare.

If getting the case before a jury can be considered a triumph for CANF's attorneys, they also enjoyed a string of smaller victories along the way. Both sides appealed a number of pretrial rulings, but CANF almost invariably ended up the winner. For example, Duran sought to have the case dismissed on technical grounds, was denied, appealed to the Third District Court of Appeal, and got clobbered by a ruling that included this startling language: "The defendant prima facie committed a defamatory tort in this state...." CANF's attorneys didn't want to answer some of Duran's written questions, lost that argument, appealed, and got a ruling that broadly protected them from important lines of inquiry.

In addition, CANF's attorneys managed to manipulate the pretrial proceedings to their advantage by bobbing and weaving every time Duran tried to come after them -- to answer written inquiries in a meaningful way, to submit documents vital to his preparation of a defense, and perhaps most important, to question CANF officials under oath. In the end, Duran deposed just two of the six people he'd been seeking; the others, including Jorge Mas Canosa, ducked every time he jabbed.

Finally Judge Spencer called for a trial, despite the fact that several issues normally resolved before trial remain undecided, including questions about CANF's status as a "public figure" and its ability to quantify the damage it suffered. (CANF claims that as a direct result of the Smith statement, it has lost more than one million dollars in contributions. Demonstrating that, of course, will be another matter.)

CANF's attorneys decline to comment for the record, other than to acknowledge that Wayne Smith is not a wealthy man and that correcting the record is as important as being awarded monetary damages.

Alfredo Duran, who says the case has left him exhausted, argues that "Wayne Smith had a right to give his opinion on these types of issues. I'm a firm believer in constitutional rights. That's one of the reasons I left Cuba."

And the defendant? He won't arrive in court until the second day of trial. He's been in Europe giving lectures and attending conferences. But from London he had this to say about why he alone was sued: "It was to intimidate me and silence me. And to make my life as difficult as they can. They said they'd withdraw the suit if I would apologize. But I wasn't wrong and I won't apologize.

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Jim Mullin
Contact: Jim Mullin