- The Washington Times - Tuesday, April 18, 2000

The anti-free speech paranoia of Fidel Castro has infested Miami-Dade County. The prime symptom: the so-called "Cuban Affidavit" as a transparent ideological screen for all applicants to the County's Department of Cultural Affairs International Cultural Exchange (ICE) Grants Program. It is second cousin to the Cuban Communist Party's blacklisting and abhorrence of free speech paladins.

The affidavit's architects have buttoned their ears to the teaching of Supreme Court Justice Oliver Wendell Holmes in United States vs. Schwimmer (1929): "[I]f there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought not free thought for those who agree with us but freedom for the thought that we hate."

The Cuban Affidavit demands as a condition of ICE eligibility the applicant's past participation in a comprehensive economic boycott of Cuba like the Arab blacklisting of companies doing business with Israel. But detectives less astute than Sherlock Holmes might discern in the cultural grant affidavit earmarks of an ideological purge. Artistic merit is the customary standard for awarding cultural affairs grants. And artistic merit is no less because the applicant may have purchased a Cuban cigar during a trip to London. What seems afoot is the employment of the Cuban Affidavit as a rough proxy for possible ideological sympathy for Mr. Castro a passionate fear that a grantee might write, say, perform, paint or do anything that might be either flattering to Mr. Castro or condemnatory of the longstanding general embargo on Cuba practiced by the United States.

What makes the Cuban Affidavit further suspect is the potential for waiver. Suppose a past defender of Mr. Castro and indulger of Cuban cigars sees the light like Paul on the way to Damascus? He repents and becomes an ardent member of an anti-Castro lobby group. The Affidavit would disqualify him from ICE grants because there are no exceptions for reformed prodigal sons. A County agency, however, may seek a waiver from the Board of County Commissioners in the name of public welfare, a standardless criterion that invites picking and choosing among favored and disfavored ideologies by politically attuned officials. In addition to its anti-free speech, anti-Castro crusade, the Cuban Affidavit is tantamount to the unconstitutional highjacking of U.S. foreign policy by a local government. A major flaw during America's pre-constitutional era was multiple sovereign voices in international affairs, exposing the nation to divide-and-conquer tactics by foreign foes.The Constitution thus entrusts exclusive power over foreign affairs to the federal government.

Article I, section 10, for instance, prohibits states and localities from entering into treaties, alliances or confederations or granting letters of marque and reprisal.

Economic embargoes seeking to effectuate change in the policies of a foreign nation are time-honored instruments of the United States, which trace their beginnings to the Boston Tea Party. At present, the United States imposes greater or lesser economic sanctions on scores of nations because of human rights violations, nuclear, missile, chemical and biological weapons development or proliferation, terrorism, drug trafficking or internal military coup d'etats. Cuba is featured prominently on this infamous list.

Miami-Dade County has no legitimate interest in augmenting the anti-Castro sanctions devised by the U.S. government speaking for all the people. Everyone in the nation is affected by U.S.-Cuban relations, a point frighteningly dramatized during the 1962 Cuban Missile Crisis. County officials and constituents may employ their electoral clout and voices to seek tougher sanctions from Congress or the president, a right enshrined in the First Amendment. But what they cannot do is to fashion a parochial foreign policy toward Cuba if their political voices prove unconvincing to a nationwide majority. That is the meaning of Benjamin Franklin's instruction at the signing of the Declaration of Independence: "We must all hang together, or assuredly we shall all hang separately."

If the Cuban Affidavit is left undisturbed, state and local foreign policies to appease special constituencies will bloom like flowers in the spring. Massachusetts attempted such a gambit toward Burma, but was blunted by an adverse constitutional ruling by the U.S. 1st Circuit Court of Appeals in National Foreign Trade Council vs. Natsios (1999), a case now pending before the U.S. Supreme Court.

Defending the Constitution in Miami-Dade County when the short-term indirect beneficiaries may be Mr. Castro or Cuba is a brave task. Ostracism, epithets, and even violence may be risked, reminiscent of the terrorism against the defenders of blacks during Jim Crow. A salute is thus owed to the Miami Chapter of American Civil Liberties of Florida and five named plaintiffs for assailing the constitutionality of the Cuban Affidavit on April 5, 2000, in the U.S. District Court for the Southern District of Florida.

The nation strengthens whenever constitutional violations are repaired, but withers if they are left unattended.

Bruce Fein is a lawyer and free-lance writer specializing in legal issues.

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