Over the years, the powerful anti-Castro activist had weathered numerous negative news reports. Journalists had delved into Mas's alleged CIA connections, they had attempted to link him to covert operations in Latin America, they had brazenly expounded upon his psychological makeup, and they had probed the finances of the foundation and other organizations with which it is allied.
But no one had ever called him a mobster.
The New Republic did so three times: once on the cover, again at the article's opening as a subheadline ("Jorge Mas Canosa: mobster and megalomaniac"), and once more in the text of Bardach's lengthy piece: "People do not like Mas but they fear him.... These days, he barely bristles when called a demagogue, a bully, a mobster and worse."
In fact, 56-year-old Mas has never been criminally charged with anything. From his point of view, the magazine's use of the "mobster" appellation alone was an outrage. The article itself was hardly any better.
And the timing couldn't have been worse. Just two months earlier President Clinton, after meeting with Mas and other Miami community leaders, had embraced Mas's policy recommendations in dealing with that summer's burgeoning crisis of Cuban rafters heading for Florida by the thousands. It had been a moment of vindication for Mas, a resounding answer to critics who had long griped that he was too authoritarian, too inflexible, too prone to caudillismo, too similar in temperament to his nemesis, Fidel Castro.
Now the Washington, D.C.-based publication had revived those criticisms for the benefit of its 100,000 readers, many of whom are Beltway insiders with little knowledge of Cuban exile history and no conceptual context within which to measure the article's hyperbolic claims. (Bardach characterized Mas's relationship with Clinton as a "Faustian deal." She quoted a South Florida writer who claimed that "Mas was born and bred by the CIA" and linked with such legendary spooks as covert operations master Theodore Shackley and Miami's Felix Rodriguez, the man credited with the capture of Che Guevara.)
"The article calls our client a criminal; more than that it calls him a mobster, which is an organized crime leader," wrote Mas's attorney Hank Adorno in an October 4 letter demanding an apology and a retraction. "The article accuses our client of a variety of other abhorrent, anti-democratic and anti-social activities, from controlling the main Cuban radio stations in Miami and access to them to using them to encourage others to engage in violence, vandalism, and other malicious or dangerous conduct. The article...states that our client is, like the prototype mobster, a person willing to engage in criminal and other illegal behavior, and is malicious and vindictive. Thus it recounts repeated instances in which people who 'cross' our client suffer the consequences one would expect to suffer when one crosses a mobster: losing their careers or jobs, being physically or verbally abused, or living in fear of such acts of retribution. The article characterizes our client as a friend of convicted criminals and others who engage in immoral, if not criminal conduct.
"The article is a smear," Adorno concluded. "It is the essence of yellow journalism, written by a person with no regard for the truth or responsible journalism."
Filed a few weeks later on November 18, 1994, Mas's defamation lawsuit listed Bardach and The New Republic as defendants and cited 40 examples of objectionable text. Although initially filed in state court, the lawsuit was subsequently transferred to federal district court because Bardach is a California resident.
Miami attorneys Paul Schwiep and Jeffrey Crockett of Aragon Burlington Weil & Crockett, and Richard Ovelmen of Baker & McKenzie, are defending Bardach and The New Republic. Representing Jorge Mas Canosa are Adorno and Raoul Cantero from the Miami law firm Adorno & Zeder. (Sanford L. Bohrer, who represents New Times on First Amendment issues and is a former law partner of Adorno, was erroneously recorded in federal court as one of Mas's attorneys.)
The allegedly libelous materials were so voluminous that defense attorneys initially estimated they would need two full years to prepare for trial. In an effort to expedite the lawsuit, Judge Edward Davis split the discovery phase of the case into two parts. (During discovery, the opposing sides exchange information and interview named parties and witnesses.) The first phase would consist of research to establish whether Mas was a public figure, making it more difficult for him to win his claim, and also to determine whether the article was published with "malice" A that is, with a "reckless disregard" for the truth. The second phase would be devoted to all other aspects of discovery.