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ACLU Wins Last-Minute Appeal of Gag Order,Protects Cuban Exile Leader's Free Speech Rights
February 27, 2001
MIAMI ? Less than four hours after the ACLU of Florida filed an 18-page motion on behalf of Cuban exile leader Jose Basult?'s First Amendment right to free expression, the Eleventh Circuit U.S. Court of Appeals in Atlanta stayed a federal gag order aimed at stopping him from making a memorial flight to commemorate the fifth anniversary of the Cuban military shoot-down of two civilian planes flying over the Florida straits.
On Feb. 23, a three-judge panel ruled that it was inappropriate to apply the broadly-worded and unclear court orders issued by U.S. District Court Judge Joan A. Lenard to Basult?'s "proposed activities." The Court of Appeals ruling permitted Basult? and other members of his exile group Brothers to the Rescue to fly over "Martyrs' Point" ? the area in international waters where four civilians were killed when Cuban MiGs attacked their Cessnas. Basult? has made the memorial flight every year since 1997.
"Mr. Basult? was very forthright with Judge Lenard from the very beginning, informing her, in good faith, of his historical involvement in these types of activities," said ACLU of Florida Legal Director Randall C. Marshall, who drafted the emergency motion. "He is a public figure who has continuously used speech and activities to get his message out to the Cuban people. But because of such vague and overbroad gag orders he was basically at the court's mercy, left to determine ? on his own ? whether anything he said or did would cause him to be in contempt of court."
Basult? took off at the controls of his Rescue plane during the early afternoon of Feb. 24, less than 24-hours after the appellate court ruling. The Eleventh Circuit order also allows Basult? to continue coordinating a petition drive calling for the indictment of Cuban President Fidel Castro and others for the murder of the pilots and passengers.
Judge Lenard is presiding over the ongoing trial of alleged Cuban spies, and Basult? is one of the primary witnesses in the heavily-publicized case. He could have faced jail time for violating the Feb. 16 and Feb. 22 court orders, which prohibited him from making "extrajudicial statements" or taking "actions intended to influence the public opinion or the jury regarding the merits of the case."
In the emergency motion, the ACLU's Marshall argued that Judge Lenard's orders had a "severe chilling effect on Basult?'s protected speech." He goes on to say in the brief that the order could have been applied "to prevent Mr. Basult? from talking on a street corner ... and to silence the message of his organization. Ultimately, it appears that the court seeks to prevent Mr.Basult? from taking his message to the Cuban people."
The ACLU of Florida will continue to represent Basult? while the criminal spy trial is in progress to ensure that his future actions are fully protected under the First Amendment.
