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Legal Issues in the Cuba Ordinance Case
The resolution - when applied to artistic and cultural expression - works against U.S. foreign policy and its larger goal of supporting human rights and freedom in Cuba. The Cuban ordinance also conflicts with federal law in its treatment of arts organizations - the Berman Amendment to the federal Cuban Trade Embargo permits cultural exchanges between the United States and Cuba, including the sale of Cuban books, records and tapes. Additionally, the ACLU argues that the county resolution violates free speech and association and due process provisions of the First and Fourteenth Amendments.
Proponents of a cultural exception and free speech advocates argue that restricting cultural exchange subverts the resolution's purpose of promoting democracy. Opponents, however, argue that the county should not generate revenue from a repressive government with a history of violating human rights.
First and Fourteenth Amendment claims
The ACLU asserts that the Cuba ordinance violates the First Amendment, which prohibits the government from abridging artistic and cultural expression and other forms of free speech, and prohibits punitive actions by the government based on individuals' associations. The restrictions constitute censorship based on content, as was the case with the Cuban-made film Life is to Whistle. Although the film was made under the auspices of the Cuban government, it was widely interpreted to be subtly critical of Cuban government and society. That didn't stop the county, however, from withdrawing nearly $50,000 in funding promised to Florida International University's Miami Film Festival.
By allowing County Commissioners to suppress unpopular speech based on the nationality of persons expressing their ideas, the ordinance, argue ACLU lawyers, infringes upon the right of free association and speech of artists and promoters - two core protections afforded under the First Amendment.
The Fourteenth Amendment protects all persons living in this country from being deprived of life, liberty or property without due process of law. These due process protections, which essentially dictate fairness in government procedures, are applicable to the Cuba ordinance in that guidelines clearly outlining the procedure for applying for permits or grants must be established so that no one - not even commissioners - will have the sole discretionary authority to approve waivers to the policy. Commissioners, asserts the ACLU, are violating the due process rights of applicants by selectively enforcing the ordinance based on the content of the musical performances or cinematic productions rather than by following certain rules and procedures to make a decision.
Violation of the Foreign Affairs Power
Cooperating attorneys for the ACLU assert that the county is interfering with the federal government's foreign policy and trade responsibilities by passing legislation at the local level that essentially restricts commercial transactions with repressive governments and conflicts with the foreign policy dictates of the federal government.
Violation of the Foreign and Interstate Commerce Clauses
The complaint also alleges that the Cuba restrictions violate the Foreign Commerce and Supremacy Clauses of the U.S. Constitution by interfering with foreign commerce and imposing restrictions on cultural commerce with Cuban nationals that conflict with the requirements imposed by federal law. The plaintiffs in this case would encounter no ban to organizing events that have ties to Cuba in any other county or municipality in the United States. Therefore, say ACLU lawyers, they should not be prevented from doing the same in Miami-Dade County.
